QUESTIONS AS TO SENTENCING

HL Deb 26 October 1987 vol 489 cc314-401

(1) A case to which this section applies may be referred to the Court of Appeal under section (Questions as to sentencing) below.

(2) This section applies to any case in which sentence is passed on a person—

1. (a) for an offence triable only on indictment; or
2. (b) for an offence of a description specified in an order under this section.

(3) The Secretary of State may by order made by statutory instrument provide that this section shall apply to any case in which sentence is passed on a person for an offence triable either way of a description specified in the order.

(4) A statutory instrument containing an order under this section shall be subject to annulment in pursuant of a resolution of either House of Parliament.

(5) In this Part of this Act "sentence" includes—

1. (a) any order except an interim hospital order under Part III of the Mental Health Act 1983; and
2. (b) a recommendation for deportation,

and "sentencing" shall be construed accordingly.")

The noble Earl said: At the same time I shall speak to Amendments Nos. 41, 42, 43, 31 and 260.

We come now to what is perhaps the most difficult issue with which we shall have to grapple in this Committee. The means by which the system responds to the occasional unduly lenient sentence has been the subject of several memorable debates in recent years. Whether one describes such occasions as this place at its best tends, in my experience, to depend very much on whether one was on the winning or the losing side. So I shall not venture a view on that.

What has characterised these debates, however, and indeed it has been the subject of criticism by Members opposite, has been the persistence, not to say tenacity, with which the Government have attempted to find a satisfactory solution. I make no secret of the fact that within government we have wrestled with the problem and have at different times been attracted by different approaches to it. The reason for our persistence is that the problem is too important to ignore. One can set it aside for a while, as we were forced to do in 1985 when this place rejected our proposal in the Prosecution of Offences Bill, but it does not go away. The harm to public confidence which the occasional over-lenient sentence can cause is too corrosive to be ignored. If we had not been convinced of that, we would have abandoned the search for a satisfactory solution long ago.

I believe that in the clauses which are now before the Committee in my name there is a satisfactory solution which should commend itself to a majority if not all of the Committee. I shall come on to explain the content of the provisions, but perhaps I could first outline the nature of the problem as we see it and the contribution which we hope these clauses will make towards meeting it. The problem, as I have said before, is not that sentences are generally unduly lenient, far less that there is any great crisis of confidence which calls for radical changes in our system of sentencing. Sentencing is a difficult and sensitive task and it is a tribute to the judiciary, lay and professional, that the vast majority of sentences accord very well with the expectations of the public. It is rather that occasionally, especially in a serious case where public emotions can be understandably engaged, a sentence is passed which arouses widespread concern.

At the moment there is no obvious remedy for such concern. That was why we brought forward the proposal in the Prosecution of Offences Bill, and in slightly different form in this Bill, for the Attorney-General to be able to refer sentences to the Court of Appeal and for the court to give its opinion about the sentencing principles involved. It was, we thought, a modest but worthwhile proposal. It built on the procedure which already exists for the Attorney-General to refer points of law arising in cases in which the accused is acquitted; and it provided a basis for reassurance that, even if the offender whose case was referred was not affected, lessons would be learnt for the future.

Both in the debate on the Prosecution of Offences Bill and in our earlier debates on this Bill and its predecessor, that proposal has been attacked from two contradictory directions. Some noble Lords have argued that involving the Attorney-General in any way was wrong in principle because the prosecution should have no involvement in sentencing.

Although, as I shall explain in a moment, we do not regard a degree of prosecution involvement, short of seeking to influence the actual sentence imposed, as unthinkable, we recognised that this was a sensitive issue for many. We had hoped that by framing the proposal as we did—as a procedure which did not put the offender at risk of a more severe sentence—we would avoid offending these sensitivities. Clearly that was not the case.

The second line of criticism came from those who argued that our proposal was too modest to be worth while; that it would do nothing to improve public confidence if the Courtof Appeal said, in effect, that a sentence had been too lenient but had no power to put it right; and that the court should be given power to substitute a more severe sentence. Several of my noble friends, the noble and learned Lord, Lord Lane, and several noble and learned Lords who speak from the Cross-Benches with great authority on these matters argued in that sense in our debate in April, as have many of my honourable friends in another place.

Caught, as it were, in the cross-fire, it seemed to my right honourable and learned friend that there was considerably more force in the second of these objections than in the first. As the noble and learned Lord, Lord Lane, reminded us in the debate on 27th April, several Commonwealth countries with impeccable common law traditions—including Australia, Canada and New Zealand—have systems under which their Attorney-General can take sentences to their appellate courts and there is power to increase them. The lack of a power to substitute a more severe sentence was undoubtedly a weakness in our original proposal. Our conclusion, reflected in the amendments now before the Committee, was that we should seek to rectify it.

Perhaps I could turn now to these amendments. They would confer on the Attorney-General a power to refer to the Court of Appeal a sentence passed by the Crown Court where it appeared to him to be unduly lenient. The leave of the Court of Appeal would be required. On considering a reference under the new procedure, the court would be able to substitute whatever sentence it thought appropriate, provided it would have been within the powers of the Crown Court.

My right honourable friend proposes that, in the first place at least, the power should be available only in relation to sentences imposed where one of the offences charged was purely indictable; that is, where it was so serious that it can only be tried in the Crown Court. This would cover the most harmful offences, which give rise to greatest public concern. But we do not rule out extending the new procedure to other Crown Court sentences imposed after conviction on indictment, once all those concerned have become familiar with its operation. The first of the new clauses gives my right honourable friend power to make such an extension.

We think it conceivable, though unlikely, that the procedure could give rise to points of law of such general public importance that they might usefully be referred to your Lordships' House for its opinion. This is provided for in the second of the new clauses and in the new schedule.

We have given a good deal of thought to the position of the offender whose case is to be the subject of a reference under the new procedure or more particularly whose case may become the subject of such a reference. Although I do not share the fears which the noble Lords, Lord Wigoder and Lord Mishcon, expressed in our debate in April, they raise a serious question. It would be intolerable if all those whose sentences were subject to the new procedure had to endure a long period of uncertainty about whether it would be used. In an effort to meet this concern we propose that there should be a strict time limit of 28 days within which the Attorney-General would have to give notice of an application for leave to refer any particular sentence. Any offender whose sentence was referred to the Court of Appeal would be entitled to be legally represented and to have his costs met from central funds.

My right honourable and learned friend the Attorney-General envisages that the power would be used sparingly, where a sentence was clearly out of line and not just arguably on the low side. On that basis, he would not expect there to be more than a dozen or so references each year. It is clearly difficult to be precise about this, but experience in the Commonwealth countries to which I have referred suggests that these cases, while by no means unknown, are relatively rare events.

It will be argued, I am sure, that our proposal will bring about an unacceptable change in the role of the prosecution in our system of trial. We are no strangers to that argument and it was fears about the possible effect on the role of the prosecution that caused us to bring forward the earlier, more modest proposal.

Reflecting on the matter, however, we have come to think that these fears were exaggerated. It is one thing to say, as the bar's code of professional conduct does, that the prosecutor should not seek by advocacy to influence the court's decision. None of us would want to see British prosecutors calling for particular sentences as their counterparts do in some countries. But is that really what is proposed here? The Attorney-General will undoubtedly want to be advised by the Crown Prosecution Service in deciding which cases to refer. The service will undoubtedly need to develop a familiarity with sentencing principles which it does not now possess. I do not underestimate the significance of that change. But there is a gulf between, on the one hand, the prosecution forming a measured professional view on whether a particular case is one that should be drawn to the Attorney-General's attention, and, on the other, its attempting improperly to influence the court's decision on sentence. The former seems to me an acceptable, though significant, development of existing practice. The latter would indeed be inimical to our traditions.

I think it might assist the debate if I confined my remarks at this stage of the debate to this explanation of why the Government have brought forward these amendments. I should prefer to hear the arguments of noble Lords opposite in support of their proposals on the judicial studies board and on the idea of a sentencing council before commenting on them in any detail. But I ought perhaps to say now that if these proposals are intended as substitutes for the Government's proposal they do not seem to me to measure up. Our own view, having grappled with the issue for several years now, is that it needs to be addressed more directly. That is the purpose of the Government's amendments which I commend to the Committee. I beg to move.

Lord Elwyn-Jones

Members of the Committee will be grateful to the noble Earl for almost the last observation that he made—namely, his willingness to listen to the argument. These are very important matters of public policy. They are very important matters governing the confidence of the citizen in the machinery for his protection, in particular against the background of the alarming amount of crime and its continuing increase. Therefore, in these debates today, we touch upon very serious matters.

I propose to consider the amendments in the order in which they appear on the Marshalled List. Firstly, I deal with the question of sentencing. No two crimes are exactly the same; no two alleged offenders are exactly the same. Perfection in arriving at a sentence that satisfies everybody—be they judges or the public at large—would be too much to hope for. At least, however, one would hope for greater consistency in sentencing; that is the matter to which Amendments Nos. 42 and 43 are directed.

On sentencing, we say frankly that what the Government propose is unacceptable. Amendments Nos. 40 and 41 would empower the Attorney-General—and the initiative would go to him—to appeal to the Court of Appeal against a sentence which the Attorney-General considers to be unduly lenient. The Court of Appeal is empowered to pass a more severe sentence. That is the real object and hope of the exercise, as I understand it, if the Court of Appeal thinks fit. It falls therefore initially to the Attorney-General to make the decision, and it is he alone who can initiate it. As a former Attorney-General, I do not like that at all. It plunges the Attorney straightaway into one side of the trial process—and of the prosecution process. I believe that this would be damaging to his position, well established over the centuries in representing the public interest fairly and firmly. That is one objection that I have in the light of my own experience of that great office.

What is proposed is objectionable on two matters of principle. Firstly, it would subject the offender to a form of double jeopardy—of being tried twice in effect for the same offence. The principle is quite different from what was originally contemplated by the Government of referring a problem in sentencing on a general point to the Court of Appeal rather than an individual case upon which a future course of sentencing might be based. But that is now the proposed basis; in other words, that the defendant should be faced twice with court procedures and all that that involves. As NACRO has put it, the prosecution is having two bites at the sentencing cherry. That is too attractive a simile to be worth repeating because it conveys an agreeable procedure; in fact, it imposes upon the defendant a very considerable additional burden.

The defendant would have been through the original trial proper, with the whole procedure carried out. The whole matter; the evidence against him, the police evidence about his record and character and the probation officer's report, would be canvassed, declared and publicly stated. The outcome of the trial might well be not a term of imprisonment but a fine—some would say a mere fine—or at any rate a short prison sentence. What is to happen? First, is there to be a time limit within which the Attorney-General must act to give effect to this machinery? I see no indication in the Bill at the moment in relation to that. It might be days, weeks or months later followed by the whole apparatus of reference to the Court of Appeal. How long that would take I know not.

We want guidance in relation to that. Unless I missed something, it is of importance in itself. But however quickly the matter may come forward, it means that after a man may have served part of his sentence and gone back after a fine to civvy street, to a job and his family, he is called back again and told, "Sorry, the judge made a mistake. You must go through the process again. It may well be that there will be passed upon you a further and additional term of imprisonment to that which you were contemplating or may have partly served". It would not be surprising if that man and his family were to regard that as a somewhat vindictive if not cruel process.

The second objection in principle against that double jeopardy—I hinted at this already in my observations about the role of the Attorney-General—is that it would require the prosecution to take a one-sided, partisan view in favour of greater severity on the sentence an offender should receive. It would require the prosecutor, I suppose, if one wants to be consistent, in his submission to the judge towards the end of the case to say before the jury, as in the best American fashion, "We demand a 10-year sentence at least for this matter".

I am sure that the noble Earl is not contemplating that, but there would at least be some consistency in it. The effect of what is proposed would be that initially the process would presumably start with the prosecuting counsel reporting to the Attorney-General his opinion that the sentence was too lenient, or the Attorney might learn it from the newspapers or other sources. Pressure from the media would be at the root of a great deal of this action. We are moving towards trial by television and the media in this operation. Following that kind of pressure and that kind of process the Attorney-General would then be plunged into the centre of appearing on the side, if I may put it in that way, of greater severity in the light of a case which has already been dealt with by a judge.

Lord Paget of Northampton

Were a sentence to be made subject to a review of this sort, would a newspaper which criticised it before the decision to review was taken be guilty of contempt of court?

3.15 p.m.

Lord Elwyn-Jones

That is an interesting question and perhaps the noble Earl could comment on it. It may be an additional risk involved in this whole operation. I know not. My noble friend has a little experience of contempt of court, I believe, and may be able to deal with that.

I return to what I was endeavouring to consider. Throughout the history, certainly in recent times, of our criminal procedures, the duty of the prosecutor and the prosecution has been to lay all the evidence before the court and to leave it to the judge to decide after conviction, if it is a conviction, what the sentence should be. I readily agree that the energy with which some prosecutors pursue their duties is greater than others. On an earlier occasion I think I have mentioned one counsel, who shall be nameless, who was criticised by the defence for over-prosecuting, saying "My Lords, Members of the Jury, I have come here to prosecute the accused, not to present him with a bouquet". One can understand vigour in prosecution but that is quite different from actively intervening in the sentence scene. In my submission it is right that the prosecution should not adopt, or be seen to adopt, a partisan view on the sentence and call for this or that sentence to be imposed.

It is interesting that the Government's White Paper on this matter in March 1986 did not call for such a course of action to be taken. Indeed it resisted it. But now there is a change of approach and a change of mind. While the prosecution can inform the judge of his sentencing powers and supply him with any factual information in relation to sentencing (should the judge invite such assistance) this is quite different from the prosecution adopting a view on whether a particular sentence is lenient. For better or for worse, the better course at the end of the day is to trust the judges. The standard of our judiciary at this present time is certainly as good as if not better than at any time. Certainly it is better than it was in my early days at the bar. It is for the judge having heard all the circumstances to make the decision. I agree that it is desirable that the odd idiosyncratic decision should be avoided if possible. In our amendments which follow, Nos. 42 and 43, we are proposing that greater assistance should be provided to the judiciary in the manner suggested in those amendments.

On this major issue of the power to require the Attorney-General to initiate the procedures of increasing the sentence, that is against our whole tradition in the courts. That in itself is not a sufficient argument I agree, but it is against justice and would not increase public confidence in the courts. On the contrary, it would tend to undermine it. As I say, we trust the judges, but it is important to give them as much help as possible. The Lord Chief Justice has sought to do that in the guidances that he has given on many occasions. That procedure depends on an appropriate case coming up on which such general guidance can be given. The field where the greatest inconsistency lies is between one magistrates' court and another, and magistrates' court sentences will rarely reach the Lord Chief Justice. In most of the cases they will not go to the Court of Appeal. Therefore the proposal in the major amendments which we are now examining is contrary to principle and contrary to the best traditions of our prosecution system.

Amendments Nos. 42 and 43, which we are also discussing, are from across the Opposition board at any rate in that the name of the noble Lord, Lord Hutchinson, is attached. There were eloquent speeches earlier in the matter from this side of the board and indeed some support from the other side. Amendments Nos. 42 and 43 are intended to help the courts, as near as it is humanly reasonable to expect, to achieve consistency in sentencing. The extent of the widespread and alarming variation in the use of custody for the same type of offence by magistrates' courts in particular has pointed to the need for further guidance to remedy this situation if possible. NACRO points out that in 1985 over the country as a whole 20 per cent. of adult males found guilty of indictable offences by magistrates' courts received immediate or suspended sentences, but there were startling differences between areas with similar characteristics. For example, 28 per cent. of adult male offenders in South Tameside were given custodial sentences compared with 9 per cent. in Rotherham; 23 per cent. in Manchester compared with 14 per cent. in Liverpool; 14 per cent. in Newcastle compared with 26 per cent. in Sunderland; 16 per cent. in Windsor compared with 27 per cent. in Exeter; and in two slightly parallel communities in this limited field at any rate—namely, Cambridge and Oxford—the figure was 16 per cent. in Cambridge compared with 25 per cent. in Oxford.

There were similar variations in other parts of the country and they are not, I submit, explicable in different conditions giving rise to the sentences. The Home Office Research and Planning Unit Report, Managing Criminal Justice, itself contained the findings of a study of the sentencing of adult male offenders in 30 magistrates' courts. The proportion and use of immediate custodial sentences varied from 5 per cent. to 23 per cent. Differences in the types of offenders dealt with only in part explained those variations.

I have given some examples of the differences as between one part of the country and another. One of the alarming features of that Home Office report was that chairmen of benches and court clerks knew little about even neighbouring court sentencing practice and indeed considered such knowledge to be irrelevant to their own decisions. I submit that it is clearly unjust that a person's liability to a custodial sentence should depend upon which side of the boundary of jurisdiction of the relevant magistrates' court he may be residing. It is obviously impossible to cure the matter in all cases but it is right that we should seek to remedy that position.

What is proposed in the amendments is the creation of a sentencing council. This is the proposal and suggestion of Dr. Ashworth, the editor of the Criminal Law Review, and a man of experience; it has since been supported by some of the major organisations in this field. This sentencing council, chaired, if he will take it on, by the Lord Chief Justice—who heaven knows is perhaps burdened sufficiently already but he is the expert and the man to advise in this matter—would produce recommendations which would be issued as practice directions. That might aim to produce a set of declared sentencing ceilings for different types and grades of offence—for example, different types of burglary and different types of theft—together with principles for use in calculating the precise sentences beneath that ceiling, including principles governing the sentencing of persistent offenders and multiple offenders, so that at least some guide could be given. That kind of guidance is now a somewhat chancy matter in its consequence when it emerges from a single decision of the Court of Appeal.

It is proposed in Amendment No. 43 that the judicial studies board should be on a statutory basis with a statutory duty to publish from time to time that kind of guidance so that the courts should have the benefit of that experience to guide them in the direction of greater consistency. It is wrong that the ultimate end of the judicial process should depend entirely on a geographical accident. In my submission that would go some way to meet the difficult tasks which courts have of making the punishment fit not only the crime but the offender.

3.30 p.m.

Lord Hutchinson of Lullington

I should like to put forward some arguments to urge the Committee not to support Amendments Nos. 40 and 41 giving this power to the Court of Appeal to increase sentences. As the noble and learned Lord has just said, these amendments involve the Attorney-General up to the hilt in the sentencing process. Therefore they raise very serious matters of principle, matters which were debated at length in our debate in January 1985 on Clause 22 of the Prosecution of Offences Bill.

Under Amendment No. 41 before the Attorney-General can trigger off this appeal to the Court of Appeal to deal with a lenient sentence he has to be satisfied that a judge has wrongly exercised a discretion as to sentence. In reality how will he set about that? It is very difficult to be satisfied that a judge has wrongly exercised his discretion in a sentence. He will receive his information from prosecuting counsel. He cannot get it from anywhere else. Counsel will have to give a written opinion. He will be the one who will initiate the procedure. He will presumably have to have criteria on which to base his judgment, criteria which must be similar across England and Wales, and which presumably will be drawn up by the Crown Prosecution Service. He will make his decision in an atmosphere of pressure—pressure from the relatives of the victim or victims, from the media, from the police and, as the Minister has just said, at a time of public emotion. How can he attack a sentence in the Court of Appeal unless he has canvassed the relevant points before the judge at the trial? He will have to stand up and rebut statements made by the defence in mitigation on information which he will presumably receive from the police.

His aim at the trial would have to be to get the judge to pass a certain minimum sentence on instructions from the CPS. He would draw the indictment accordingly. He would refuse to accept pleas to lesser offences. He could not enter into any informal discussion in the judge's chambers with the defence on the matter of sentence, which from time to time saves such hours of court time. All this is to give prosecuting counsel an entirely different role from that which he has followed traditionally hitherto—as a minister of justice, a presenter of the facts, where the court decides guilt and the judge decides sentence. If I may say so with respect to the Minister, it is not a question of prosecuting counsel doing anything improper.

Never as yet has the prosecution in the public eye been lined up with longer sentences and harsher treatment, because of course he is not going to have the power to urge shorter sentences on the Court of Appeal. Once again this proposal shows that this Government are hell-bent on bringing into our criminal process features of inferior systems from overseas. We have seen that in our recent debate on the matter of extradition.

To upset a discretionary decision of a judge in the appeal court one has to show that he acted on some wrong principle. How will the Attorney-General show this when applying, as he has to, to a single judge for leave to refer the sentence, or, if that single judge turns him down, the full Court of Appeal that he has to go to seek leave? The Attorney-General is up to his eyes in this procedure.

How will he do it? He will have to tell the judge the facts of the case, explain the mitigation, summarise the medical or psychiatric reports and summarise the evidence of the defence witnesses. He will have to tell the judge of the prevalence of the particular crime in that district, or the climate of public opinion no doubt and of previous similar cases of that kind. He will have to delve into the probation and social inquiry reports and give the judge some idea of what the trial judge presumably must have been thinking when he passed sentence as he did.

Then in a case the Attorney-General himself, as a member of the executive, will be subject to all sorts of political pressures from constituents, Members of Parliament, victims, relatives and of course the media. This indeed raises matters of principle which should exercise the minds of all Members of this Committee.

On 24th January 1985 the noble and learned Lord, Lord Scarman, spoke on the propriety of the Attorney-General having a duty to refer a sentence to the Court of Appeal. In order to remind the Committee of what he said, coming from no greater authority, I refer to col. 395 of Hansard. The noble and learned Lord said this: First, it is a constitutional monstrosity"— this suggestion that the Attorney-General should be involved in referring matters to the Court of Appeal. Under our constitution the Crown has concentrated in it all the functions of the state: executive, legislative and judicial. But it is accepted as part and parcel of our unwritten constitution that in the conduct of the public business of the state the various functions of the Crown … be kept stringently apart. The essence of our criminal law is that the Crown, as prosecutor, shall not take part in argument addressed to the Crown as sentencer in the person of the Crown's judge. It is vital, for reasons already developed …that the judicial act of sentencing should be seen to be kept out of the grasp or reach of the Crown as prosecutor and now, when this Bill becomes law, out of the grasp of the national service of prosecutors. This is a judicial function. The prosecution has a lively job to do up to the moment of conviction … The prosecution can assist with the exposition of facts, the elucidation of evidence … but it makes absolutely no submission on the Crown's judicial function, exercised in the person of the judge. At that stage the Crown as prosecutor … has to retreat". That, I would suggest, is the constitutional position.

Without I hope wearying the Committee I also refer to these words at col. 388 on 24th January 1985, when the noble and learned Lord, Lord Denning, said this: Who is to tell the Attorney-General about the case? Is it the newspapers? God forbid … The only person who can tell the Attorney-General about the case is the Crown prosecutor himself. He will have been in the court. He will have heard the witnesses … and then, after the judge has given his sentence, he will say, 'Ho, Ho! That was much too lenient. I will report this to the Attorney-General and the Attorney-General will report it to the Court of Appeal. Are the judges to be reported like this? … The judge always hears that plea. But never do we allow, nor is counsel for the Crown allowed, a plea in aggravation—because this is what it is". The noble and learned Lord went on and asked, was he going to be told that his sentence was too lenient? appal the thought! We have to remember that it is the Crown prosecutor's duty and the duty of the Bar always to be fair: never to press the case … I would say to counsel for the prosecution, 'I have it in mind to give this man one more chance. I know his record … I have seen him; I have heard what his counsel has said: I think it is right to give him one more chance. I will bind him over.' But if I were to say, 'Mr. Snooks, are you going to suggest afterwards to the Attorney-General that I was wrong?" If he is going to say I was wrong. I should tick him off … But in every case he would say, 'Of course not, my Lord. I leave it to your Lordship'". He ended up by saying at col. 389: It is quite wrong that judges of this country should be reported to the Attorney-General by the prosecution for giving too lenient sentences … It is an entirely wrong procedure and there are entirely wrong suggestions made by this clause". Also on 24th January 1985 at col. 389 the noble and learned Lord, Lord Rawlinson, speaking as an ex-Attorney-General, said that he believed that: it puts an Attorney-General in an impossible position if this proposal [of reporting matters on the shoulders of the Attorney-General] remains … from where does the Attorney-General obtain his information? Will he respond to clamour, which is the worst possible guide for anybody in dealing with the prosecution of offenders and the responsibility for the administration of the law?". Those were the views expressed so short a time ago. As we have already heard, the government White Paper in March 1986 said that these proposals: could affect the relationship between the Attorney-General, the prosecution, and the judiciary in a way which would not contribute to public confidence nor serve the interests of justice". The weight of those views is absolutely overwhelming. It is wrong in principle, wrong constitutionally and wrong traditionally.

Now how is it that all these views are suddenly to be thrown overboard? The great characteristic of our system of sentencing is that judges decide on individual cases using their own judgment, having the feel of the case to which they have listened and heard and paying attention of course to what guidelines there may be from the Court of Appeal. Sometimes they are prepared to take a risk; sometimes they are prepared to use their imagination; sometimes they even pay heed to those who have studied penal problems and they ignore media opinion. The noble and learned Lords, Lord Bridge and Lord Scarman, might take a very different view from the noble and learned Lords, Lord Ackner, Lord Templeman and Lord Brandon, of what is right. The view must be broad and views will always differ.

In the end what about the defendants? As the noble and learned Lord, Lord Elwyn-Jones, has said, after months of suspense the defendant will be put into a position of double jeopardy. To put the case on this question I need do no more than quote the highest authority in the land—and this is the last point that I wish to put before the Committee—who spoke in the debate on 24th January 1985. His words are to be found in the Official Report at col. 399. The noble and learned Lord, Lord Hailsham, referred to the speech made at the Mansion House by the noble and learned Lord the Lord Chief Justice in which he said: there are the occasions, happily not frequent, when there is an outcry about a particular sentence passed by a judge. … This difficulty will never be cured until there is introduced, as there should be, with suitable stringent safeguards, a right in the Crown to appeal a sentence manifestly too light". So said the noble and learned Lord the Lord Chief Justice in 1983 and he, as we all know, has campaigned for many years for that power.

The noble and learned Lord, Lord Hailsham, said: I was present at that dinner and I reacted to what the Lord Chief Justice said. … I was afraid that he was suggesting a retrial in the sense of double jeopardy. As a matter of fact, that is a construction which, in the heat of the moment, could legitimately be put on the words. … It is almost as important not to have double jeopardy in sentence as not to have double jeopardy in conviction. A man must not be put on trial twice, once the trial has come to a legitimate conclusion. That is almost, though perhaps not quite, as important in relation to sentence as it is to conviction. I thought perhaps that was what was being suggested at the time, and I said so in my speech in reply, which came later in the evening". I do not know whether the noble and learned Lord still believes that, just as the other noble and learned Lords still believe what they said then. As they were referring to matters of principle, presumably they still believe what was said then.

What has happened to change all that? During the Second Reading debate the noble and learned Lord, Lord Ackner, said (at col. 1309 of the Official Report on 27th April) that there was now a: sinister new blood sport of attacking Her Majesty's judges", and that, he said, was, a short cut to destabilising society". If that is how the judiciary have come to look at criticism of themselves, one does not have far to look. The power that is asked for is not a matter of principle and not a necessary part of our criminal process, but, I suggest, is regarded as just machinery to enable the judges to answer back.

That is no basis for a revolutionary change for the worse in our criminal trials system. This matter has nothing whatever to do with party politics. It is above politics of whatever complexion. I suggest that it is a deeply serious matter and I hope that Members of the Committee will vote, or abstain from voting, on the principle of that issue and make sure that these amendments go no further.

Before I sit down perhaps I may refer to two other amendments tabled in my name and that of the noble and learned Lord. Lord Elwyn-Jones. I support both these amendments, which concern the setting up of a sentencing council and the giving of statutory authority to the judicial studies board. I support them for the basic reason that at the moment in this country there is no general policy whatever on sentencing. The judges receive guidelines from time to time from the Court of Appeal. From time to time they hold sentencing seminars and they have a certain amount of literature to read on the matter. However, I suggest that judges spend most of their time responding to what they see or believe to be public opinion.

If there were a sentencing council which consisted of a majority of judges but with an input from persons outside the judiciary who have expertise of one kind or another in the matter of penology, from time to time one would be able to have principles enunciated across the board to assist the courts with some sort of sentencing policy. At the moment there is practically no assistance in the lower band of sentencing. Nearly always the Court of Appeal issues guidance on the more serious offences and in the high echelons of sentencing but there is almost nothing in the two-years-and-below sentencing policy.

The only way that one will ever achieve any policy, and therefore contribute to the lessening of the terrible overcrowding in our prisons, is to find out why we sentence—the reason for sending so many more people to prison—and why our sentences are so much higher than any other country in Europe. I suggest that those are matters which need looking into and could be looked into by a sentencing council or the judicial studies board.

3.45 p.m.

Lord Lane

First of all I should like to deal or attempt to deal with the question of over-lenient sentences. It is a truism that justice is two-edged. If it is open to a person who thinks that he has been sentenced too severely to appeal against that sentence, it seems to me that it should likewise be open to the Crown to appeal in a case in which a man has manifestly been sentenced too lightly. Other jurisdictions which operate the common law use such a system without trouble and I was sorry to hear them referred to as "inferior". I do not think that either Canada or Australia would welcome that remark.

The system works perfectly well in those "inferior" jurisdictions. They regard our system as being somewhat antediluvian and mildly amusing. I respectfully suggest that the argument that the Crown should have no part in sentencing is not sustainable. The Crown already has a large part in sentencing, and first of all in selecting the offences which are to be levelled against the defendant, because on those offences will depend the amount of punishment that can be inflicted. Secondly, the Crown has a part to play—and it is a part which it plays increasingly now—in assisting the judge to determine, amidst the mass of sentencing options that are now on the statute book, what his powers are and to draw his attention to the guidelines, if there are any referable to the particular case, which have emerged from the Court of Appeal (Criminal Division). Indeed, the more the prosecution can play a part in the sentencing process—without, it hardly needs saying, demanding X years as the minimum—the less likely it is that the need will arise for the Crown to appeal against an over-lenient sentence. The judge will have been referred to the necessary statutory enactments and referred, one hopes, to the relevant guidelines issued by the court.

I support the proposal in the terms in which it appears, save for one small matter which appears to me to be open to possible misconstruction. The wording is: that the sentencing of a person in a proceeding in the Crown Court has been unduly lenient because the judge—

1. (i) "exercised a discretion as to sentence wrongly: or
2. (ii) erred in law as to his powers of sentencing".

It seems to me that the words from "because" onwards are unnecessary and could be omitted without doing the clause any harm. That would remove any possibility of misconstruction. In brief, may I suggest that this is a power which is necessary? At the moment, to take an extreme example, there is no redress if a judge, with a rush of blood to the head, should fine a severe rapist 50 pence. There is no redress and, bluntly, that is something I suggest should be remedied.

May I turn now to the clauses proposed under Amendments Nos. 42 and 43 concerning matters which have just been raised. The system already in existence for issuing guidelines, so it seems, is sufficiently helpful, certainly according to the various consumers in the shape of judges to whom I have had the opportunity of speaking. Guidelines should be issued sparingly. You overdo guidelines and people start to cast them on one side and pay no attention to them. Guidelines are like motorways; they fill with traffic simply through being constructed. There is, unhappily, no difficulty about finding a vehicle for guidelines. There is always a case in the never-ending pipeline in the Court of Appeal Criminal Division which provides a vehicle for this type of exercise.

However, more fundamentally, I would suggest it is quite wrong that matters of sentencing should be taken out of the hands of Parliament which sets out the basis in law of sentencing and of the judges whose task it is to interpret those laws. It is quite wrong that such matters should be given to this sort of hybrid body to determine. It is neither a parliamentary body nor a judicial body. The members are apparently answerable to no-one. The fact that I am apparently to have the doubtful privilege of presiding over the body's deliberations does not seem to me a sufficient attraction. It is introducing a concept into the law which creates a very dangerous precedent for the future. It is removing a large portion of the independence of the judiciary and putting in its place something of which it is very difficult to see the end.

The judges, in any event, as I see it—or the magistrates, come to that—would be entitled to ignore the effusions of this body if they saw fit. Moreover, it should be remembered that the judicial studies board, although it has developed enormously in the recent past, was instituted for and still remains principally in existence for the training of judges and the training of magistrates. To erect the judicial studies board into a sort of semi-legislative body, as this proposal would wish, seems to me to be a wholly undesirable and retrograde step.

Lord Wigoder

I follow with hesitation, as always, the noble and learned Lord the Lord Chief Justice. If I disagree with some of his conclusions and some of his arguments I hope he will at least agree with me when I make one remark that is perhaps not self-evident as a truth. It is wrong to believe that there is such a thing as a correct sentence for each criminal offence. It does not exist. It is not only, as has been said, that every defendant differs from every other defendant. He differs in his mental or physical capacity, in his criminal record, in the temptations to which he was exposed or in his upbringing—innumerable matters of that sort.

Defendants differ and victims differ enormously one from another. There is no comparison, if one is passing sentence in a rape case, between an innocent girl in her teens and a semi-prostitute, who at the very last minute has said "No". There is no comparison, if one is passing sentence in particular cases, between the circumstances of an individual case, the prevalence of the offence at that time and a myriad of other matters. All those factors make every single case different from every other case. They make the task of the judge difficult and the task of the Court of Appeal even more difficult if a case goes to them.

Indeed, if I can pursue that matter a little further, the trial judge has at least one advantage that the Court of Appeal is never going to have. He has tried the case; he has seen everybody involved; he has heard what was said. And, apart from the actual evidence as reported and written down in the transcript, the trial judge has had the opportunity of forming an impression of the defendant and of the witnesses. The trial judge has an impression as to how far a particular defendant may or may not be speaking the truth when he says that he regrets a particular matter. The trial judge will have an impression as to how far one defendant may have been under the influence of another defendant or been carried away by a particular witness on a certain matter.

All these are ingredients which only the trial judge is in a position to assess. I suggest therefore that it makes it far more likely that the trial judge will get the sentence right rather than that the Court of Appeal will get the sentence right, even though that court may consist of three judges rather than one. The ability to be there and to have heard the case is far more important than the possibility of three judges examining the documents and coming to the right conclusion.

Those matters of sentencing essentially have to be left to the judge's discretion. Indeed, I do not know what has happened to the judge's discretion during the last seven days. Only last week in your Lordships' Chamber we were debating a series of proposals about the admissibility of evidence. Some of us had doubts as to whether certain matters such as documentary evidence could safely be admitted. What were we told by the Government and by the noble and learned Lord, Lord Roskill? Their response was, "You can safely leave those matters to the judge's discretion". If such a matter could safely be left to the judge's discretion last week, I find it difficult to see why matters of sentencing cannot equally be left to the judge's discretion this week, particularly where, as I say, the judge is going to have a far more intimate knowledge of the details of the case.

Of course, what has led the Government to take this step, they pretend, is what they call public opinion. It is not public opinion at all that is outraged by lenient sentences; it is hysterical headlines in the tabloid press. One has only to test that, and I think prove it in this simple way. We can all think of occasions over the last, say, 12 months when there have been headlines in the tabloid press complaining bitterly about a lenient sentence. I ask this question rhetorically, but I shall sit down if anyone wants to give an answer: can any noble Lord remember a single occasion when the tabloid press has complained with equal hysteria about an excessive sentence? Yet the fact is that excessive sentences take place because the noble and learned Lord the Lord Chief Justice spends a certain amount of time in the Court of Appeal dealing with appeals against excessive sentences. Why is the tabloid press not interested in excessive sentences?

Lord Hailsham of Saint Marylebone

The answer to the noble Lord's question is: yes, I can certainly think of a great number of cases where the press, the tabloid press included, has complained of sentences being excessive.

4 p.m.

Lord Wigoder

I should be grateful if perhaps on another occasion the noble and learned Lord would give me the details. Perhaps I may give just one or two illustrations of the points I am making. Not very long ago a young man at a football match punched somebody and I think also committed an offence with a knife. For the offence with the knife he was very properly sentenced to 10 years' imprisonment; for the offence of punching somebody he was sentenced to life imprisonment. The popular press said, "Judge slams football hooliganism". It was only the legal profession that realised that this case had gone absolutely berserk, and in due course the noble and learned Lord the Lord Chief Justice was able to put that matter right on appeal.

I should like to give another example of the popular reaction to a sentence and how wrong it can be. It was only a few weeks ago that a gentleman of some eminence was sent to prison because he had made multiple applications in a share issue. That sentence, which caused a certain amount of concern, again among the legal profession, was rectified before the noble and learned Lord the Lord Chief Justice when it came to the Court of Appeal. But what happened when the original prison sentence was passed? I say with regret that it was reported with gloating by a speaker at the Labour Party conference and huge cheers arose from the hall when the prison sentence was announced. It was quite wrong. The sentence was wrong and we know now that it was wrong, but I venture to think it shows that the public or the press are not very good judges of the accuracy of a sentence.

Baroness Phillips

I apologise for interrupting the noble Lord, but if he were to spend a few hours going round some of the women's organisations, he would hear what they have to say about it; that is not based on the popular press, but is based on cases which many of them can actually speak of from personal experience. I found the noble Lord's statement that rape is different according to the victim very dangerous. Rape is rape against whoever it is committed.

Lord Wigoder

The noble Baroness has anticipated with some accuracy what I was about to say. I was going to suggest eventually, at the end of my observations, that when we come to deal with sentence and with newspaper hysteria one of the problems is in fact the existence of those very organisations to which the noble Baroness is referring, which seem to think that every case of rape has to be dealt with by 10, 15 or 20 years' imprisonment. They are quite incapable of distinguishing which cases should receive a long, medium or short sentence, or perhaps even no prison sentence at all.

I think it is accepted that the number of cases that we are talking about is very few indeed. The Minister stated that perhaps in future, if this proposal were carried, some 12 cases a year might be referred to the Court of Appeal. Let us suppose that in half of those cases the appeal is successful. In these circumstances we are all getting worked up, as we are in this particular debate, about something that might affect six people a year. I think that we ought to keep it in perspective. We ought to bear in mind that if we are dealing with, say, half a dozen people a year, then we would be embarking down a really rather perilous path. I accept of course what the noble and learned Lord the Lord Chief Justice said about the fact that at the moment prosecuting counsel play a role in the criminal process which includes a part in the sentencing process. However, under the proposal which the Government are now putting forward it will be a quite different part, a wholly unprecedented part, and I think a very undesirable part.

Finally, the result of the Government's proposal will be to create a procedure which inevitably will be lengthy. It was good of the Government to listen to the arguments at an earlier stage and to say that the Attorney-General must announce his decision within 28 days of the trial. That is not of very much help unless the case is then going to be tried with speed. We all know that, because of the pressures of work in the Court of Appeal (Criminal Division), the probabilities are very much against that. Indeed, I would add that not only are the probabilities against it, but the practicalities are against it, because in any case of any complexity the Attorney-General for a start and the Court of Appeal for a certainty will want a transcript of the whole of the proceedings at the trial court if they are to give any sort of reasoned judgment on sentence. Those transcripts are not merely expensive—they cost hundreds of thousands of pounds in a long case—but they take months and months to supply.

So let us not pretend that under the Government's proposals people will not be kept in very real suspense over a very long period. Whether, as the noble and learned Lord, Lord Hailsham, said on a previous occasion, this would amount to double jeopardy, I am not absolutely sure on a strict analysis of what double jeopardy means; but I think that it would be very unfair to a defendant that after a substantial period of time, perhaps at liberty, he should be taken back into court and, because of a difference of opinion between three judges and one judge, he should then find himself deprived of his liberty.

I cannot help thinking that to some extent what we are dealing with here is what we are dealing with in other parts of this Bill: a sort of instant legislation. It is an immediate, over-hasty reaction to a problem which, when it is looked at calmly and coolly, is nothing like the pressing problem that it appears to be. I very much doubt whether the Government's proposal here is really anything more than a sop to the popular press and a sop to certain organisations that delight in saying that particular sentences are inadequate.

Lord Denning

I have taken part in most of the debates on this subject in the past. May I say today that I have been much inflenced by the arguments put forward by my noble and learned friend Lord Elwyn-Jones and indeed by the noble Lords, Lord Hutchinson of Lullington and Lord Wigoder. They were the sentiments which I expressed before. I dislike the idea of the Crown Prosecution Service taking part in this sentencing process and saying how long it should be; and, if it is thought to be too short, reporting it to the Attorney-General. I dislike that process altogether and it is for those reasons that in the past I have been against any appeal on the ground that sentences are too lenient. However, I have to confess that, not the first time, I have changed my mind. As an example I shall cite, this instance from the past: I remember when I was a judge at the Old Bailey trying a case where two girl cyclists, riding quite innocently and calmly across the road, were killed. Their lives were shattered and their relatives distressed beyond measure because the driver, who was of good character and driving a huge car, had overtaken when he ought not to have done and had mown down those two girls. I was influenced by his good character, I was influenced by his appearance in the dock and I thought on the whole that I would be merciful. I sentenced him to nine months.

Of course the judge has to decide then and there without any time for reflection, without being able to find the impact on the victims or their relatives; and the evening afterwards I thought "Oh, dear. I have made a mistake. I ought to have given that man 18 months or two years". That shows how judges, with the best intentions in the world, can go wrong by being too lenient, and there is no remedy.

I have recently had letters from relatives and parents of youngsters who have been killed in almost similar circumstances, and perhaps there has not even been a sentence of imprisonment against the drunken or reckless driver. It is those experiences which lead me to suggest that I was wrong earlier; that there ought to be, in very rare but occasional cases, an appeal against a sentence which is unduly lenient. That is one aspect.

The other aspect—I must say it—is the influence of the media today. Members of the Committee remember the Ealing Vicarage case. You will all remember how the press and the other media at once seized on the sentence as unduly lenient. It was altogether wrong, they said. But when the media criticise judges and sentences in that way it affects the confidence of people in our system of justice and the judges. It shakes the confidence of the ordinary public in our system of justice if the media can make these allegations against the judges and they go uncontradicted and unremedied. It is the influence of the media which needs to be corrected in order to re-establish the confidence of the public in our administration of justice.

Of course the media are entitled to do this. Lord Atkin once said that justice is not a cloistered virtue. It must be subject to the outspoken comments of ordinary men. Yes, it is subject to them. If those comments are justified, then there is a case for the matter to be brought before the Court of Appeal to see whether a sentence was unduly lenient. There is the safeguard in this provision that it is done with leave only of the Court of Appeal itself. Before there is any appeal, a judge looks at it and it is only by his leave that it can be taken up. So I have now changed my mind, and, on the whole, I would support this clause as now put forward by Her Majesty's Government.

4.15 p.m.

Lord Hailsham of Saint Marylebone

I hope to be fairly short because I have taken part in most of the previous debates. The trouble is that the subject is a rather more intricate one than lends itself to a very short speech, but I shall do my best. I have not changed my mind substantially, unlike my noble and learned friend who has just spoken. The point is that consistency of sentencing policy is the name of the game. I utterly dispute what fell from the noble Lord, Lord Wigoder, that this is simply a reaction on the part of Her Majesty's Ministers to tabloid press hostility to sentences on the ground that they are too lenient.

As the noble Lord spoke, two cases came to my mind—I shall not expatiate on them—where two members of the judiciary were hounded to their death by the popular press on the grounds of excessive severity and they were wrong both times. I could give him particulars of both cases. But the truth is that there are principles of sentencing. It is of course true that every case differs to a greater or lesser extent from another. I accept that from the noble Lord, Lord Wigoder. But in fact there are principles of sentencing which ought to be laid down. I agree with my noble and learned friend the Lord Chief Justice that this is essentially a judicial function, and as a judicial function it ought to be subject to review by the ordinary appellate process in one way or another.

I ask the Committee to take, for instance, the Ealing rape case, which has been mentioned more than once. There were two quite separate issues there which raised general principles. They were both, as it happens dealt with by my noble and learned friend the Lord Chief Justice, because the matter, by sheer chance, happened to come before the Court of Appeal (Criminal Division) on appeal by one of the other defendants. Otherwise it could not have been reviewed at all without a clause of this kind.

The two separate issues were whether the totality of the sentences was adequate compared with other cases, but also it was about the proper use by a judge at first instance of consecutive and concurrent sentences, even where the totality of the sentences was the same. Both of those difficulties were discussed authoritatively by the Court of Appeal (Criminal Division) and I hope that the matter has to some extent, thereby been disposed of. But they came before the Court of Appeal (Criminal Division) by a side door, simply because one of the other defendants had complained that his sentence was too long.

Going on from there, one has to say this. Rape is not the only type of case which has given rise to criticism. My noble and learned friend who has just spoken speaks of the motoring cases which result in death and serious injuries. While I was Lord Chancellor I had a whole sequence of complaints from the public with regard to these. Or let us take the much more recent and far more difficult cases which came before the Old Bailey about commercial frauds in the City of London. One was the case of the young man who put in multiple applications for a public issue of shares. The other two were cases in which insider dealing was in question.

It is important that these matters should be dealt with in a consistent way. The two insider dealing cases were dealt with by suspended sentences. The case of the young man who was able to appeal against sentence was dealt with originally by an immediate custodial sentence, and it was put right because there was an appeal to the Court of Appeal, who said that he had got by by the skin of his teeth. In his absence, I think I am quoting directly from my noble and learned friend the Lord Chief Justice.

There are general principles of sentencing and one cannot leave it to the haphazard working of a one-sided arrangement to see that the Court of Appeal has proper seisin of discussions of that kind. Hitherto, apart from the chance that an appellant appeals against a sentence as excessive, the matter has been dealt with by one of two devices. One is by private admonition, shall I call it, by somebody of great authority—let us say that it might be my noble and learned friend or it might be another high judicial figure—that a judge is consistently too lenient. That is not a satisfactory way of dealing with matters of principle. The other way is by what are called guidelines. My noble and learned friend the Lord Chief Justice has with great clarity on occasion issued guidelines for cases of rape and other crimes of violence which have been of the greatest possible advantage. But guidelines are not enough. My noble and learned friend himself explained one of the difficulties about guidelines; they tend to attract traffic more than the circumstances demand.

However, there is another difficulty. It is that guidelines in themselves are hound to be generalisations. What is required in order to build up a body of case law or jurisprudence is that decisions are reported in the legal press, not the tabloid press, based upon a review of cases of the same general type. These can only arise out of a matrix of actual fact in a concrete case. It is precisely the individuality of the concrete case which, to my mind, renders a clause of this kind an urgent necessity. I am glad to know that my noble and learned friend the Lord Chief Justice seems to be of the same mind as myself in this matter.

It is said that the role of prosecuting counsel (or that of the Attorney-General) is necessarily compromised by the proposals in the clause. I do not agree. The Attorney-General already has a power of reference against an acquittal which is exercised in about the same number of cases, perhaps fewer if anything, than the noble Lord, Lord Wigoder, mentioned. It has proved an unqualified benefit to our judicial system that what could be called a review of an acquittal on a point of law should be discussed in a higher court. That was not possible before. I attacked a criticism of another amendment on the basis that it was too revolutionary in a previous debate on the Bill. I wish that the Front Bench opposite would be a little less conservative in their approach to traditional attitudes.

To begin with, let us deal with the role of the Attorney-General which is to be controlled by leave of the Court of Appeal. His only role is to see that general principles are involved and that they should he discussed by the judiciary at a higher level than they were at first instance. I do not believe that to be a difficult role to play. It is certainly no more difficult than the Attorney-General having to apply for a review of acquittal where a point of law arises on an acquittal by direction.

I agree absolutely with what has been said on all sides that prosecuting counsel is not there to secure severity; but I agree with what fell from my noble and learned friend the Lord Chief Justice—not in the course of this debate but on a previous occasion—that the court is entitled to a little more assistance from prosecuting counsel than has been customary in the past. Certainly, when I was at the bar which, alas, was 17 years or more ago, it was common when one conducted a prosecution in a company case to remind the judge of his powers of disqualifying a person as director in certain types of fraud. I have ascertained that that goes on today.

Now that sentencing has become so complex a matter, it is right for prosecuting counsel to be able to point out to a circuit judge or to a High Court judge sitting in the first instance the various options open to him. It is also a part of his duty to point out relevant decisions of the Court of Appeal. These now take the form only of guidelines or successful appeals. But if the clause were passed they would form a useful piece of case law. It is perfectly proper for counsel for the prosecution, without seeking to guide the court to a course of greater severity, at least to point out the relevant general principles of sentencing which are applicable to a particular case and to point the judge to any relevant decisions which have been reported in the professional press.

I do not think I was a keen prosecutor of the type referred to by the noble and learned Lord, Lord Elwyn-Jones, but I did a certain amount of prosecuting. Nevertheless, I cannot see myself being any more embarrassed than one is anyway when prosecuting in drawing attention to relevant facts, sometimes by way of mitigation and sometimes by way of aggravation. One's duty is to see that the court is fully informed about the relevant considerations. I cannot see that that duty would be in any way rendered more difficult on appeal by way of review under the clause than it should be in modern circumstances in the way of conviction. One wishes to see consistency of sentencing policy. That can only be achieved by a proper selection of cases argued in the context of a matrix of actual fact and before the Court of Appeal (Criminal Division).

Although there is much else that I should like to say, I shall not weary the Committee by doing so. However, there are two points I should like to make. First, the Court of Appeal is the judicial body entrusted with this particular function. I should not be doing justice to the debate if I did not say that I agreed wholeheartedly with my noble and learned friend the Lord Chief Justice in his condemnation of the two alternative sets of proposals contained in the two following amendments. They take away from the judges a judicial function. They create a new hybrid body, part of which is to he nominated by the executive which is wholly contrary to the tradition of this country. The alternative suggestion, if it be an alternative and not a cumulative one, is contained in the second of the two amendments where an educative training body is given a judicial function which is wholly contrary to its nature.

As the late Lord Diplock said in a fairly recent appeal, it cannot be too often stated that the constitution of this country is still based on the separation of powers. It may be that as between the executive and the legislature we have blurred the distinction; but the judiciary is and should remain wholly independent. I regard the two proposals in these amendments as wholly unacceptable for the reasons given by the noble and learned Lord the Lord Chief Justice.

I believe that I was given a challenge by the noble Lord, Lord Hutchinson of Lullington. I made it quite clear that I should have preferred an earlier version of this particular proposal. I found myself somewhat unusually supported by the noble Lord, Lord Gifford, who took part in the debate. It is contrary to the esprit des lois, or whatever one chooses to call it, to make a man run in jeopardy twice, whether it is on conviction or sentence. I could live with the present form of the clause but I would have preferred it in its earlier form where the man did not have to do so. I regard the name of the game as consistency of sentencing and the proper selection of cases and not one of making the particular man suffer two trials in which the results may be different. It does not matter what happens to the individual offender once he has been tried at first instance; but what does matter is that we should develop a body of jurisprudence in which consistency of sentencing and the general principles of sentencing are decided authoritatively and by the proper body, namely the Court of Appeal (Criminal Division).

4.30 p.m.

Lord Irvine of Lairg

I am disappointed to hear that the noble and learned Lord, Lord Denning, has changed his mind on this subject. Those of us who have had the great privilege of appearing many times before him in the courts can confirm that this is not unprecedented. He is a legal genius. I remind the Committee that the first thoughts of a genius on any subject must necessarily be correct.

I accept that there are very occasionally excessively lenient sentences. I do not accept that there is any general problem of excessively lenient sentences. I was encouraged to hear the noble Earl, Lord Caithness, say the same. I am not aware of any evidence that would support the assertion, if anyone were to make it, that there is such a general problem.

Individual examples can of course be cited. The Ealing Vicarage rape case is often mentioned. For myself I do not regard it as a true example of an excessively lenient sentence—on the light side perhaps, and certainly not well expressed, but a sentence of 10 years' imprisonment in all was not in my view excessively lenient. Therefore I accept that very occasionally there are excessively lenient sentences but no general problem, because our judges generally do not sentence too leniently. I accept what came from the noble and learned Lord, Lord Lane, that in principle justice is offended by a sentence that is excessively lenient. It would obviously be better if there were no excessively lenient sentences. They happen very occasionally because judges are human and to err is human.

My assertion, however, is that any remedy for the rare excessively lenient sentence, including this one, will cause harm immeasurably greater than the harm that the remedy seeks to address. I say this for two basic reasons as well as the reasons given by my noble and learned friend Lord Elwyn-Jones and my noble friend Lord Hutchinson of Lullington. First, the very existence of the remedy will, I predict, lead to judges imposing higher sentences generally and therefore to a further increase in the prison population. Secondly, the remedy will institutionalise trial by newspaper. Realism, I suggest, requires us to appreciate that no judge will want to be told by the Court of Appeal that his sentence has been excessively lenient. A substantial part of the work of the Crown Court is carried out by part-time judges, assistant recorders and recorders, who sit for four weeks a year. That apart, they carry on their practices usually as barristers in the courts. The ambition of the great majority of them is to become in due course full-time judges.

Last year the then Lord Chancellor, the noble and learned Lord, Lord Hailsham of Saint Marylebone, published a most helpful booklet called Judicial Appointments, the Lord Chancellor's Policies and Procedures. On page 3 there is this passage: Another guiding principle is that, as far as possible, candidates should be appointed to permanent judicial posts only when they have successfully prepared and proved themselves by experience in an associated part-time capacity. This has already fully applied to the Circuit Bench and to most of the lower judicial and tribunal appointments. The Lord Chancellor's intention is that it should be progressively applied to all other judicial appointments, including the High Court". As I say, the ambition of the great majority of assistant recorders and recorders is in due course to become full-time judges. Many of them I predict will believe, at any rate subconsciously, that that worthy ambition will be imperilled if the Court of Appeal were to declare that he or she has passed an excessively lenient sentence.

They are told at their judicial seminars that they should be unselfconscious when sentencing, put the Court of Appeal out of their minds and give the sentence which they think is appropriate on all the individual facts of the particular case before them. If this remedy is introduced into the law, every judge in a criminal case will become self-conscious and be concerned that he will be declared by the Court of Appeal to have been an excessively lenient sentencer. The result will inevitably be a general tendency to give higher sentences to avoid that risk. If I am right and this remedy leads generally to higher sentences, it will have worked a much greater evil than the evil of the occasional lenient sentence.

As a country we send too many people to prison for too long. We have about 49,000 prisoners locked up in accommodation that was not intended to contain more than 42,000. More than one-third of them are two or three to a cell, built in Victorian England for one prisoner only. Sanitation is a disgrace. The Prison Department's declared objective of helping prisoners to lead a "good and useful life" is a pious hypocrisy. Conditions in prison lead to acute tensions between prisoners and staff. We put more people in prison in absolute numbers and relative to population than any other major Western European country.

The noble and learned Lord, Lord Lane, as Lord Chief Justice, in an important guideline case in 1980 declared: This case opens up wider horizons becasue it is no secret that our prisons at the moment are dangerously overcrowded. So much so that sentencing courts must be particularly careful to examine each case to ensure, if an immediate custodial sentence is necessary, that the sentence is as short as possible, consistent only with the duty to protect the interests of the public and to punish and deter the criminal. What the court can and should do is to ask itself whether there is any compelling reason why a short sentence should not be passed". I wish that that wise advice was heeded more in practice by our sentencing judges. Twenty per cent. of adult males convicted of indictable offences are imprisoned today. Ten years ago the figure was 15 per cent. I oppose the amendment because I predict that its effect will be an overly self-conscious judiciary, sentencing high; and what we need in this country are shorter sentences, not longer.

My second point is that this remedy will be a standing invitation to the tabloids to whip up public feeling about some sentence that they think, usually on a mistaken or incomplete appreciation of the facts, is excessively lenient so as to put the Attorney-General under pressure to refer to the Court of Appeal. If he is a Conservative Attorney-General, then he had better oblige pretty often or he for one will not have a good Tory Party Conference. This remedy is a standing invitation to the tabloids to mount campaigns in any cases that take their fancy. There is no brigade that is easier to pander to than the law and order brigade. This remedy will be a godsend to the tabloids. Trial by newspaper is always reprehensible. The amendment encourages it. For these reasons, I oppose it.

Lord Elton

Does the noble Lord recognise that the Lord Chief Justice, whom he has quoted as being so adamantly in favour of the shortest possible sentence, would in fact be involved in the process of setting what should be the appropriate sentence in the cases to which he is referring? Does he not regard that as a reassurance?

Lord Irvine of Lairg

I think that the answer is plain. The effect of the remedy will lead to generally higher sentences, and they will not get up to the Court of Appeal. I object to generally higher sentences.

Lord Ackner

I wish to start with what I believe is a relatively simple proposition. A system of justice that makes no provision for correcting a manifest gross error is clearly a deficient system.

At the risk of offending my noble friend Lord Hutchinson of Lullington, may I be permitted to quote from what the current Chief Justice of Australia said when he was Mr. Justice Mason some three years ago: Just as consistency in punishment—a reflection of the notion of equal justice—is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of the public confidence in the integrity of the administration of justice. I fully accept what has been said, that the issue of excessively lenient sentences has been grossly exaggerated by, as my noble friend Lord Wigoder said, the hysteria in the press and elsewhere. The sad fact remains that there are hysterical elements in the press and they have every appearance of increasing. As the noble and learned Lord, Lord Hailsham, pointed out, one of the reasons for the hysterical attacks on judges for undue leniency is precisely that there is no remedy open to correct such sentences. The suggestion that this will result in an invitation to the tabloids overlooks that very important factor.

The description of the noble Lord, Lord Mishcon, when we had the Second Reading in July that the problem was almost non-existent was a failure to face reality. Each and every attack becomes more strident and their cumulative effect is, and is calculated in some respects, to undermine public confidence in the judicial system. I again adopt what my noble and learned friend Lord Hailsham said. There must be an open ventilation of the issues, calmly and objectively expressed, in front of a properly constituted tribunal, which is the Court of Appeal (Criminal Division). That is what will disincline the press to adopt the invitation that it accepts so willingly now.

Let me next deal with the suggestion made by a number of my noble and learned friends that it is a very, very difficult matter to determine whether a judge has imposed an excessively lenient sentence. As one who has been reversed as well as upheld but never suffered the ultimate indignity as yet of being explained, let me tell the House that there is no difficulty at all. There were 9,000 sentences of imprisonment in 1985. There were 1,100 successful appeals, 1 per cent. or a little more, against those sentences being too high. What is the problem of determining whether a sentence is grossly below what it should have been? The problem raises no greater difficulty than dealing with the excessively serious sentences and can be determined, as it is now, by looking in the majority of cases at a short transcript. The suggestion that only the trial judge has the feel that enables him to impose the correct sentence is belied by 1,100 successful appeals to which I have referred.

I next deal with the much used, much abused and emotionally-toned phrase of double jeopardy. Double jeopardy in its accepted sense means that a person should not be at risk of being punished twice for the same offence. It is common sense that if a person is punished once and once only properly that is no more double jeopardy than a person whose conviction has been quashed because he has discovered new evidence being put on trial yet again.

Let me next deal with the suggestion that this proposal by the Government introduces: a revolutionary change in the conventional role of prosecuting counsel". I give the House an example. A case came recently to this House on a technical matter in relation to the indictment. These were the basic facts of the case. The prosecution decided to indict the accused for murder. He could have indicted the accused for manslaughter. It was the prosecution who chose the lesser offence. It was for the prosecution to decide whether at trial it would accept, subject to the approval of the judge, the lesser offence. It did not so decide.

When the person was in fact convicted of manslaughter because of the amount of alcohol he had consumed before he killed his girlfriend, it was the prosecutor who called the police not only to give the antecedents of that accused—a common enough matter—but he also invited the police officer to tell the court the details of the last three offences in order to underline that the accused was a menace to women. Despite the traditional role of prosecuting counsel, and without the slightest criticism from anybody, he then called a doctor in order to give evidence to the court that the convicted man was a danger to the public and that therefore the court should give consideration to an indeterminate sentence, namely, life imprisonment, rather than a determinate sentence, when the convicted man might be out again and a danger to the public within a limited period. The court adopted the view of the doctor and gave a life sentence. None of this was the subject matter of any appeal to this House.

It is myopic to a degree to forecast disaster when it is so easy to make an inquiry of competent jurisdictions, for example, Canada, Australia and New Zealand, as to what is the consequence of their bringing in—and Canada did it over 60 years ago—exactly what we are considering now. These in terrorem arguments that the skies will fall, without providing the Committee with the slightest indication of what happens in practice, are deeply suspect.

I have taken the opportunity this year, by reason of being the Chairman of the Law Advisory Committee of the British Council, to attend a number of conferences abroad. I have asked the Chief Justice of Australia, the Chief Justice of British Columbia and two senior judges of the Court of Appeal of New Zealand who have sat with us recently in the Privy Council about this. There is no problem at all. Prosecuting counsel behave exactly as we would wish them to do. The only way in which they might exceed the present situation is to say to the learned judge, "If your Lordship has not got the case to hand there has been a recent decision of the Court of Appeal (Criminal Division) laying down certain guidelines".

I was interested to note that in the debate on Second Reading both the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Mishcon, said, "That is fine; that is all right. That is all that may be expected in addition". The bogy of prosecuting counsel banging the desk and demanding 20 or 30 years' imprisonment is totally unreal.

The next matter is the humanity factor, the argument that is intended to melt the soul of this Committee. I cannot understand this deep sympathy for someone who ex hypothesi has committed a serious offence—because that is what we are considering—and has been grossly under-sentenced. It is an affront to the public, it is an affront to the victim. It is perhaps a relief to see that nowadays we are beginning to spend a little time considering the victim.

We do not have these scruples for magistrates' courts. A person convicted in a magistrates' court can be the subject of an appeal by case stated on a point of law and the acquittal can be overturned. We do not have these scruples in the House of Lords. If the Court of Appeal (Criminal Division) quashes a conviction and there is leave to appeal, the House of Lords can and does at times reverse that decision and the man is back in prison, assuming he has been on bail.

I now deal with the reference to excessive sentences. Of course my noble and learned friend Lord Hailsham is perfectly right. There are cases where the media take up the cudgels, alleging excessive sentences. I give one example. About 12 years ago a boy of 16—and I emphasise boy, because he was too young to be sent to prison—was found guilty of attempted murder. He and two other men had knocked down and robbed an elderly man in an underpass under a road in one of the main cities. Not content with that, he went back and tried to finish him off with a brick. Hence the charge and conviction of attempted murder. The boy was sentenced to 20 years' detention under Section 33 of the Children and Young Persons Act. That is the limit a Home Secretary can keep him in whatever establishment he thinks fit and he can let him out at any time on the recommendation of the Parole Board.

There was an outcry, questions were asked in the House, the judge's resignation was demanded, but there was an appeal so the steam went out of the case and in due course, so little were they moved by this pressure, the judges upheld the sentence. Needless to say, the Court of Appeal's praise for the judge on a sensible sentence barely received a few lines of newsprint.

Finally, the noble and learned Lord, Lord Scarman, has been quoted. All I can advise is that his current views be sought, because if they are the same as those he expressed to me at lunch on Friday, that part of the speech of the noble Lord, Lord Hutchinson, no longer holds water.

Lord Campbell of Alloway

I have supported the principle of this series of government amendments for a long time. The first time was in this Chamber on the Prosecution of Offences Bill, where we divided against Clause 22 and defeated the Government. In Committee, first time around I tabled Clause 62 and second time around I tabled Amendment No. 45. That appeared in the first Marshalled List but has been withdrawn in favour of the Government's amendments.

The second time, this principle was supported by the noble and learned Lords, Lord Denning, Lord Roskill and Lord Ackner. I then expressed the hope that the Government would withdraw Clause 38 and introduce their own amendment to give full effect to the principles for which I sought to contend. This has been done and I thank the Government for having adopted the principle and I give my unqualified support for the draftsmanship of this series of amendments.

Why should these reforms proposed by the Government be requisite? It is because consistency in sentencing is the lodestar of the administration of criminal justice, without which the confidence of the public in the system can never be maintained.

Secondly, it is because all judges—thank heavens—are human and as such prone to error, where error engenders serious public concern, even resort to self-help, possibly vengeance, and brings the law into public disrepute. Here, as my noble and learned friend Lord Hailsham knows, I, with respect as always, part company with him. I believe that it matters very much what happens to the offender in this area where public confidence in the due administration of justice is at stake.

The third reason why these reforms proposed by Her Majesty's Government are requisite is simply this. There has to be a corrective and the only corrective we can have, while maintaining the independence of the judiciary, must lie within the judicial system itself. I shall not weary the Committee for long because there have been long speeches, but those basically are the reasons I urge the Committee to support these amendments.

What are the objections? It is said that prosecution is brought into the sentencing arena. It has been pointed out by more than one noble and learned Lord that this simply is not so. If there were any form of constitutional problem about the position of Mr. Attorney—I can see none but I understand the objection—instead of the Attorney-General it could be the Director of Public Prosecutions, as was proposed in my amendment which has been withdrawn in favour of the Government's amendments. However, having listened to what has been said in the Committee, I am satisfied that there is not on analysis any form of constitutional problem here. It is idle to suggest, as was suggested today, that it is wrong and undesirable that there should be pressures on the Attorney-General—political pressures, constituency pressures and media pressures. Any Attorney-General worth his salt could stand up to that.

Another objection appears to be that of double jeopardy, but, as has been explained, that is a total misconception. However, is it not more important that we should maintain public respect for the due administration for the law than that some offender who has committed a serious offence should have the benefit of being over-leniently sentenced? Public confidence in the administration of the law is of far greater importance.

The third objection put forward is that this would or could increase sentences because judges will wish to avoid being subject to review. Anything more wet is difficult to understand. Recorders, and I am one of them, sit as part-time judges. We do not mind, and nor do the regular judges, if we are put right. We do the best we can but we get it wrong at times and the Court of Appeal puts us right if we are too heavy with our sentences. Now it can put us right if we are over-lenient. I cannot understand how it can be said that that could be a reasonable objection.

Finally, it is right that the Committee should appreciate that the effect of this series of Government amendments is not to restore the power of the Court of Appeal (Criminal Division) to what it was, so that it could increase the sentence on appeal against sentence. That is not the effect. The effect is to afford a power of review, subject to an intricate and I would suggest adequate safety-catch mechanism which inhibits any increases in sentences unless the offence is triable on indictment or is a serious offence, as specified by order, or unless it appears to the Attorney-General that it was unduly lenient, as a result of the erroneous exercise of judicial discretion. With respect to the noble and learned Lord the Lord Chief Justice, I should have wished to have kept error of statute or law as a sentencing power because it might be that it was manifestly apparent, from the form of sentence, that the judge thought, as a matter of law, that he was limited in some way. Keeping it can do no harm.

The third safety-catch mechanism is that notice of application has to be given within 28 days, although I do not think that was appreciated, and leave has to be granted. There is then the substantive hearing. It is only then, if the court is satisfied that the sentence was unduly lenient and should be increased, that it is increased.

There is no problem, as the noble and learned Lord, Lord Ackner has just said. It is no more difficult for the Court of Appeal (Criminal Division) to see whether a sentence is far too harsh or whether it is far too lenient. Exactly the same factors have to be taken into account to decide the one or the other. It is the same judicial approach. It is done every day of the week in one way. It can be done half a dozen, a dozen or two dozen times a year the other way. If that restores public confidence in the due administration of justice, that is worth a lot.

For those reasons, I suggest that the Committee should support these amendments. The principle is sound; it is right. It has the reasoned support of the noble and learned Lords on the Cross Benches and, if consistency has any merit in this matter, at least I have always supported it.

5 p.m.

Lord Grimond

I rise with some diffidence on the grounds that I am a layman. It is true that I was once called to the Bar, but not even my worst enemies would say that I am learned in the law. I feel that after this galaxy of legal talent it might be a good thing to turn back to what I believe is the fundamental principle. No doubt there is a strong argument for the amendment. No doubt there is an argument for making the law logical. But in point of fact it is a wholly illogical process. It depends upon goodwill and public understanding. The public understanding is that if a man is put on trial, is convicted and sentenced, he has a right to believe that that is an end of the matter. It may be that he will not be in double jeopardy if the amendment is passed, but he will be in suspended jeopardy. That is repulsive to attitudes held in this country. I do not believe that in passing the amendment we shall increase respect for the law. Far from it. It will be known that the only reason the amendment is before us is because of' the popular press. It was never thought of until the popular press raised the matter. Most people, although they may read the popular press with pleasure, do not want their legal system to be dictated by it.

Further, I do not think that the amendment will serve any useful purpose. The type of case which will be referred to the Court of Appeal to increase sentence will be the type of case that appeals to public emotion. It will not be the City slicker who has swindled people out of millions of pounds. Furthermore, it will not deter crime. No criminal will be deterred by the proposal. It will confuse the whole basis of British law.

I noticed that the noble and learned Lord, Lord Hailsham, admitted that it was repulsive to him that there should be even the scintilla of erosion of the principle that once one had been tried for an offence that was that.

If we pass the amendment, we shall be truckling to the public press. The Committee will be eroding the whole principle against suspended if not double jeopardy, and it will do no good for the prevention of crime.

Lord Paget of Northampton

On one occasion a speaker who was following Mr. Disraeli said that all he had to say to this place was, "Ditto to Mr. Disraeli". I say "Ditto" to the noble Lord, Lord Grimond. The idea that a man should be put in peril twice—not, should not be punished twice—that he should not go through the trauma of a trial with its result, to have that result taken away from him because the other side wants another run, is not something which the British people will accept. They have never accepted it. It is deep within their feelings. It is a feeling that I share.

Lord Windlesham

I feel the sense of the Committee is that we are reaching the end of this long and fine debate on a matter of fundamental principle. I support the new clause. It is the third version that has been put before us by the Government. I think it is the strongest and I believe that it will lead to more consistency in sentencing, which is in the interests of justice.

I wish to make two points only. First, I wish to support the request made by the noble and learned Lord the Lord Chief Justice that between now and Report the Minister should look carefully at the wording of subsection (1)(a) and consider whether the words of limitation are required. I do not elaborate further at this stage.

My second observation is to regret that we are taking Amendments No. 42 and 43 as makeweights. There are real issues to discuss relating to the sentencing council proposal and the judicial studies board. Both are worth full debate and careful thought, and it is a pity they have been thrown in as part of the opposition to the new clause.

Baroness Macleod of Borve

In the 16 years that I have been privileged to be a Member of this place, I have always tried to stand up and be counted on something about which I feel strongly. I feel strongly against these amendments, principally because the prosecution service, as it is now called, at the end of a trial should not be able to go behind the judge's back and say that the judge imposed an insufficient penalty in the case. That is precisely what would happen. I am absolutely certain that that is wrong.

Having sat for many years both in Crown Courts and magistrates' courts, I should like to say that those who think that they know what is going on and the reasons for the sentence in all the courts of this country are wrong, because it is the judge, and the judge alone, who sees all the papers to do with every single case. When I say every single case I mean precisely that. Every case is different. Therefore every penalty must be different within the penalties correctly prescribed by Parliament.

I shall not speak for long but I wanted to say with the greatest possible humility—I see that the noble and learned Lord the Lord Chief Justice is no longer in his place—

Lord Hailsham of Saint Marylebone

He is here!

Baroness Macleod of Borve

—that the people of this country trust the judges. I have had so many letters saying, "We trust the judiciary. They are the people who have been trained to judge, and who are we"—that is, the people of the country—"to say that a trained judge is incorrect?". If one were so to state, then this clause might be necessary but I do not think that it is. As I have said, it would give the Executive undue power to interfere with the judiciary and that is not what the public wants. That the accused person should be tried only once is one of the fundamental principles upon which the criminal law of this country is founded. Suspended jeopardy was mentioned, and I would agree that that might be a way of looking at it.

The third and fourth amendments that we are considering might apply to magistrates. The training is very thorough as laid down by those in authority. The training is given locally by the clerk to the various courts. However, from my experience and from the figures that the noble and learned Lord has given us today, something must be done to see that there is more discretion—that is not the word I wanted—

Lord Elwyn-Jones

Consistency.

Baroness Macleod of Borve

—more consistency throughout the country. It is quite obvious that something more has to be done and we look to the judiciary to tell us what we have to do. I cannot support my noble friend in these amendments.

Lord Donaldson of Kingsbridge

Perhaps I may make one very short remark as a layman. It is what the layman always thinks when he hears a series of well thought out and well delivered views given by distinguished lawyers. At the end of each speech I thought, "There is a lot in what he says. I shall have to look at that tomorrow". However, at the end of the debate I stand exactly where I came in.

There are three issues which seem to me to matter. The noble Lord, Lord Grimond, mentioned them all. Should the prosecutor be involved even slightly more than he is today in sentencing? I feel that he should not. Will this new amendment have an effect on the length of sentences overall? It seems to me perfectly obvious that any rule anywhere that applies limits has effects. I say no more than that. Thirdly, and by far the most important issue, is not the double jeopardy but the double threat of jeopardy. This seems to me a principle that one must not forget. Our whole legal and political attitude to people who offend is that we want to catch them, try them, prove them guilty and punish them properly. I agree with all that. Having done so, many people like myself and many others in this Chamber try to help those people. The best way that we can try to help a criminal who has been sentenced is to stop him having his trial retried and being sentenced again. I shall oppose the amendment.

5.15 p.m.

Lord Mishcon

It falls to my lot to try to draw the strands together of this very vital debate on behalf of the official Opposition and I hope on behalf of our friends who sit on the Alliance Benches.

Perhaps I may make two quick observations before I start on an argument, which I assure Members of the Committee will not be long drawn out. Perhaps I may glance at the noble and learned Lord, Lord Ackner, and say with all due respect that it is not the custom in this Chamber to quote from lunchtime speeches that are made to a very ready ear and are sometimes misunderstood. If I recounted to noble Lords the lunchtime conversations that I have heard about certain Lords of Appeal in Ordinary I would offend Members of the Committee by so doing. There is obviously substance in quoting from a speech which is recorded in Hansard, but it is wrong that we should be influenced by anything other than that in regard to the utterances of the noble and learned Lord, Lord Scarman, who has a very deep place in our affections and respect.

My second observation is this. I was deeply touched by the references made from the Government Benches to the supreme wisdom of the system of justice in Australia. I felt that in current circumstances it might have been a little overdone.

The Earl of Caithness

I was referring to criminal justice.

Lord Mishcon

I am corrected by the noble Earl, who refers me to the fact that he was dealing here with criminal justice. I am referring to the judges of Australia who sit both in civil and criminal jurisdictions.

Turning immediately to the burden of the argument before Members of the Committee, the first matter to which I should like to draw the attention of the Committee is one that I do not think anybody has mentioned. We conducted the debate on the basis that we were dealing with only serious offences and we overlooked subsection (3) of the amendment which appears on the Marshalled List and which reads as follows: The Secretary of State may by order made by statutory instrument provide that this section shall apply to any case in which sentence is passed on a person for an offence triable either way of a description specified in the order". Members of the Committee are therefore asked to pass what has been called by the noble and learned Lord, Lord Hailsham, a revolutionary change—but he says that one should not mind doing something even if it is revolutionary—in the whole of our system of providing justice to an accused. We are saying that this can apply not only to the serious offences with which we are dealing today but that all we have to have is an order including other sentences from time to time and this amendment will apply similarly to all those offences. Before we know where we are we may be legislating for even minor offences.

What is the history of this matter? As I understand it, the history is this. There has been disquiet that there have been lenient sentences—it is admitted that that occurs only infrequently—where justice has not been done because there has been inconsistency. As the noble and learned Lord, Lord Hailsham, put it, inconsistency is the name of the game. That is what we are trying to deal with.

A suggestion was made in a Government White Paper—we have forgotten about that White Paper in the course of this debate—to deal with this very problem. In dealing with this problem the question of the Attorney-General and the part that prosecuting counsel or the prosecuting service would play in a revision of a lenient sentence was dealt with. I ought to remind the Committee of the considered view of the Government when they issued this White Paper in March 1986, which was only about 18 months ago. It stated: These arrangements"— the arrangements were the question of the counsel or prosecuting attorney telling the Attorney-General that there was a thought that too lenient a sentence had been passed— would inevitably require the prosecution to take a view of the sentence imposed in particular cases and to develop their own sentencing criteria against which it would be considered. I have left out a few words that are irrelevant. They could affect the relationship between the Attorney-General, the prosecution and the judiciary in a way which would not contribute to public confidence or serve the interests of justice". I am quoting from paragraph 8 of the White Paper called Criminal Justice: Plans for Legislation which was issued by the Government only 18 months ago.

I ask the Committee to forget that for a moment and to take it for granted that there have been second thoughts. All of us are entitled to second thoughts. The noble and learned Lord, Lord Denning, is entitled to third and fourth thoughts, but the Government have had second thoughts. The thoughts had such a long period of gestation that they lasted between the issue of the White Paper and the very serious step of drafting a Bill for Parliament to consider. The Government took the view that they must go beyond what was said in the White Paper and that they must include Clause 38 in the Bill which came before Parliament. That clause tried to deal with the inconsistency which was the name of the game. Without creating any jeopardy, double or otherwise, for an accused person who had been convicted and sentenced the provision covered this matter. It provided that in an appropriate case, where the Attorney-General took the view that a sentence raised a question of public importance—it dealt incidentally with a trial only on indictment: it did not have that little subsection to which I referred the Committee about any other offence which could be inserted in an order—with the leave of the court the matter could be referred to the Court of Appeal to obtain its opinion on the principles which should be observed in sentencing in similar cases in the future.

So the Government's second thought, having progressed, if you like, or having regressed, if you prefer, from the White Paper opinion, was to decide that this was the way in which to deal with the matter. Whether or not the Committee has views about this in relation to this clause, one thing everyone has to admit: it is miles better and more just than the amendment before the Committee. I gathered from the speech made by the noble and learned Lord, Lord Hailsham, that that too was his considered view. I believe, and the noble and learned Lord will correct me if I am wrong, that if this clause had been before the Committee today unamended the noble and learned Lord would have been able to give it unqualified support, whereas in regard to the present amendment, as we heard from his speech, there was qualified support. The qualified support was in line indeed with the speech he previously made and which was quoted completely accurately by the noble Lord, Lord Hutchinson of Lullington.

Going to that second stage means that we are going wrong. I say with the permission of those who lead me from this Front Bench that that is a clause which we on this side of the Committee would much prefer. We think it has deficiencies, and that is why we put down our own amendments; but we much prefer it to the present amendment that is before the Committee. We do it for the reasons which have been advanced and with which I do not want to weary your Lordships' Committee by repeating at length. However, I ask the Committee to reflect for one moment on one of those arguments.

Is it too emotional to ask the Committee to consider that part of our job in our legislation on criminal law is to give an accused a chance of rehabilitation? Is it too emotional indeed to take it for granted that we are dealing with a wayward son or daughter of a Member of this Committee? I shall not talk in terms of a Member of this Committee. A sentence has been imposed upon your son or your daughter—it could happen to any one of us; it has happened to some of us—and a judge has decided that he will give a suspended sentence or a fine. We talk to that young man when he comes back from that trial. We say to him "Well, you have been very fortunate. A judge of this country has been very merciful. You can go back to your employer tomorrow (he knows of course about the trial) and you can say to him Please give me my job back. I have not been sent to prison. I have been fined. I have a suspended sentence'.".

No parent will be able to do that ever again if this amendment is passed. He will have to say: "I have been told by the lawyer who defended you that we have to wait for 28 days because the Attorney-General may take another view on the advice of prosecuting counsel, who did not look very benevolent when that sentence was passed. You cannot go back to your employer and try to start life all over again, realising the mistake you have made. At the end of 28 days you will have to look at the list if the Attorney-General has decided that this is one of those cases, be it connected with drugs or whatever it is, where indeed as a matter of principle it ought to go before the Court of Appeal, Criminal Division".

It will depend on the list, the crowded list; and which will take precedence in that crowded list of the Court of Appeal, Criminal Division—appeals against conviction or appeals against sentence where the sentence is deemed to be too lenient? It will not be 28 days on any view at all. It will be months. In those circumstances, what will you as parents say if you have passed this amendment giving no chance at all of certainty, which is the one method of justice that is known in our courts? You know where you stand. You have been convicted; you have been sentenced; you know where you stand. This is the negation of all that we have tried to do in that part of our system of justice which deals with sentencing and which gives a chance of rehabilitation.

In conclusion, let me give a second reason why I hope Members of the Committee will say, "No, there is a better way of doing this". We ask the Government to reconsider and to go back to their own clause. We ask indeed that there should be no vote today; or, if there is a vote, that it is either a vote against or an abstention, because there is a better clause and that clause is in the Bill.

I listened—and I say this without even a smile on my face—to the noble and learned Lord, Lord Denning, who recited to us a case which has, I know, burdened his soul to such an extent that he has been good enough to recount it to us in this Chamber on four occasions. With regard to that case he was kind enough to reply to an observation that I myself made when he sat down on a previous occasion. He sentenced somebody to six months' imprisonment—

5.30 p.m.

Lord Hailsham of Saint Marylebone

Nine months.

Lord Mishcon

I am most grateful. No, it was not a drunken driver, it was a negligent driver. The man was of completely good character. He had driven in a negligent fashion and unfortunately people had been killed. What would have been the noble and learned Lord's view, I wonder, if he had had looking over his shoulder the possibility of prosecuting counsel going to the Attorney-General? Quite right, said the noble and learned Lord last time when I put it to him, he might have increased that sentence. I wonder whether in the noble and learned Lord's younger days the wisdom of mercy had not occurred to him then when he reflected that the person who was before him was of completely good character. He had driven negligently. He might have gone into a lamp post and the matter then would have been dealt with by a fine. He unfortunately went into a human being, or two human beings, and the result was disastrous. Does that mean that the noble and learned Lord was not right? He sentenced the man to prison. He sentenced him to nine months in prison. I believe that the noble and learned Lord was right in that judgment. He is nodding his head and possibly on reflection he now thinks he was. Thank heavens he did not have this amendment passed in law when he administered the sentence that he did.

Having said that, I plead with Members of the Committee not necessarily to vote in a way which kills all hope of remedying the situation of consistency of sentence. I do not even ask noble Lords to accept the amendments that we put down if they do not find them favourable. What I ask is that the Committee should vote in such a way or that the Minister should react in such a way that we can have second thoughts about this and, at the worst, if I may put it that way, go back to the reasonable, or more reasonable, clause which is in the Bill. That does not affect the particular accused but allows the edict of the Court of Appeal to go out—because that is how it will be judged—which will see to it that in cases of that kind there is consistency of sentencing thereafter.

The Earl of Caithness

Perhaps I may respond to some of the points made in this excellent debate and to the specific proposals which have been put forward by the Opposition. I should like to deal first with double jeopardy. I entirely support what the noble and learned Lord, Lord Ackner, and my noble friend Lord Campbell of Alloway said about double jeopardy. It was wrong to say that what we are talking about is double jeopardy. What we are talking about is where an offender has already been convicted and whether the sentence should stand as the correct and proper sentence. Indeed the noble Lord, Lord Donaldson of Kingsbridge, said that he supported the idea that it was right to "punish them properly". That is what we are talking about.

The noble and learned Lord, Lord Elwyn-Jones, supported by the noble Lords, Lord Mishcon and Lord Grimond, have argued that it would be intolerably harsh for the recipient of, for instance, a non-custodial sentence to have a custodial sentence substituted some months later. I agree that it is possible to imagine cases in which it was very hard on the offender. We have sought to avoid there being a protracted period of uncertainty about whether the original sentence will stand by imposing a 28 day time limit on the Attorney-General, and every effort will he made to arrange the hearings of these cases as early as possible. But we must not forget that it is the function of the courts to dispense justice. The Court of Appeal would not substitute a sentence which in all the circumstances seemed unjust in a case which commanded real sympathy. Nor is it likely that the Attorney-General would refer such a case in the first place.

It was argued by the noble and learned Lord, Lord Elwyn-Jones, and by the noble Lords, Lord Irvine of Lairg and Lord Donaldson of Kingsbridge, that the existence of the new procedure for sentences to be referred to the Court of Appeal will cause the judges to pass more severe sentences than they otherwise would to avoid the risk of being overturned by the Court of Appeal. I do not believe that that would be the case and it is certainly no part of my right honourable friend's purpose. Judges are strong-minded people and are accustomed from time to time to having their sentences overturned after an appeal by the defendant. As I have said, we do not expect that there will be more than a dozen or so references each year, so I think it is unlikely that their impact on general sentencing practices will be as the noble and learned Lord fears.

The noble and learned Lord, Lord Lane, suggested—and a point was raised by my noble friend Lord Windlesham—that subsection (1)(a) of the second new clause was not quite right. He thought the words "unduly lenient" should be omitted. The clause is drafted as it is because we thought it necessary to spell out the two possible types of case in sub-paragraphs (i) and (ii). We are talking about errors in law as well as a wrongly exercised discretion. We thought that if we did not say that expressly it might be thought that legal errors were not covered but, in view of what the noble and learned Lord has said, and his doubts, I shall gladly look again at the drafting of that part of the clause.

The noble Lord, Lord Hutchinson of Lullington, has quoted extensively from previous debates. His points have been well answered by the noble and learned Lord, Lord Denning, and by my noble and learned friend Lord Hailsham, who confirmed that in his view the role of the Attorney-General was not compromised by this clause. I was sad that the noble Lord, Lord Hutchinson of Lullington, thought that the old Commonwealth had inferior jurisdictions. It was perhaps a telling point that he also linked his thoughts on inferior jurisdictions to the point we were discussing a week ago on extradition.

The noble Lord, and indeed the noble Lords, Lord Wigoder and Lord Grimond, said that our proposals were an overhasty reaction to the tabloid press. That is absolute nonsense. I could not accept that accusation for a minute. This problem has gone on for some time, as I said when I proposed that amendment. It is the very reason that we still have that problem—that there is the lurking suspicion— that we have come back to this matter yet again.

The noble Lord, Lord Wigoder, said that the trial judge was better equipped than the Court of Appeal to enact a sentence. Surely in that case there would be no need for appeal for reduction of sentence, of which he then mentioned some examples. However, I think that that point was dealt with better by the noble and learned Lord, Lord Ackner, than I can deal with it at the moment.

I was quite pleased that the noble Lord, Lord Mishcon, seemed to have moved towards the government position as it was on Clause 38, but I must remind the Committee that he did not like it at Second Reading. He was very much part of the strong armoury on the other side in whose crossfire I was caught. I have no doubt that if we were still on Clause 38 he would be one of its strongest opponents.

Lord Mishcon

With his usual courtesy, the noble Earl has sat down to enable me to intervene. I made it perfectly clear in my speech, however ineffectual that speech might be, that Clause 38 was in fact an improvement by far on this amendment, and I hoped that that was the compromise that the noble Earl was about to accept. What I say quite definitely is that the Government have not yet explained—and no doubt the noble Earl will now do so—why they changed their mind about Clause 38.

The Earl of Caithness

I hoped I had made clear in my opening speech on this matter the reasons why we in Government changed our mind. I think it would be wrong for the Committee if I went back on that.

Lord Mishcon

Could the noble Earl summarise it?

The Earl of Caithness

It is clearly on the official record, and I hope that that is the right way of dealing with that particular point.

A theme which has run through the speeches of Members who have argued against our proposals is that the encouragement of good sentencing practice is best left to general guidance, and several noble Lords have referred to the guidance provided by the Court of Appeal. Perhaps I may say first that neither my right honourable friend nor I would dissent for a moment from the proposition that the guidance given by the Court of Appeal is the key to good sentencing practice. We have greatly welcomed the willingness of the court, under the leadership of the noble and learned Lord, Lord Lane, to extend and develop its previous practice. There are now, as a result, authoritative guideline judgments on a wide range of sentencing questions, from the appropriate penalties for particular types of offences to such matters as the use of the partly suspended sentence.

At the same time, the Judicial Studies Board has greatly extended its role in providing information and training for the judiciary, including information about sentencing guidelines. At the request of the noble and learned Lord, Lord Lane, the board has prepared a handbook of guideline judgments and has taken upon itself the task of distributing the handbook to the judiciary and keeping it up to date, but, as my noble and learned friend Lord Hailsham said, that is not enough, and that is one of the reasons for this amendment.

The question we had to address was whether that process of improving the judiciary's knowledge of, and access to, the Court of Appeal's guidance—to which, as will be clear from what I have said, the Judicial Studies Board has contributed greatly—would be assisted if the board's role were put on a statutory footing. We concluded that it would not, for three reasons.

The first was that the board is appointed by my noble and learned friend the Lord Chancellor and we feared that giving it any statutory role in sentencing might unhelpfully blur the distinction between executive and judiciary. The second was that, as I have said, a great deal was already being done without the need for statutory provision. And the third was that, important as the Judicial Studies Board's role was, putting it on a statutory footing would not have addressed directly the problem of over-lenient sentences. As time has moved on, we have become convinced that the more direct approach is right and necessary.

That does not, however, mean that we have ruled out the idea of giving the Judicial Studies Board statutory form. But if we decided to do so it would be to recognise its general training role and not to focus specifically on sentencing guidance, as the noble and learned Lord the Lord Chief Justice explained was its present role. Incidentally, I was surprised to see that the amendment would restrict the membership of the Judicial Studies Board to judges of the High Court or Crown Court. As now constituted, the board includes in addition to a number of distinguished judges a leading academic authority on sentencing, a lay magistrate, and senior officials of the Lord Chancellor's Department and the Home Office. Given the extent of the board's responsibilities I should have expected the movers of this amendment to regard some element of lay representation as desirable, as they do for their proposed sentencing council.

Amendment No. 42 raises a more radical possibility—that there might be a sentencing council under the chairmanship of the Lord Chief Justice, with membership which went beyond the senior judiciary. This is an idea which (as several noble and noble and learned Lords have noted) was first floated by the distinguished academic lawyer, Dr. Andrew Ashworth, several years ago. The argument, as I understand it, is that the policy to be followed by the courts in relation to sentencing touches on such a wide range of social concerns that it would benefit from the attention of a more broadly based group of people. I can see the attractions of that argument, but the idea of a Sentencing Council raises immensely difficult issues about the respective roles of the council and the judiciary, the sanctity of which we heard so much about from the noble Lord, Lord Hutchinson of Lullington. Would, for instance, the council supplant the Court of Appeal in its policy making if not its appellate role? Presumably it would.

The sentencing council idea is an interesting one, but I could not encourage noble Lords opposite to think that the time is ripe for its acceptance by the Government. Nor does it really meet the concern about lenient sentences to which the Government's amendments are addressed. With great respect to noble Lords opposite, it seems to me that the division in this debate is between those who believe that that concern should be addressed directly, and those who may have ideas, such as the sentencing council, which they would like to promote but who otherwise do not wish to address the problem of lenient sentences directly.

I conclude, as I began, as a layman, albeit fortified by the powerful support we have heard today from the senior judicial figures who have contributed to our debate—the speeches of the noble and learned Lords the Lord Chief Justice, Lord Ackner, Lord Denning, and my noble and learned friend Lord Hailsham. With great respect to those who have spoken against our proposal, it does not seem to me that they have sustained their central charge that it would itself do damage to the confidence in our system.

We are all human, and with the best will in the world mistakes occur. Judges can be reversed now when the defence appeals successfully against sentence. The fact that they can be reversed is evidence of the strength of our judicial system, not a reason for losing confidence. The far greater risk is that confidence will seep away every time the irreversibility of a waywardly lenient sentence impinges on the public consciousness.

Confidence in the judiciary is a precious thing. We have, I believe, found an equitable and acceptable means of allowing the occasional wayward sentence to be corrected. These clauses and the new schedule are the vehicle for doing so, and I strongly commend them to the Committee.

5.49 p.m.

On Question, Whether the said amendment (No. 40) shall be agreed to?

Their Lordships divided: Contents, 151; Not-Contents, 108.

DIVISION NO. 1
CONTENTS
Ackner, L.	Hailsham of Saint Marylebone, L.
Alexander of Tunis, E.
Allen of Abbeydale, L.	Halsbury, E.
Ampthill, L.	Harmar-Nicholls, L.
Arran, E.	Henderson of Brompton, L.
Auckland, L.	Hertford, M.
Beaverbrook, L.	Hesketh, L.
Belhaven and Stenton, L.	Hives, L.
Beloff, L.	Holderness, L.
Belstead, L.	Home of the Hirsel, L.
Benson, L.	Hood, V.
Bessborough, E.	Hooper, B.
Blatch, B.	Hylton-Foster, B.
Borthwick, L.	Johnston of Rockport, L.
Boyd-Carpenter, L.	Kaberry of Adel, L.
Brabazon of Tara, L.	Kimball, L.
Broxbourne, L.	Kinloss, Ly.
Bruce-Gardyne, L.	Kinnoull, E.
Butterworth, L.	Kitchener, E.
Caccia, L.	Lane, L.
Caithness, E.	Lane-Fox, B.
Cameron of Lochbroom, L.	Lauderdale, E.
Campbell of Alloway. L.	Lindsey and Abingdon, E.
Carnegy of Lour, B.	Long, V.
Carnock, L.	Lothian, M.
Coleraine, L.	Lucas of Chilworth, L.
Constantine of Stanmore, L.	Lurgan, L.
Cottesloe, L.	McFadzean, L.
Cox, B.	Malmesbury, E.
Cullen of Ashbourne, L.	Margadale, L.
Davidson, V. [Teller.]	Marley, L.
Denham, L. [Teller.]	Marshall of Leeds, L.
Denning, L.	Merrivale, L.
Dilhorne, V.	Mersey, V.
Donegall, M.	Monk Bretton, L.
Dormer, L.	Monson, L.
Dundee, E.	Mottistone, L.
Eccles, V.	Mountgarret, V.
Eden of Winton, L.	Mowbray and Stourton, L.
Elibank, L.	Munster, E.
Ellenborough, L.	Nelson, E.
Elliot of Harwood, B.	Nugent of Guildford, L.
Elliott of Morpeth, L.	Onslow, E.
Elton, L.	Orkney, E.
Erroll of Hale, L.	Orr-Ewing, L.
Fanshawe of Richmond, L.	Oxfuird, V.
Foley, L.	Pender, L.
Forester, L.	Penrhyn, L.
Fraser of Kilmorack, L.	Peyton of Yeovil, L.
Gainford, L.	Plummer of St. Marylebone, L.
Gardner of Parkes, B.
Gibson-Watt, L.	Portland, D.
Glenarthur, L.	Rankeillour, L.
Grantchester, L.	Reigate, L.
Granville of Eye, L.	Renton, L.
Gray of Contin, L.	Renwick, L.
Gridley, L.	Richardson, L.

Rollo, L.	Suffield, L.
Romney, E.	Terrington, L.
Roskill, L.	Teviot, L.
St. Davids, V.	Teynham, L.
Salisbury, M.	Thomas of Gwydir, L.
Saltoun of Abernethy, Ly.	Thorneycroft, L.
Sanderson of Bowden, L.	Torphichen, L.
Sandford, L.	Torrington, V.
Seebohm, L.	Trafford, L.
Sempill, Ly.	Tranmire, L.'
Shannon, E.	Trefgarne, L.
Sharples, B.	Trumpington, B.
Simon of Glaisdale, L.	Vaux of Harrowden, L.
Skelmersdale, L.	Ward of Witley, V.
Somers, L.	Whitelaw, V.
Stanley of Alderley, L.	Wilberforce, L.
Stockton, E.	Windlesham, L.
Strange, B.	Wise, L.
Strathclyde, L.	Wyatt of Weeford, L.
Strathspey, L.	Wynford, L.

NOT-CONTENTS
Airedale, L.	Lawrence, L.
Amherst, E.	Listowel, E.
Ardwick, L.	Llewelyn-Davies of Hastoe, B.
Attlee, E.	Longford, E.
Aylestone, L.	Lovell-Davis, L.
Basnett, L.	McCarthy, L.
Birk, B.	McIntosh of Haringey, L.
Bonham-Carter, L.	McNair, L.
Bottomley, L.	Mayhew, L.
Briginshaw, L.	Meston, L.
Broadbridge, L.	Mishcon, L.
Bruce of Donington, L.	Molloy, L.
Burton of Coventry, B.	Morton of Shuna, L.
Carmichael of Kelvingrove, L.	Murray of Epping Forest, L.
Carter, L.	Nicol, B.
Cledwyn of Penrhos, L.	Ogmore, L.
Cocks, L.	Paget of Northampton, L.
Cudlipp, L.	Peston, L.
David, B.	Pitt of Hampstead, L.
Dean of Beswick, L.	Ponsonby of Shulbrede, L. [Teller.]
Diamond, L.
Donaldson of Kingsbridge, L.	Prys-Davies, L.
Dowding, L.	Raglan, L.
Elwyn-Jones, L.	Rea, L.
Ennals, L.	Ritchie of Dundee, L.
Ewart-Biggs, B.	Robson of Kiddington, B.
Ezra, L.	Ross of Marnock, L.
Falkender, B.	Russell, E.
Falkland, V.	Sainsbury, L.
Fisher of Rednal, B.	Seear, B.
Fitt, L.	Serota, B.
Foot, L.	Shackleton, L.
Gallacher, L.	Shepherd, L.
Galpern, L.	Silkin of Dulwich, L.
Gifford, L.	Stallard, L.
Gladwyn, L.	Stedman, B.
Glenamara, L.	Stewart of Fulham, L.
Graham of Edmonton, L.	Stoddart of Swindon, L.
Grey, E.	Taylor of Blackburn, L.
Grimond, L.	Taylor of Gryfe, L.
Hampton, L.	Taylor of Mansfield, L.
Hanworth, V.	Tordoff, L.
Hayter, L.	Turner of Camden, B.
Houghton of Sowerby, L.	Underhill, L.
Howie of Troon, L.	Walston, L.
Hughes, L.	Wedderburn of Charlton, L.
Hunt, L.	Whaddon, L.
Hutchinson of Lullington, L.	White, B.
Irvine of Lairg, L.	Wigoder, L. [Teller.]
Jay, L.	Williams of Elvel, L.
Jeger, B.	Wilson of Rievaulx, L.
John-Mackie, L.	Winchilsea and Nottingham, E.
Kilbracken, L.
Kilmarnock, L.	Winterbottom, L.
Kirkhill, L.	Ypres, E.

Resolved in the affirmative, and amendment agreed to accordingly.

5.58 p.m.

The Earl of Caithness moved Amendment No. 41: After Clause 31, insert the following new clause:

("Questions as to sentencing

.—(1) If it appears to the Attorney General—

1. (a) that the sentencing of a person in a proceeding in the Crown Court has been unduly lenient because the judge—
1. (i) exercised a discretion as to sentence wrongly; or
2. (ii) erred in law as to his powers of sentencing; and
2. (b) that the case is one to which this Part of this Act applies,

he may, with the leave of the Court of Appeal, refer the case to them for them to review the sentencing of that person; and on such a reference the Court of Appeal may—

1. (i) quash any sentence passed on him in the proceeding; and
2. (ii) in place of it pass such sentence as they think appropriate for the case and as the court below had power to pass when dealing with him.

(2) For the purposes of this Part of this Act any two or more sentences are to be treated as passed in the same proceeding if they would be so treated for the purposes of section 10 of the Criminal Appeal Act 1968.)

(3)No judge shall sit as a member of the Court of Appeal on the hearing of, or shall determine any application in proceedings incidental or preliminary to, a reference under this section of a sentence passed by himself.

(4)Where the Court of Appeal have concluded their review of a case referred to them under this section the Attorney-General or the person to whose sentencing the reference relates may refer a point of law involved in any sentence passed on that person in the proceeding to the House of Lords for their opinion, and the House shall consider the point and give their opinion on it accordingly, and either remit the case to the Court of Appeal to be dealt with or deal with it themselves; and section 35(1) of the Criminal Appeal Act 1968 (composition of House for appeals) shall apply also in relation to any proceedings of the House under this section.

(5)A reference under subsection (4) above shall be made only with the leave of the Court of Appeal or the House of Lords: and leave shall not be granted unless it is certified by the Court of Appeal that the point of law is of general public importance and it appears to the Court of Appeal or the House of Lords (as the case may be) that the point is one which ought to be considered by that House.

(6)For the purpose of dealing with a case under this section the House of Lords may exercise any powers of the Court of Appeal.

(7)The supplementary provisions contained in Schedule (Questions as to sentencing—supplementary) to this Act shall have effect.").

The noble Earl said: I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 42 and 43 not moved. ]

Clause 32 [Certain either way offences relating to motor vehicles to be summary offences]:

On Question, Whether Clause 32 shall stand part of the Bill?

Baroness Macleod of Borve

I should like briefly to ask my noble friend the Minister two questions concerning Clause 32. Now that the offences of common assault, driving while disqualified and taking a vehicle without the owner's consent are to be dealt with by summary trial, will the defendant still be able to appeal to the Crown Court? Also may I be assured that any expenditure which will be incurred, instead of being taken to the Crown Court will be given to the local authority who have charge of expenditure in the magistrates' court?

6 p.m.

Lord Monson

We have become broadly accustomed over the years to government proposals to raise maximum sentences by fairly modest percentages: from five to seven years, say; from seven to 10 years; from 10 to 14 years; and from 14 years to life. A good deal less often, the maximum sentences have been reduced but again by fairly modest amounts. Even where alterations in maximum sentences are modest, as up till now they generally have been, they have often been fiercely contested in Parliament.

In this Bill we see, in contrast to the usual pattern, some extremely steep increases proposed—three and a half times the existing maximum in one or two cases and in one instance five times the existing maximum. As well as this we see some extremely sharp decreases proposed, ranging to over 83 per cent. This is why I have tabled a number of essentially probing amendments to try to establish the reason which has led the Government to propose such drastic changes, whether up or down. Are their proposals always well considered and thoroughly thought out or could they be a combination of money-saving exercises? Also, could they occasionally stem from snap decisions resulting from transient populist pressures, which are never an ideal basis for legislation? Clauses 32 and 33 would appear to be motivated by an otherwise commendable desire to save money—central government money, that is—as the burden (admittedly a lower burden overall) will be shifted from central to local government.

This transfer to the jurisdiction of a magistrates' court means that a lower maximum sentence must of necessity apply to offences which most people in this country consider to be fairly serious ones. In this I suggest that the majority of people have a good deal of logic on their side. In nearly every other country in the world that I can think of, car theft is car theft is car theft. Whether the thief intends to deprive the owner permanently of the use of his vehicle is neither here nor there. Frankly, this makes sense because not only is the owner enormously inconvenienced, to say nothing of being distressed, by being deprived of his or her motor car: he or she will almost certainly have to spend a good deal of money on fares and car hire. to say nothing of forfeiting the no claims bonus, and, even if there is no visible damage to the car in question, the resale value is likely to drop extremely sharply. This is because few prospective purchasers will touch a car which is known to have been stolen, even for a short time, for fear of the terrible treatment that is likely to have been meted out to the engine and transmission while in the hands of a thief. So the owner stands to lose far more than may at first seem probable, and for that reason the offence is far from being a trivial one. Certainly a reduction in the maximum sentence applicable from three years to six months seems excessive.

Nor is driving while disqualified, which is dealt with in subsection (2), a trivial offence. Apart from other considerations, a disqualified driver is an uninsured driver and although latterly compensation schemes have come into being all other motorists and indeed motor cyclists must pay for these by way of much higher insurance premiums. In addition, all road users and not only motorists and motor cyclists but pedal cyclists and pedestrians are likely to be at extra risk by virtue of the fact that a disqualified driver, almost by definition, is a menace to life and limb.

The reduction in the maximum sentence proposed is only 50 per cent. compared with the 83⅓ per cent. reduction for the offences covered in subsection (1). One nevertheless wonders whether a reduction even of this lesser magnitude is wise. For the first offender six months is obviously more than adequate, but for repeated offenders it may not be a sufficient deterrent. I should say that the RAC agree with me in their unhappiness about this clause, although they do not at present go quite as far as opposing it altogether. They are nonetheless not entirely happy with the proposals. I shall be interested to hear the views of the Committee on these matters.

Lord Campbell of Alloway

Very briefly, I support the Bill as it is drafted. I want to take only one very short point. The noble Lord says that theft is theft is theft in any system of law; but that is precisely the distinction which gives rise to the concept underlying Clause 32 that it is not theft. It is taking a motor vehicle or other conveyance without authority: and it is merely because it is not theft and there is no dishonest intent to deprive the owner permanently of it that it is relegated to trial in the magistrates' court. Although in due course I would be opposing the amendment of my noble friend Lord Elton, I am very supportive of the concept that someone charged with theft should have the right to trial by jury. I think the distinction here is such that the two clauses as drafted are wholly to be supported.

Lord Renton

I feel that the clause is right for dealing with these cases when they are first offences but if a person gets into the habit of taking motor cars without the consent of the owners and is convicted more than once I think there should be the possibility of trial by indictment. I must confess I have not checked this through to see what would happen for subsequent offences and if my noble friend Lord Caithness can enlighten me on that point I shall be very grateful.

Lord Denning

I should like to support the clauses as they stand. I think the jurisdiction of the magistrates is a first-rate jurisdiction and should not be held up by requests from the accused for trial by jury or the like. In other words, I should like to see—this comes under a subsequent clause to be dealt with by my noble friend Lord Elton—the magistrates given the best jurisdiction that is possible and I would support the clauses entirely.

The Earl of Caithness

The purpose of Clause 32 and of the two clauses that follow it is to make certain offences triable only in the magistrates' court which are at present triable either way: that is, either by the magistrates or in the Crown Court. Clause 32 refers to two such offences: taking a motor vehicle or other conveyance without authority (or taking and driving away, as it is commonly known) and driving while disqualified. Clause 33, which I shall deal with in more detail shortly, covers criminal damage of a value between £400 and £2,000. Clause 34 covers common assault.

These clauses also have the effect of removing the higher penalties presently available in respect of the offences when they are tried in the Crown Court. Your Lordships will know that offences are divided into three categories according to how they may be tried. As the noble and learned Lord, Lord Elwyn-Jones, will recall very clearly indeed, I am sure, this tripartite structure was recommended by the James Committee in 1975 and introduced by the Criminal Law Act 1977. The most serious offences, such as murder, rape and robbery, may only be tried on indictment by the Crown Court. The least serious, which represent the vast majority of the courts' caseload, may only be tried summarily by magistrates. Those of intermediate gravity may be tried either way, and either the magistrates or the defendant may insist on Crown Court trial. Since the maximum sentence available to the magistrates' court for any offence is six months' imprisonment, the system ensures defendants a right to jury trial for many offences which make them liable to more than six months' imprisonment.

The tripartite structure has served us well and the proposals in the Bill in no way depart from it. But the Government have thought it right, in the light of the greatly increased pressure on the courts and the prisons, and in the light of experience, to consider whether some offences could be removed altogether from the Crown Court. These are offences which are not intrinsically serious enough to warrant the complexities and expense of Crown Court trial and which only rarely result in a penalty above the magistrates' sentencing powers. The Government believe that for these offences the interests of justice are best served by the relatively speedy and economical despatch of cases by the magistrates.

I should say that nevertheless the Government did not embark on these changes lightly. The removal of jury trial is a sensitive issue, and rightly so. We therefore first canvassed opinion in a discussion paper issued last year with the Criminal Justice White Paper. The high level of support our proposals received from the major criminal justice practitioner bodies was most encouraging, and confirmed our belief that this would be a worthwhile measure to improve the capacity of the criminal justice system to deal fairly and promptly with those charged. We estimate that the changes proposed in Clauses 32–34 will reduce the Crown Court caseload by around 5 per cent. and the daily prison population by perhaps 300.

I now turn to the particular offences dealt with by Clause 32. The first is taking a motor vehicle without authority. The current maximum penalty on conviction on indictment is three years' imprisonment and/or a fine of any amount. The Government propose that the maximum penalty on summary conviction should be six months' imprisonment and/or a fine of level 5 on the standard scale—this is currently £2,000. No one can deny that people who drive off in other people's cars, often so-called joy-riders, are a downright nuisance, and the offence is regrettably all too common. But is the intrinsic gravity sufficient to warrant jury trial and quite lengthy periods of imprisonment? The courts appear to think not, because sentences of more than six months are awarded in only about 3 per cent. of cases. The offence falls short of theft because it does not require dishonest intent. If theft were proved, of course, higher penalties would be available. And it is generally young people—sometimes very young people—who commit the offence. The courts will therefore be slow to impose the harshest penalties.

Finally on this point, I should say that Clause 32 preserves the availability of the alternative finding of guilt of unauthorised taking where the original charge was theft. A person convicted in the Crown Court on this basis will be liable to the same penalties as if he had been convicted in the magistrates' court.

The second offence in Clause 32 is driving while disqualified. The maximum penalty on conviction on indictment is 12 months' imprisonment and½or an unlimited fine. The Government propose that on summary conviction the maximum penalty should be six months' imprisonment and½or a fine of level 5 [£2,000]. Driving while disqualified is a serious matter, as the noble Lord, Lord Monson, said. It involves wilful disregard of an order of the court. The James Committee concluded on balance that it should be triable either way. But since then we have seen the great majority of cases dealt with by the magistrates and within magistrates' sentencing powers. In only about 2 per cent. of cases is a sentence passed of more than six months' imprisonment. The Government therefore believe in the light of experience that it is safe and desirable to entrust all such cases to the magistrates' court. Also, I can assure my noble friend Lady Macleod that someone convicted in the magistrates' court of one of the reclassified offences would have a right of appeal to the Crown Court, and such appeals are heard by the Crown Court judge sitting with several magistrates.

With regard to the question of extra resources I can tell my noble friend that the magistrates' court would, under our proposals, hear some 5,000 additional cases per year. The effect would be offset to a limited extent by a corresponding decrease in the number of committal proceedings. That is certainly a net increase in workload. Of course it would be spread across the country and we expect that it would be absorbed to some extent within existing resources. We are talking about a system which processes well over 400,000 indictable offence cases a year and itself tries some three-quarters of them. But your Lordships will know that central government meets 80 per cent. of the cost of magistrates' courts by specific grant and therefore bears the lion's share of the cost of any increase in business. Any additional cost falling on local authorities should therefore be very small.

I can say to my noble friend Lord Renton that it is not intended that second or subsequent offences should be triable either way, having learnt from the experience gained since the 1977 Act. Given the facts that I have related to him, I hope that he will be able to agree that Clause 32 as set out in the Bill is the right clause. I would therefore propose that the clause shall stand part of the Bill.

6.15 p.m.

Lord Elwyn-Jones

Now that that elementary matter has been clarified perhaps we may continue. With regard to the proposal as to offences relating to vehicles and the particular offence in Clause 32 of driving whilst disqualified or taking a motor vehicle without authority, I believe that the James Committee, to which the noble Earl referred, did take the view that driving while disqualified was a serious disregard of a court order and therefore warranted trial by jury. I think that was the view that they formed, so that there is some substance, if he will not mind my saying so, in the noble Lord's proposals.

However, I am very conscious of the enormous burden that is now placed upon the Crown Courts and I would venture to think that in regard to this matter it might be appropriate to leave it to the magistrates' courts.

On the other hand, representations have been made that the offence of taking a motor vehicle without authority, as the Government's own discussion paper points out, is often committed by young offenders and that a conviction can have a very serious effect on their job prospects. But there it is. The arguments are not all on one side, and I thought it was worth at any rate ventilating some thoughts the other way.

Lord Roskill

May I say a word in support of Clause 32 as it stands? Speaking on this occasion perhaps as an ex-chairman of quarter sessions and an ex-magistrate, there is no reason on earth why magistrates should not try these cases. They are perfectly straightforward. One point which I suggest has been overlooked by those who oppose this is as follows. The desire to go for trial (which used to waste so much time at quarter sessions and does still waste so much time at the Crown Court) is to postpone the inevitable disqualification which must follow. The longer one can hold up and delay, the longer people will go on opting for trial by jury when they can. I always regretted, if I may say so, with all respect to the late Lord Justice James—and I said so to him at the time—that they had made the recommendation in the form they did. Now is the chance to put it right.

Lord Wigoder

May I simply say on behalf of my colleagues on these Benches that we welcome the proposals that the offences set out in Clauses 32, 33 and 34 be made summary offences?

Lord Monson

Perhaps I may briefly take up a point made by the noble Lord, Lord Campbell. He pointed out that in this country a distinction is made between taking a motor vehicle without consent—without authority—and car theft. That I entirely appreciate. I was well aware of that. The point I was trying to make was that in most countries, as far as I know, that fine distinction is not made, for better or for worse.

I was grateful for the very thorough explanation by the noble Earl, Lord Caithness, of the reason for the Government's move in this matter, and the statistics that he gave about the proportion of cases in which a sentence of over six months' imprisonment was actually used are certainly interesting. To some extent, though not entirely, that calms my disquiet.

But both the noble Lord, Lord Campbell, and he, as I understood, implied that somebody who takes somebody else's car for a day, a week or a month and drives it, and almost certainly does a considerable amount of damage to it before abandoning it, has no dishonest intent. If that behaviour is not dishonest, I do not know what dishonesty is. But be that as it may, as I have had no support in the Committee I shall not press my opposition any further.

Clause 32 agreed to.

Clause 33 [Criminal damage etc. as summary offences]:

On Question, Whether Clause 33 shall stand part of the Bill?

Lord Monson

Clause 33 seeks to raise the minimum amount of criminal damage, measured in terms of monetary value, below which the offence is triable only summarily with a maximum possible prison sentence of no more than six months. The clause does not seek to raise the minimum figure merely in line with inflation. None of us, I think, would quarrel with that. Instead it raises it very substantially in real terms.

The original limit was £200 and this was certainly the case in mid-1980 when the Act referred to in the Bill was passed. Subsequently the limit was raised to £400. This was above the rise in inflation but not excessively so. Now a limit of £2,000 is proposed. The retail price index has risen by between 55 and 60 per cent. since mid-1980, so if the minimum had simply been indexed it would now be set between £310 and £320. Instead the Government are proposing a minimum almost six-and-a-half times as great.

One appreciates the Government's desire both to reduce public expenditure generally and to reduce the prison population specifically. However, there is another side to the coin. I ask the Committee to consider the case of a householder, albeit a foolish householder, who leaves his front door open while he nips out to the corner shop. Someone passing by happens to notice that the door is ajar and sneaks in, there being no question of breaking and entering, with a view to nicking whatever he can and stuffing it in his coat pockets. In his frustration at finding nothing of value, he does the most terrible things to carpets, furniture, china, pictures and the clothing of the householder and his family and in the process £1,999 worth of damage is caused.

The deed is perpetrated by a man of straw so no compensation will be forthcoming to the unhappy householder or his family. Furthermore, the householder is a poor man who cannot afford the high household contents insurance premiums now payable in London and other large cities. So in addition to the shock at the desecration of his house, he is almost £2,000 out of pocket. The perpetrator can be sent to prison for no more than six months, but if he had smashed one extra saucer, bringing the total damage caused up to £2,001, he could theoretically go to prison for 10 years.

Something almost as upsetting could happen even if this householder of modest means had not been careless. He could, for example, have his five year-old car parked outside his house, correctly locked and with the windows wound up. Along comes a gang of football hooligans who are furious because their team has been badly beaten. They take it out on the householder's car, almost smashing it to pieces in the process, and again causing just under £2,000 worth of damage. The householder in question has only been able to afford to insure the car for third party, fire and theft, so that once again he stands to loose £2,000 with very little realistic hope of compensation in most cases. We know that there are some affluent football hooligans—a recent case has come to mind—but most of them are not.

Again the perpetrators could be sent to prison for no more than six months, although if they had been foolish enough to use the same degree of force upon a fully insured Rolls-Royce, Mercedes, Maserati or Jaguar—all of them much more expensive to repair than the first householder's ancient Ford or Renault—they too could theoretically go down for 10 years. One cannot help feeling that the £2,000 limit is at least twice as high as it should be and I shall be interested to hear the views of the Committee on this.

The Earl of Caithness

The purpose of Clause 33 is to make offences of criminal damage to a value between £400 and £2,000 triable only summarily in the magistrates' court. Under the Magistrates' Court Act 1980 (Section 17 and Schedule 1) the offence of criminal damage is triable either way. The maximum penalty on conviction on indictment is 10 years imprisonment and/or an unlimited fine. But Section 22 of the 1980 Act makes this offence triable only summarily where the value involved is less than £400. The maximum penalty in such a case is three months' imprisonment and/or a fine of level 4 on the standard scale. That is currently £1,000. We propose that these should henceforth be the maximum penalties for offences up to the higher threshold of £2,000.

The noble Lord, Lord Monson, rightly said that where more than one offence is charged it is the aggregate value which is decisive. So several offences totalling less than £2,000 would be triable only summarily. Wherever one draws the line, whether it be £400 or £2,000, one can use the argument that the noble Lord used. One has to draw the line somewhere and I shall come onto the reasons why we have drawn it at £2,000.

This change was not canvassed in the discussion paper which I mentioned earlier but was suggested in response to that paper by practitioners. I might cite in aid the Magistrates' Association and the Law Society. It seemed to us an entirely sensible and desirable course. It excludes the most serious forms of criminal damage. Arson and criminal damage intentionally or recklessly endangering life are both triable only on indictment and attract a maximum penalty of life imprisonment, irrespective of the value of the property involved.

The courts already have experience of operating a financial cut-off point through the existing £ 400 threshold. I understand it has not proved difficult to operate. We believe that the penalties available on summary conviction should be sufficient for higher value offences of up to £2,000. The sum of £2,000 seemed to us a sensible cut-off because it represents the upper limit of magistrates' power to award compensation, which of course would often be appropriate in criminal damage cases. I hope that with that explanation the noble Lord will allow Clause 33 to stand part of the Bill.

Lord Monson

I agree with the noble Earl that any limit that is set is of necessity an arbitrary one. There will be this curious anomaly whereby if damage is £1 over the top the maximum sentence of imprisonment rises 20–fold. That is a problem which we are always going to get. all I am arguing is that in this instance the limit appears to be too high. I am sure the noble Earl will agree that it has risen way above the rate of inflation. In the course of his answer, he has corrected some figures of mine. It is a little difficult when several Acts are referred to to find out exactly when the £200 limit became £400, but certainly the £ 2,000 limit is well above the rate of inflation.

The other point I should like to make is that to the aggrieved householder, that I am talking about, or any other householder, criminal damage is as traumatic as theft. Theft of property of the same amount would cause no less distress and no more distress either. It might actually be more unpleasant to find £2,000 worth of your goods smashed than to have them stolen. But there it is. I do not seem to have had much support on this, and certainly at this stage I do not intend to go any further.

Clause 33 agreed to.

Clause 34 agreed to.

6.30 p.m.

Lord Elton moved Amendment No. 43A: After Clause 34, insert the following new clause:

("Petty theft to be summary offence.

. Theft, where the value of property alleged to have been stolen does not exceed £100, shall be a summary offence and a person convicted of such an offence shall be liable to a fine not exceeding level 4 on the standard scale.").

The noble Lord said: This amendment concerns a short clause which would convert petty theft to a summary offence only. I do not pretend that the amendment is so tightly drawn that it could appear on the statute book as it now appears on the Marshalled List. But it is amply clear enough to allow the Committee to address an issue which I believe is central to the future efficiency and humanity of our law enforcement system.

The Committee does not need me to remind it of the crowding in Her Majesty's prisons. The noble Lord, Lord Irvine of Lairg, has already done that with great eloquence earlier this evening. Nor does the Committee need me to remind it of the present congestion in the Crown Courts which has been a subject of frequent reference.

However I can usefully remind the Committee of the fact that prisoners are not a uniform mass of identical individuals. They are of course just as different among themselves as noble Lords. But more to the point for this evening, not all of them are convicts at all. A large and growing proportion of them are remanded for trial. For the sake of simplicity I shall illustrate that statement by giving figures for remand prisoners that include a handful, but only a handful, of prisoners who have been convicted but who remain on remand awaiting sentence.

In 1979 there were, on average, 6,132 remand prisoners in the system. In 1986—last year—that average had increased by over 50 per cent. to 10,003. For this year in the months of January to June it stood at 11,655. A growth from just over 6,000 to just over 11,500 would be of great concern on its own, but it is more striking even than that because, while the 1979 figure amounted to only 14 per cent. of the total prison population, this year's figure amounts to 22 per cent. In other words, the total number of remand prisoners rose by about 63 per cent. from 1979 to 1986 and by almost 90 per cent. to the September figure this year. It now stands at over one-fifth of the whole prison population. Nor is that the end of it. Current projections suggest a remand population of about 15,000 in 1995, which is only eight years from now.

Even those figures do not give the full picture because remand prisoners must be detained separately from convicted prisoners. They are very properly presumed innocent by the law until they are proved guilty under the law. The Committee would not wish that otherwise and nor would I. However, as innocent citizens, albeit detained under the law, they rate privileges which may sound small but which are exceedingly demanding on staff and resources and which divert those staff and resources from paying attention to the majority of prisoners who are serving sentences after conviction.

There are a number of those privileges relating to visits and to sending in of food to which I cannot allocate a monetary figure nor a figure in man hours, although both would be considerable. The one with which the Committee is familiar is the duty on the prison service to produce a remand prisoner in court from time to time for further remand. He is produced because the court may decide to release him. At every appearance he must therefore be prepared for such a release. He must have all his personal belongings produced ready for return to him. He must be escorted to court. He must be kept secure until he is called for and he must then be returned to custody, perhaps in another prison altogether, with all the rigmarole of admission to be repeated.

That process averages out at a cost of £125 per production. I believe I am right in saying that the cost of keeping an average prisoner on remand is greater by 25 to 30 per cent. than that of keeping the average convicted prisoner. We are talking about very large sums of money which could be spent on the convicted population if it were not needed for this purpose. Is the Committee surprised therefore that an old prison Minister finds this area of overload of such compelling interest?

At this point I break the thread of my argument to ask the Committee not to conduct this discussion in the immediate context of the dispute going on, which is threatening to turn into industrial action on a wider scale between the Prison Officers Association of Wandsworth and the prison department of the Home Office. I share all the regret and despair of the noble Lord, Lord Harris of Greenwich, when he referred to this matter in Question Time the other day. I really am saddened by the prospect of the whole honourable movement of the Prison Officers Association getting bolted away with by this runaway horse.

Reverting to my argument, I would say that one thing that contributes to this anomaly—again I am saying nothing new—is the sheer length of time it takes to get a case to court. Quite often of couse that is due to the prisoner and his lawyer themselves. Prisoners like the expensive privileges of remand, and courts count time spent on remand when setting sentence. A prisoner who expects to be found guilty is therefore in no hurry to stand trial.

However, a great deal more delay springs from the overloading of the Crown Court in particular. The average waiting time in Crown Court custody cases was 9.6 weeks in 1981 to 1982 and 10.3 weeks in 1986 to 1987. What seized my attention over this delay was the composition of the work load with which the Crown Court is struggling. Some time last year the Home Office published in a small booklet a report called The Distribution of Business between the Crown Court and Magistrates' Courts. In it I read that the case load in the Crown Court increased by no less than 48 per cent. between 1979 and 1984. The Government had responded by increasing the number of circuit judges from 307 to 361 and the number of recorders from 412 to 432. But still the waiting time had inexorably risen and still the numbers on remand had inexorably grown.

In paragraph 21 of the report I read that what was then a recent survey in London suggested that: cases of theft and handling of goods worth less than £50 constitute 10 per cent. of the Crown Court's caseload and 8.8 per cent. of court time". I end the quotation there for brevity. The report is now 12 months or so old. The cutoff point which corresponds to the £50 of that date—in spite of what the noble Lord, Lord Monson, said a moment ago about inflation—is roughly £100 now, because if one substituted £100 for the £50 one would still arrive at a 10 per cent. figure for the proportion of the case load in the Crown Court.

I ask the Committee to consider whether the price we pay for involving a jury in such cases is not too steep, even in civil liberties terms. Trial by jury for one man means imprisonment, with communal sleeping in a cell containing two, three or more other men and three, four or more chamber pots and their contents for 10 weeks for a great many others. It was for that reason that I decided to ask the Committee to consider very carefully whether it believed that all the apparatus of the Crown Court and trial by jury was necessary for the trial of cases of really petty theft.

Let me remind the Committee that we are not talking about anything to do with violence; that would be robbery. We are not talking of anything to do with breaking and entering; that would be burglary. Nor, as the amendment is drawn, are we talking about sending people to prison without a jury trial. This is a simple offence where the only damage is the removal of property of what is now fairly modest value. I would be happy to consider reducing that threshold of £100 to £50 if the Committee so advised.

I submit that the appropriate response to that is a fine and not imprisonment. I exclude imprisonment for two reasons: first, because I believe that for nonviolent cases involving small amounts it would he inappropriate in any circumstances, let alone those of today; and, secondly, because I recognise the real fear that some Members of the Committee have of the stigma which conviction for an imprisonable offence can have upon some classes of offender who might be acquitted by a jury more easily than by a magistrate. Such persons could, of course, appeal against conviction and obtain a retrial in the Crown Court in the circumstances that my noble friend described a moment ago in a reply to my noble friend Baroness Macleod of Borve and then to the noble Lord, Lord Monson. Notwithstanding that possibility of retrial, I felt it right not to include imprisonment as an appropriate response to this class of offence.

I have said enough. My principal object in tabling the amendment was to hear the views of other Members of the Committee and, more important, to have them on the record for Her Majesty's Government to consider. I beg to move.

Lord Denning

I wish to say a word in favour of the amendment not only on the grounds that my noble friend Lord Elton has put—namely, that the Crown Court is overloaded with trivial cases and there is a long waiting list for trial with the many remands involved—but because in many cases the right to trial by jury is being abused, whether the offence alleged is shoplifting, petty theft of £10 or £15, or whatever it may be. The evidence may be reasonably clear against the accused and in practice he ought to plead guilty and be dealt with by the magistrates on that footing. As a matter of tactics, however, he says, through his defence lawyer, "I want to go for trial by jury. That will stave it off maybe for 18 months before it can get to the crown court. What's more, I can get legal aid and my lawyers will defend me then. It may take a day or two, I know I shall be convicted at the end; but I have a chance of getting off." Therefore, it is often a matter of legal tactics by defence lawyers in trivial cases to go to trial by jury.

When it is a matter of practical politics and doing justice, the case should be dealt with by the magistrates. They can deal with it perfectly fairly. As most Members of the Committee will know, our magistrates are first rate. Three of them will have regard to the burden of proof as well as anybody can. They will not convict the accused unless the case is proved beyond reasonable doubt. Many such trivial cases—I call them "trivial", but they are important to the individual—can be dealt with perfectly fairly and justly by magistrates in the way proposed in the clause rather than embarking upon the procedure of remand and crown court with the delay and expense that that causes. I support the amendment.

Lord Boyd-Carpenter

I understand my noble friend's argument, which is undoubtedly valid in the case of a single offence of a relatively trivial kind. However, as I read the amendment, it does not deal with the case—and such cases are all too frequent—of the habitual criminal in respect of whom this may be not the first charge but the third or the tenth. To go on trying regular petty thieves for a summary offence in this way with no possibility of imprisonment is to be extraordinarily ineffective. It is true that if convicted they will pay the fine. If they are making a regular living out of petty thieving, as I am sorry to say that such people are in some cities, they will look upon the fine merely as a kind of taxation. Indeed, it will probably turn out to be at a lower rate than the rates of income tax on legitimately earned salaries. Therefore, I am bound to say that I am not at all happy about the amendment as it stands.

Nor did my noble friend make clear how he intends to handle the case in which half a dozen charges are brought at the same time, as sometimes happens in respect of petty thieves. As I understand it, each offence is a separate one. If there were half a dozen charges therefore it would remain a matter to be dealt with summarily and without the possibility of imposing a sentence of imprisonment. It may be that my noble friend has an answer to these doubts. So far he has not deployed it. At present my doubts remain.

Lord Elton

As we are in Committee my noble friend would expect me to reply to the doubts after they are expressed rather than before. I have moved the amendment to allow Members of the Committee to discuss the proposal. The principal proposal is to relieve the system of no less than one-tenth of the burden. It is far greater than anything in Clauses 32 and 33—possibly twice as much as the two together. That being so, my noble friend may like to consider whether, if the amendment were changed so that it embraced the first offence only, he would find it more acceptable. We are at the first stage only of the Bill.

6.45 p.m.

Lord Renton

I wish to support my noble friend Lord Elton on the broad theme that he has put before the Committee. However, I should like to make two points. First, we are depriving a large number of people of what was regarded as an ancient and fundamental right of trial by jury on such a serious matter as the allegation of theft. Within our society even petty pilfering has been regarded as so antisocial as to incur general displeasure. In the past, rather than having a wanton conviction by a bench of magistrates who might be inexperienced amateurs, it was right to accord the right to trial by jury; but those days have gone. As my noble and learned friend Lord Denning has pointed out, the magistrates of today are trained people. A tremendous amount of care is taken, and they are well advised. They are expected to achieve—and indeed do achieve—a high standard of justice, which in the case of relatively small thefts enables us to withdraw the right to trial by jury. On that point I do not think that we need have any fears.

I go along with my noble friend Lord Boyd-Carpenter when it comes to the question of subsequent offences or a number of offences charged on the same occasion and bringing the total well above the £100 referred to by my noble friend. When the opinions of noble Lords on the broad principle have been gathered, I should have thought the right course for my noble friend Lord Elton would be to ask the Government whether they would accept the general principle, but on Report allow consideration of another amendment to deal with subsequent offences. In passing, I venture to say that in any event level 4 of the standard scale is a bit lower than we need to make it even in the case of a fine only. Level 5 as mentioned in Clauses 33 and 34 seems to be nearer the mark.

Lord Wigoder

I wish to say at once that I am full of admiration for the work that magistrates do. They try cases with great skill, competence, courtesy and common sense. Nothing that I say in opposing the amendment is intended to detract from that in any way.

I want to put two arguments against the amendment, one a theoretical one and one a purely practical one. The issue of principle is this. An allegation of dishonesty, however petty it may be, can be a very serious allegation for the individual concerned. I give a simple example. Of all the clients that I ever defended, I think that the one reduced to the biggest mass of hysterical jelly during the time that the jury was out considering its verdict was a senior police officer who had been charged with shoplifting something worth 3s 6d from Gamages. He was tried by jury. I do not think the question arises as to the competence of the magistrates to try that case. Of course they could have tried it with equal competence and I have no doubt they would have acquitted him just as the jury did.

The fact remains that where there is an issue of this sort which will reflect upon a man's reputation for the rest of his life, not only is he entitled to trial by his fellow citizens but society is entitled to see that that happens. I say that for the very simple reason that if a man is acquitted or convicted before the magistrates he can go away and make whatever comments he likes, particularly if he has been convicted. He will tell his neighbours, "Well, two of them were not of my political views; one of them is not of my social class. I have seen that bench before and they know the policeman who gave evidence. They see him regularly and of course they trust him". The neighbours will all say, "Poor Mr. So and So, how unlucky you were to have been convicted".

If a man in that situation is tried and convicted by a sample choice of 12 of his fellow citizens that argument is not available to him. That acquittal or conviction is final. He knows it and the community as a whole knows it. For that reason, as a matter of principle, it would be wrong to deprive anyone charged with an offence of dishonesty, however paltry the sum involved, of the right to trial by jury.

The practical point is simply this. The noble Lord, Lord Elton, referred quite rightly to the pressures of work upon the Crown Court. But we must not be under the impression that life at the magistrates' court is, if you forgive my saying so, anything of a doddle. The noble Lord said that it would take about nine weeks for a case involving petty dishonesty to come for trial at the Crown Court. I suggest that the noble Lord goes along to Bow Street magistrates' court and asks for a date for a simple contested case of dishonesty for an amount of less than £100, which may take two days. He will not get a fixture in nine weeks. It will be a jolly sight nearer nine months before that case comes to trial.

Lord Elton

The noble Lord will concede that as this is a summary offence with no imprisonment as punishment the person will not be nine weeks in prison. That is what I was talking about.

Lord Wigoder

No, but he may be nine months awaiting trial. The practical problem is this and Members of the Committee who have been justices will confirm it. In many parts of the country justices sit either in the mornings or afternoons. In some parts of the country they sit for one whole day each week or perhaps one whole day a fortnight. Going to tribunals of that sort and saying, "I have here a case which is quite complicated; it is true that the amount involved is only £100. I want a fixture where the same three justices can sit together on two or three consecutive days to try the case". That request would be quite impossible to meet and it would put an even greater burden upon the justices than there is at the moment. I venture to suggest that both on principle and on practical grounds this is a wholly impracticable amendment.

Lord Campbell of Alloway

May I—

Lord Mishcon

I have given way many times, as the Committee will have seen. I hope it will hear with me for just a few moments on this matter.

I want at once to pay a tribute to the noble Lord, Lord Elton, for bringing the matter before us in such a liberal way. He said that he is here to hear the views of the Committee on a matter which concerns us all, namely, the fact that our prisons are crowded and too often crowded with remand prisoners. The answer that I give to the noble Lord is this. By all means let us look again at the question of remands and the circumstances in which they are given. Let us send out an edict which is even stronger than the ones which this House has given in the past.

We can try to remedy the situation of the number of people on remand. From the practical point of view—and I am only anxious to raise points which have not been raised so far—the noble Lord said that the people concerned would be saved the problem of having prisoners on remand in this class of case for about nine weeks.

I tremble to think that we are sending people to prison on remand who are charged with an offence of as small a nature as this and who presumably have said that they wish to defend the matter and be tried by a jury. The objections which the police raise to bail under present regulations are the likelihood of the commission of another offence. If that is the case a fine is not going to be the answer. If it is to be imprisonment then quite obviously there must be the right to go before a judge and jury.

Lord Elton

I apologise for the frequent interruptions but I have obviously not made one thing clear. The reason why so many people arc on remand for so long is the congestion of the courts. It Vol. 489 does not follow that the cases which are congesting the courts involve people who are on remand. if a court is sitting on a series of cases of petty theft, other matters are held up. Persons who are charged with more serious offences cannot be brought to court until the court is ready to take them. If the court had less business the turn-round of remand prisoners who are not charged with petty theft would be very much quicker.

I hope I have made that clear. The noble Lord looks more mystified than he usually does, I must confess, after the interruption than before.

Lord Mishcon

I was not looking mystified at all. I was only regretting that I had misunderstood the noble Lord. It was a picture of regret that was supposed to he painted on my face and nothing more.

I am very grateful to the noble Lord for making that clear. I had not understood him before. I say two things about the delay caused by hearing petty cases at the Crown Court. It would be interesting to have some statistics as to how many cases of petty theft to the value of under £100 are in fact going to the Crown Court. It would be interesting to know what the percentage is. We will see then whether it really is a problem.

I adopt the argument of the noble Lord, Lord Wigoder, which is that it may very well be that the Crown Court lists are crowded. So are the magistrates' court lists. Many cases that come before the magistrates' court are of a serious nature and there are committal proceedings where the old-fashioned committal procedure takes place. That is where the whole of the prosecution case, at the instance of the defence, has to be brought before the magistrates.

These are matters which are delaying hearings in exactly the same way. I certainly say to the Committee that where there is the chance of imprisonment, and also the charge of dishonesty, there must be the right to go before a jury, whatever the value of the goods and quite apart from the question of whether it is a second or third offence.

Lord Elton

The noble Lord has overlooked the fact that the amendment does not allow of imprisonment.

Lord Mishcon

I said that.

Lord Roskill

I desire to support this amendment with all the force that I can. I understand that I am about to be reinforced by my noble and learned friend the Lord Chief Justice so I will he as brief as I can. Memory plays odd tricks, but my recollection is that this proposal was first put forward by the committee of Lord Justice James in 1974. Unlike the dying professor's advice, I have not verified my references. My recollection is that it found favour in this House but it was rejected in another place. That may or may not be right. The Minister says that I am wrong. I have a recollection that it was put forward and rejected.

There are a large number of reasons why, in one form or another, this amendment should be accepted. The first is the enormous pressure of work on the Crown Court. The second is that, as the noble Lord said when he intervened a moment ago, these cases hold up other and far more deserving cases.

The argument that is invariably put forward, and was put forward 10 years ago, is about the man of high reputation who steals the evening paper or bottle of milk off his neighbour's doorstep and it is said: "Oh well, his reputation is in peril, therefore he should have trial by jury." Magistrates send many people to prison for other offences involving reputation just as much they do for stealing a bottle of milk or an evening paper. There is no reason why this sort of petty theft should be in a privileged position any more than some of the offences which we debated earlier this afternoon. This proposal should go forward in one form or another.

The form of the amendment needs looking at a little more closely. The noble Lord, Lord Boyd-Carpenter, instanced the man who committed a dozen or more of these offences at the same time. The noble Lord, Lord Renton, said the same thing. There are various ways of dealing with this matter. The noble Lord, Lord Elton, suggested that his new clause should apply only to first offenders. I am not sure myself that that is quite sufficient because you may get someone who two or three years later does a silly thing a second time.

The other way, in the case to which the noble Lord referred, would be to allow committal for sentence by the magistrates to the Crown Court. That would not, as the law stands at the moment, meet the position. My recollection is, but I may be wrong, that on committal for sentence from the magistrates' court, the Crown Court can only on a summary offence pass the same sentence as the magistrates' court. However, there ought to be an easy way round that to allow the Crown Courts the same power as if the offence had been tried on an indictment.

In principle, this amendment is on the right lines and I invite the Committee to supportit

7 p.m.

Lord Campbell of Alloway

I hope that on no account will the Government accept the principle of this amendment. If it is ever put to the test I hope it will never be accepted whether proposed by the Government or by any other quarter.

Crowding in prisons is a serious problem. Delays in the Crown Court are also a serious problem; so are the pressures of work on the Crown Court; and so is the remand situation. A mandatory fine for theft of under £100 may be one way of dealing with this problem but on no account would the removal of the right of trial by jury be appropriate. I would not have limited it to scale 4. I would not have limited it to £100. But those are matters of drafting. It is the principle against which I rebel and I find it wholly unacceptable. Dishonesty and intent are all matters drawn by way of inference from primary evidence. I think one noble and learned Lord said that it was a trivial matter. Another noble and learned Lord said, "Well, it is the same old story. We hear about how serious it is but the magistrates can try it." That is all very well.

Certainly in my limited experience of these matters the people involved can be, for example, the wife of the manager of one of the big five banks. Somebody could be involved whose whole social life, employment prospects, or even their pension rights can be affected by a finding of dishonesty, shoplifting or something of that nature. It could not matter whether it is more or less than £100. The life of that person is wrecked, and wrecked for good. I shall never, as a matter of principle, support this amendment, notwithstanding that it is obviously made respectable by the support from the noble and learned Lords from the Cross-Benches.

Lord Hutchinson of Lullington

It gives me great pleasure for once to support the noble Lord, Lord Campbell of Alloway. I agree with everything he has said. The proposal of the noble Lord, Lord Elton, is objectionable on the fundamental ground that it is wrong to try to cure what is an administrative problem—the situation of the remand prisoners that we have gone on and on about for so many years—by trying to alter fundamental legal principles.

May I say without abuse that the noble Lord held a position in the Home Office for a long period with great distinction but he failed utterly to cure the problem of the remand prisoners. Why? Because he failed to get the remand prisoners out of the local prisons and insist on them not having this ludicrous degree of security, which they do not need, and failed to create remand hostels and places outside the prisons where they can go. The attempt to cure that problem by altering legal principles is simply to shift the responsibility from the Home Office, where it belongs, to the lawyers and the legal system. That is fundamentally the wrong approach.

The other fundamentally wrong approach is to concentrate on the value. It is the offence that matters, not the value. Try your parking and hundreds of other petty offences in the magistrates' courts, but theft is not a petty offence. When in a position of trust, whether you are a grandee in the Civil Service or whether you look after the till in the local village shop, if charged with dishonesty your character, worth more than pearls and diamonds, is at risk. I heard the noble and learned Lord, Lord Roskill, talking about it as though it is a petty matter. The noble and learned Lord, Lord Denning, said, "These people should plead guilty. These lawyers come along and ask for legal aid which they never should have. These people who appear in the magistrates' court should not have legal aid. It is the lawyers who come along and ask for legal aid so that they can get a nice fat fee and see that this person is properly defended." Sometimes the noble and learned Lord lets cats out of bags and we begin to see the approach of the higher judiciary to these problems.

The matter of principle which we debated in the last amendment in the criminal law seems now to have gone out of the window. Nobody bothers. Is it important that a person's character is at stake, that he should have legal aid, that he should be tried by his own peers, that he should be entitled to a fair trial? Is that not important any more in this country? "Oh no," they say, "Get rid of legal aid. Get on with the case as quick as you can and let us deal with it. Give the muggers trial by jury because that is violence, but not the persons who are alleged to have stolen something out of a shop worth 3s 6d. He must be tried by the magistrates and he ought to plead guilty." No, for goodness sake do not allow this amendment to go through.

Lord Lane

I am incapable of the sort of histrionics we have just heard. Anything I say will be, by comparison at any rate, extremely dull. I support this amendment. It is purely a matter of practical and very dull politics. I am unmoved by Lord Campbell's bank manager's wife. She deserves to be treated in exactly the same way as anybody else. Nor is anyone altering any fundamental legal principles. The fundamental legal principle is that no one is convicted unless the prosecution proves the case so that the jury or the magistrates feel sure. That is the fundamental principle and that is not in issue here. Without going into any statistics, there is no doubt that a very significant proportion of valuable Crown Court time is taken up by dealing with this sort of case. It was said that 10 per cent. is the figure. I do not know and I would not quarrel with that. We are also told that the cost of one day in the Crown Court runs into thousands of pounds; something like £3,000 or £4,000. We all know, particularly in the South-East, that the delay in criminal trials is unacceptable. Try as one will, it is almost impossible to keep pace with the increase in the number of offences sent for trial, which, I think, has risen by 50 per cent. in the past six or seven years. In addition, we now find the Crown Prosecution Service desperately short of money.

The choice is simple to state. It may not be easy to make. We can either continue to expend huge sums of money on trying these cases of petty theft, at whatever level one likes to say is petty, at the same time expending large amounts of extremely valuable Crown Court time, which could be taken up by trying important and substantial cases. That is what the luxury of jury trial means. Or we could relegate the petty theft to the same category as travelling on the railway without paying for a ticket, or bilking London Transport, which is just as dishonest as stealing milk bottles or shoplifting a tin of beans from Woolworths. It carries the same stigma, and yet that, as I undestand it, is not triable in the Crown Court; it is triable only by the magistrates' court.

I say respectfully that on any rational basis, sentiment apart, trial by the justices, with no option for jury trial (as the James Report recommended 11 or 12 years ago) seemed to be the obvious answer. If, on the other hand, sentiment is preferred to speedy and economical justice, then no rational argument will ever prevail.

Lord Donaldson of Kingsbridge

May I just ask the noble and learned Lord whether he meant luxury when he spoke of the luxury of jury trial? It is a curious idea. I should have thought "luxury" was wrong, and I should like to give him the opportunity to withdraw the word.

Lord Lane

I do not.

Lord Donaldson of Kingsbridge

May I say thank you to the noble and learned Lord?

The Earl of Caithness

My noble friend Lord Elton gave notice of his interest in this matter on Second Reading, and he does this place a great service by raising it again today when we have had the opportunity to consider it in more detail. I have listened with the greatest interest to the views of all Members of the Committee.

As the noble and learned Lord, Lord Roskill, said, the history of the proposal that minor cases of theft should be triable only by the magistrates' court goes back to the James Committee in 1975. It did not however survive into the Criminal Law Act 1977, despite a most eloquent defence in Committee by the then Lord Chancellor whom I am delighted to see opposite me today. On that occasion he was a little hampered by the noble Lord, Lord Wigoder, who performed some enviable arithmetical gymnastics with the proposed threshold sum of £20 and a tin of caviar, if I remember correctly.

Lord Elwyn-Jones

Does the noble Earl remember the opposition of Lord Morris of Borth-y-Gest and the noble and learned Lord, Lord Edmund-Davies: "who steals my purse steals trash", and the rest of it? Wonderful!

The Earl of Caithness

Indeed, and I refreshed my memory on that debate earlier this morning. Just as some of the faces in the Chamber today are the same as during the debate on the Criminal Law Bill 10 years—and nine months ago, almost to the day—the main issues at stake are familiar, too. The Government exposed these fully last year in the discussion paper on the distribution of business to which I have already referred today. We set out the arguments for and against change, and floated a possible approach, short of full reclassification, which we thought might have satisfied one of our main objections raised in response to the James Report. That our exposition was even-handed I cannot doubt since responses to it were split down the middle, just as in today's debate. The only point on which there was virtual unanimity was that the possible compromises we had floated would not do.

There remain powerful arguments on both sides. My noble friend Lord Elton has pointed out that his amendment could reduce the Crown Court's workload by up to 10 per cent. I need hardly say what welcome relief a reduction of that order would bring to the Crown Court. Crown Court business has increased by over 50 per cent. since 1979 and the delays in bringing cases to trial are a source of concern to us all. We are tackling these through statutory time limits and other means; but a once-and-for-all reduction in workload would be desirable. A reduction in maximum sentence would also have a beneficial effect on the prison population.

Members of the Committee have argued that too many petty thieves clog up the criminal justice system. Our best estimate—it is only an estimate—is that up to half of all theft and handling cases taken to court involve sums of less than £100. That would mean that magistrates' courts deal with some 120,000 petty thieves a year. Something approaching 10,000 are committed for Crown Court trial. Only about 7,000 of these are sentenced to imprisonment. Even in the Crown Court, a clear majority receive non-custodial sentences.

Resource considerations are not of themselves a justification for deciding to treat an offence differently. We must be satisfied that such an offence can properly be dealt with by the magistrates. My noble friend argues that we can be so satisfied, and I find his argument persuasive. He has gone so far as to say that a fine of Level 4 (£1,000) is an adequate maximum penalty without the possibility of imprisonment. That point was taken up by my noble friend Lord Boyd-Carpenter, who felt that that was perhaps not the right sentence.

7.15 p.m.

Lord Boyd-Carpenter

The point that I took was that that was not the right sentence for a second or subsequent offence or for a group of offences charged simultaneously. Arguably it is, for one offence.

The Earl of Caithness

I am grateful to my noble friend for correcting that point. I should need to reflect further on the point relating to sentence with my right honourable friend, having listened carefully to the views expressed by the Committee.

On the other hand, we have heard some important objections of principle. The first mentioned today by the noble Lord, Lord Hutchinson of Lullington, is that the value of property stolen is not a reliable indicator of the seriousness of the offence. That is the valid point. In order to assess seriousness, one must consider the full circumstances of the offence and the effects on the victim. Recognising that, our discussion paper proposed that magistrates' courts should be able to commit cases for trial where special circumstances made the offence one of exceptional gravity. But respondents felt that that did not adequately meet the point of principle at stake and that it would create an undesirably complicated set of procedures, departing from the present clear demarcation between summary offences and offences triable either way, and that the benefits of reclassification would be so diluted as to be not worth pursuing.

The second and perhaps even more intractable objection was forcefully put by the noble Lord, Lord Wigoder, supported by my noble friend Lord Campbell of Alloway. It is that for many people a conviction for dishonesty can have devastating effects. It can destroy reputations and take away livelihoods. Anyone in jeopardy of such consequences should be entitled to have his case put to a jury. I fully understand and respect that point of view, not, I hasten to add, because I accept the implication that magistrates supply an inferior justice—I believe that the magistrates' court is the right forum for these offences—but because of the wider question of confidence in the criminal justice system.

Despite saying that, I was interested to hear what the noble and learned Lord said about the magistrates' courts. He was supported by the noble and learned Lord the Lord Chief Justice. It is of course true that they try other cases affecting people's livelihoods; but that is something we ignore at our peril. I said so when we were debating the very different matter of correcting unduly lenient sentences. I do not think that any of the Members of the Committee would disagree on the aim, although some may have different views about the means of achieving it. I have listened with great care to the arguments on all sides. My noble friend Lord Elton has been most persuasive, bringing to bear, as he does, his experience as a much respected former Home Office Minister. He has obtained support, qualified or unqualified, from several Members of the Committee, including the noble and learned Lord Chief Justice. Others have spoken powerfully against the amendment. Having heard the Committee's views, I think that it is right for me to take the issue away and consider carefully with my right honourable friend the Home Secretary what has been said.

Lord Elton

I am most grateful to my noble friend for that undertaking. It almost denies me the chance of replying to a number of points that have been made because I am so grateful that I do not wish to make a speech.

Perhaps I ought to pursue the argument of my 10 years of office with the noble Lord, Lord Hutchinson of Lullington, in another forum. I would only say that I was acutely sensitive to the point that he raised. When I was a Minister I made it my business to talk in particular to young offenders in local prisons asking whether they would like to be moved away to somewhere less crowded and further away from their parents and friends. Unanimously they wished to stay where they were. The problem is not as simple as it is often seen to be.

I am most grateful to my noble friend. I hope that I shall hear from him before the next stage. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Arran

I think that this might be a convenient moment for the Committee to adjourn. I suggest that the Committee stage begins again at 8.20 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.21 to 8.20 p.m.]

Clause 35 agreed to.

Lord Irvine of Lairg moved Amendment No. 44: After Clause 35, insert the following new clause:

("Assaulting a police officer etc. to be triable either way.

(1) The offence of assaulting a constable in the execution of his duty or a person assisting a constable in the execution of his duty under section 51(1) of the Police Act 1964 shall be an offence triable either way within the meaning of section 64 of the Criminal Law Act 1977 (instead of only summarily).

(2) In section 51(1) of the Police Act 1964, after the word "liable" there shall be substituted for the words in column 3 of Schedule 1 of the Criminal Law Act 1977 (as amended by section 46 of the Criminal Justice Act 1982) the words:—

1. "(a) on summary conviction, to imprisonment for a term not exceeding six months or in the case of a second or subsequent offence nine months, or to a tine not exceeding level 5 on the standard scale or to both;
2. (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both."

(3) In Schedule 1 to the Criminal Law Act. 1977, leave out paragraph 18 (Police Act 1964).

(4) In Schedule 1 to the Magistrates' Court Act 1980, insert a new paragraph 23A as follows: ("23A. Offences under secton 51(1) of the Police Act 1964.")").

The noble Lord said: I rise in this moderately crowded Chamber to move this amendment. Section 51(1) of the Police Act 1964 created the offence of assaulting a constable in the execution of his duty. It also applies where a victim is a person assisting a constable. I am sure that we all agree that the offence is a serious offence. It matters not whether the policeman suffers bodily harm. The police are our representatives to secure good order and to protect our citizens. They are entitled to expect us to look upon it as a more than merely minor matter when they are met with violence or the threat of violence.

This is a view, as one would expect, shared traditionally by the courts. The Court of Appeal in a 1973 case said that a custodial sentence was to be considered normal for a deliberate assault on a police officer. As I understand it a comparatively high proportion of those convicted find themselves sent to prison, and rightly so.

I invite the Committee to draw two conclusions from this. First, an offence under Section 51(1) should carry a substantial maximum penalty reflecting the fact that, even though the officer may have been fortunate and not have suffered injury, the conduct complained of can be very serious. For example, it is always very serious when it occurs in the course of resisting arrest.

The second conclusion is that a defendant charged under Section 51(1) should be able to elect for trial by jury, all the more so because the circumstances of the alleged offence may be confused and there may be a serious conflict of evidence. Before 1977 there was for a defendant convicted by a jury in the Crown Court a proper maximum penalty of two years' imprisonment. But it was only the prosecution, not the defence, which had the right then to opt for jury trial. The 1975 James Report on the distribution of criminal business correctly regarded this as unsatisfactory. But instead of following the James Report's recommendation and allowing a defendant to opt for jury trial, the Criminal Law Act 1977 dealt with the imbalance by making the offence triable only summarily before magistrates. It necessarily followed that the maximum penalty had to be reduced to six months. So, for the sake of keeping defendants out of the Crown Court, this serious offence was unjustifiably downgraded.

The purpose of this amendment is, on the one hand, to restore a suitable maximum penalty and, on the other hand, to give the defendant charged with this offence rights commensurate with it. I appreciate that the present thrust of government policy revealed in Clauses 32 to 35 of the Bill is to add to the list of offences triable only summarily. But I submit that Section 51(1) of the Police Act 1964 has good claims to he a special case.

Nothing I say, I hasten to emphasise, is to be taken as involving any lack of confidence in or any lack of appreciation for the fine work that magistrates do daily up and down the country. But, apart from the pressing need to show strong support for the police in the face of rising crime, it is also necessary to bear in mind that it would not be surprising if a Section 51(1) offence of assaulting a police officer in the execution of his duty is the kind of case where the police very naturally view events from their own point of view. These are obviously cases where it is of critical importance that there be public confidence in the resolution of conflicts of evidence that may arise. Therefore the possibility of a jury trial is important so that justice may be seen to be done. It is also necessary in order to curtail the practice which there may be of charging serious cases under Section 51(1) and so avoiding the case going to jury trial in the Crown Court.

I commend the amendment to the Committee and, if it finds favour, the Committee will be in the happy position of at the one time both voting to support the police and providing a proper safeguard for the defendants in these cases. I beg to move.

Lord Boyd-Carpenter

I hope that my noble friend will look with sympathy on the purpose of this amendment. I am not sure whether technically it is correct in form or will fit perfectly into the existing legal structure, but the purpose of treating an assault on a police officer in the execution of his duty as a more serious offence is one that I should wish very strongly to support.

The police nowadays are exposed only too frequently to a great deal of violence, to attacks made upon them in the course of their duty, and in some ways they have a more difficult time than they ever had before. It might be some encouragement to them if the legislature indicated that it appreciated this by upgrading the offence of an assault upon them in the execution of their duty. I shall be interested to hear what my noble friend has to say.

Lord Hutchinson of Lullington

I also should like to support the amendment. It is nice to hear that the noble Lord, Lord Boyd-Carpenter, also supports it, because, speaking from my own experience, I have never undertood why this offence is not triable by jury. It has always been one of the great mysteries. It is one of the most serious offences that the citizen can possibly be convicted of, and must find its place among serious offences. It is far more serious than a great many offences for which one can always choose trial by jury. One cannot shut one's eyes to the fact that on many occasions an assault on the police is charged by the police when things get difficult in any sort of arrest situation. Very often that is alleged because somebody has been approached by the police, has been cheeky to the police or has had some difficulty with the police, so that the police charge them with this offence ultimately, whether rightly or wrongly. But it is a matter which constantly arises and it gives the police a very strong power indeed. Very often it is a question of the citizen's word against that of a number of police officers.

It is an issue which requires, almost more than any other issue, a really detached approach to try to find the truth in this kind of allegation. One cannot shut one's eyes to the fact, again, that magistrates get to know their own police officers by the nature of things. They get to know the police who constantly appear in their courts. It is extremely difficult to be able to keep an absolutely balanced and open mind if it is alleged that there was an assault on an officer who you know very well is a good officer. It should be open to the citizen in these circumstances to go for trial by jury if he feels that possibly the magistrates will not have an open mind on the matter. Like the noble Lord who has just spoken I too should like to hear what the Minister has to say about this. What is the reason for not enabling people to go for trial on this offence, which after all is one of the most serious offences with which anybody can be charged?

8.30 p.m.

The Earl of Caithness

I know that we all sympathise wholeheartedly with the reasons of the noble Lord, Lord Irvine of Lairg, for moving this amendment. Police officers in the course of their duty are often exposed to the risk of attack and they are entitled to expect whatever protection the law can give. I shall be inviting the Committee on a future day to consider the Government's proposals for tougher controls on offensive weapons and knives. My right honourable friend the Home Secretary made it clear in announcing these measures that he had very much in the forefront of his mind the young police officer whose job is made so much more dangerous by knife-wielding thugs and the ready availability of nasty weapons. That is an important step forward in tackling the cause. But it is right also, as the noble Lord, Lord Irvine, invites us to do, to consider punishment and deterrence.

The law recognises the need for special protection for certain categories of people who are especially vulnerable by reason of their age, occupation or other personal circumstances. Only last Thursday the Committee had a very full and valuable debate on the special needs of children in the criminal justice system. Police officers are another group whom the law singles out for certain purposes. The very existence of a specific offence of assault on a police officer marks society's view that it is a special case; and the courts will have regard to this when passing sentence. The Court of Appeal has made it clear that for any assault on a police officer involving the deliberate use of force the normal sentence will be a loss of liberty. It has upheld custodial sentences in cases where the degree of force used was far from severe and the injury to the officer minimal.

But the courts have never represented to my right honourable friend that the six month maximum for the 1964 Act offence hampered their sentencing. We are not here considering serious attacks causing grave harm to the police officer. The charge of assault occasioning actual bodily harm, which carries a maximum penalty of five years' imprisonment, is available for those cases. I do not underestimate the seriousness of any assault on a police officer. But I must ask the Committee to consider whether the magistrates are not fully competent to deal with the more minor assaults, whether jury trial is really justified in such cases when we are trying in other ways to relieve the Crown Court and whether there is any reason to think that the existing maximum penalty is inadequate.

It has been suggested that the magistrates should not try these offences because the evidence often comes down to a dispute between the accused and the police officer, who may be the only other witness. Magistrates hear the evidence of police officers every day on a multitude of charges. They are used to assessing its weight. It is quite mistaken to think that they are incapable of dealing fairly with this offence. The strong underlying principle of the Criminal Law Act 1977 is that the mode of trial for an offence should be driven by the maximum penalty to which the offender is liable. For the reasons I have given, the Government consider that six months' imprisonment is the appropriate maximum penalty for this offence, and that points firmly to summary trial. However, I recognise that those who have spoken in this short debate have all expressed support for the idea and I shall reflect on it further in the light of what has been said.

Perhaps I may turn to the details of the noble Lord's amendment. He proposes a higher maximum penalty of nine months' imprisonment on summary conviction of a second or subsequent offence. Section 35 of the Criminal Justice Act 1982 abolished enhanced penalties in practically all existing legislation. Moreover a sentence of nine months is outside the magistrates' sentencing powers. The Government would therefore find it difficult to accept the proposed maximum penalties on summary conviction in the noble Lord's amendment. However, in view of the support the noble Lord has had from all parts of the Committee I should like to take this away and discuss it with my right honourable friend the Home Secretary.

Lord Irvine of Lairg

In view of the noble Earl's undertaking to give the matter further consideration, I withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 36 and 37 agreed to.

Clause 38 negatived.

The Earl of Caithness moved Amendment No. 47A: After Clause 38 insert the following new clause:

("Power of Court of Appeal to order retrial.

.—(1) The Criminal Appeal Act 1968 shall be amended as follows.

(2) In section 7(1), the words "and do so only by reason of evidence received or available to be received by them under section 23 of this Act" shall cease to have effect.

(3) At the end of subsection (I) of section 8 there shall be added the words "but after the end of two months from the date of the order for his retrial he may not be arraigned on an indictment preferred in pursuance of such a direction unless the Court of Appeal give leave.".

(4) The following subsections shall be inserted after that subsection— (1A) Where a person has been ordered to be retried but may not he arraigned without leave, he may apply to the Court of Appeal to set aside the order for retrial and to direct the court of trial to enter a judgment and verdict of acquittal of the offence for which he was ordered to be retried. (1B) On an application under subsection (1) or (1A) above the Court of Appeal shall have power—

1. (a) to grant leave to arraign: or
2. (b) to direct the entry of a judgment and verdict of acquittal,

but shall not give leave to arraign unless they are satisfied—

1. (i) that the prosecution has acted with all due expedition; and
2. (ii) that there is a good and sufficient cause for a retrial in spite of the lapse of time since the order under section 7 of this act was made."

(5) Nothing in this section applies where notice of appeal or of application for leave to appeal was given before the commencement of this section.").

The noble Earl said: With this it may be convenient to discuss Amendments Nos. 256A, 256B, 260B, 267A, 240, 241 and 267. Amendments Nos. 240, 241 and 267 are in the name of the noble Lord, Lord Wigoder. At this stage perhaps I may say that I am grateful to my noble friend Lord Campbell of Alloway for withdrawing the amendment that was in his name.

All these amendments seek to extend the present power of the Court of Appeal to order a retrial when allowing an appeal against conviction. There is substantial agreement among all the proposers on what is needed. Naturally I favour my own amendments and hope that I can persuade the other proposers to the benefits of my suggestion and the Committee to agree that they be incorporated in the Bill. The noble and learned Lord the Lord Chief Justice is unfortunately unable to attend our debate because of judical business but he has authorised me to say that he supports my proposals.

Section 7 of the Criminal Appeal Act 1968 permits the Court of Appeal to order a retrial if it appears to it that the interests of justice so require, but only if it has allowed the appeal against conviction by reason of evidence received or available to be received under Section 23 of the Act. Thus if the court has to quash a conviction because, say, the judge misdirected the jury or because evidence was wrongfully excluded or admitted at the trial at present, it has no power to order a retrial. I think no one can dispute that because of this limitation people who on the merits are probably guilty can escape justice on a technicality and that cannot be right. This anomaly is even more striking when one looks at the position in Scotland or Northern Ireland. In 1966 Parliament gave the Northern Ireland Court of Appeal a wide power to order a retrial. The only limitation is that the court considers this in the interests of justice. Similarly in 1980 the Scottish High Court was given an unfettered power to order a retrial on allowing an appeal against conviction.

In view of these developments last March we issued a consultative paper covering an extremely helpful paper from the criminal law team of the Law Commission on this subject, seeking comment on whether the English Court of Appeal should be given similar powers. All those who responded were in favour of extending the existing power. There was general agreement that the court should be able to order a retrial where the interests of justice so required whether or not it had allowed the appeal on the basis of fresh evidence. That would be the effect of my amendment and those in the names of the noble Lord, Lord Wigoder, and the noble and learned Lord, Lord Ackner. As I have said this is also the view of the noble and learned Lord, Lord Lane.

Where my own amendment differs from that of the noble Lord, Lord Wigoder, is in the introduction of a time limit within which a retrial must normally commence, Many commentators on our consultative paper felt that a wider power should he balanced by such a safeguard for the accused. We agree and have adopted two months as is the case in Scotland. This cannot be an absolute limit. For example, a retrial cannot commence if the accused has absconded or is simply too ill to be arraigned.

What I propose is that if the retrial has not commenced within two months the prosecution will need the leave of the Court of Appeal before arraignment can take place. At the same time the accused will be able to apply to the court to have the order for a retrial set aside and an acquittal entered in its place. Leave to arraign may not be given unless the court is satisfied that the criteria laid down in Section 22(3) of the Prosecution of Offences Act 1985 are satisfied. Those are concerned with the extension by a court of a time limit under that Act and seemed to us the best precedent to follow. Thus the court may only permit arraignment after two months if it is satisfied that, first, the prosecution has acted with all due expedition; and secondly, that there is good and sufficient cause for a retrial in spite of the lapse of time since the court's original order was made.

The amendments I propose to Schedule 10 do two things. First, they provide that applications for leave to arraign or to have an acquittal entered can be heard by a single judge of the Court of Appeal. Secondly, they ensure that a defendant who succeeds in such an application can obtain his costs. The amendment to Schedule 11 is consequential.

Now that the equivalent courts in Scotland and Northern Ireland have wide powers to order a retrial, there is no good reason why the English Court of Appeal should be limited in its powers. The only limitation should be that a retrial is in the interests of justice. The court will be well aware of the risk of injustice if stale cases are retried and can be trusted to balance this against the injustice to society as a whole if a criminal escapes on a technicality. My proposal for a two-month time limit provides an extra safeguard for the accused in this respect and will ensure that retrials commence promptly.

This may be a convenient time to give the Committee notice that I hope to bring forward at a later stage amendments on documentary evidence at retrials. Part II of the Bill will permit a more widespread use of such evidence at trials. But if oral evidence was given at the first trial it seems to me that the same evidence should normally be given orally at any retrial. I shall table amendments to this effect for Report.

My present amendments are a useful and, some would say, long overdue reform. I hope I have convinced those Members who have proposed similar amendments of the merits of my own proposals and that they will now feel able to support my amendments and not press their own. I hope the Committee will also agree that my proposal should be accepted, and I beg to move.

Lord Campbell of Alloway

Perhaps I may support this amendment. The principle of it was reflected in my Amendment No. 66 the first time around. At Second Reading I put down a marker for tabling that amendment, and the principle had the support of the noble and learned Lords, Lords Lane, Lord Ackner, Lord Denning and Lord Roskill. On the second occasion it had the support of the noble and learned Lord, Lord Ackner.

Having spoken to it at Second Reading the second time around, I retabled Amendment No. 66, which had the support of the noble and learned Lords on the Cross-Benches. It appeared as Amendment No. 45 on the first Marshalled List. I have withdrawn that in favour of the government amendment, and I am grateful to my noble friend the Minister for having accepted the principle. I congratulate the Government on the form of the draftsmanship.

The power to order a retrial by reason of fresh evidence is not affected. I wonder whether my noble friends would be quieter.

I am deaf in one ear, and my radar system is jammed if conversations continue on the Benches below. The power to order a retrial by reason of fresh evidence is not affected, but, where a conviction is quashed under the clause proposed by this amendment, fresh evidence could be taken into account as affecting the interests of justice.

As I understand it, the new indictment on retrial could include counts upon which the accused had not been charged; counts on which he had been arraigned and to which he had pleaded, not to be proceeded with until further order; or counts identical with, or similar to, those charged in the first indictment on which the accused was convicted. In quashing the conviction and authorising a new trial it would be open to the Court of Appeal, if so advised, to limit by direction, as I understand it, the scope of the second indictment by giving ancillary directions to such effect.

In support of the principle of this amendment, albeit in the form in which it was tabled in my name the first time around, the noble and learned Lord, Lord Lane, commended the idea to your Lordships, observing in terms that the provisos of Section 2(1) of the Criminal Appeal Act were inadequate in many cases and that the present situation was not satisfactory. This amendment was also commended in terms by the noble and learned Lord, Lord Roskill, whom I am delighted to see in his place. He asked why a defendant against whom there was really strong evidence and who was plainly rightly convicted should escape simply because the judge had made a mistake.

It is late and I shall merely conclude by pointing to the fact that the principle of this amendment, and the principle for which I have always contended, is accepted in Scotland, in Northern Ireland and in many countries of the Commonwealth. I hope that the Committee will accept the amendment.

8.45 p.m.

Lord Ackner

The last occasion on which this matter was considered in Parliament was in 1964. Lord Reid introduced an amendment in Committee. The amendment was defeated by 55 votes to 54. The Lord Chief Justice, Lord Parker. although in favour, voted against the amendment because the Queen's Bench Judges were split 16 to 14. Lord Denning, who was in favour and gave evidence to that effect in the Tucker Committee, was not then provided by our generous Treasury with a car, and, as the division took place not long after 4.30, I know from bitter experience that he might still have been sitting.

The Criminal law team of the Law Commission prepared this paper. It has been distributed to the judges who deal with criminal matters, some 33 of them. They have all replied in favour of the power being extended. As the Committee has heard, the limited powers of the Court of Appeal, Criminal Division are now unique in the common law world, which places a pretty heavy onus, I would suggest, on those who wish to retain the present situation. It causes problems nowadays in a number of respects, but one respect in particular. It is very sensible for counsel for the defence who wishes to save time, or even achieve a tactical manoeuvre, to get the judge's ruling on a point of law or on the admissibility of evidence before he has to call his evidence. Having got an unfavourable ruling he then changes his plea to one of guilty and, as he is entitled to, promptly goes to the Court of Appeal, Criminal Division. When it is decided that the judge gave a wrong ruling, all that the Court of Appeal is left with is the prospect of using the proviso, which means that it can dismiss the appeal if it is satisfied that a jury, properly directed with the extra material would inevitably have convicted. However, it cannot reach that conclusion if the defendant has never called any evidence. The net result is that appeals are being allowed in a situation in which that should not occur.

In a debate which took place as far back as 21 years ago before Scotland and Ireland were given such powers, the late Lord Reid said: Why cannot we look at the experience in other Commonwealth countries? Throughout the greater part of the Commonwealth English law applies and the habits. methods and atmosphere in legal circles are very much like our own … I should think that we are fairly safe to look at experience in those Commonwealth countries with a view to learning from it". In the same debate the late Lord Simonds said that as the law stood at the time a man convicted of one crime, appealing on the ground that there was fresh evidence available, would be entitled, if the Court of Appeal thought fit, to a new trial. In such a case the so-called fundamental rule that a man was not to be put in peril twice was forgotten altogether. If the same man, convicted, appealed on the ground that the evidence had been wrongly admitted or wrongly rejected, the Court of Appeal could do nothing. It might not order a new trial because, so it was said, that would be to put him in peril twice. Lord Simonds then asked the rhetorical question: "Could there be greater nonsense than that?"

As regards the issue of double jeopardy, I should like to remind the Committee that we are not dealing with anything other than a conviction. The accused has been convicted, not acquitted. In fact, the second trial gives him the opportunity of securing an acquittal. However, every time a jury disagrees, not only is the prosecution entitled to prosecute the accused again, but no one can stop the prosecution from doing so.

Perhaps I may offer the Committee one final quotation from 21 years ago, which is way out of date. It is from a report in Justice shortly before 1964. The excerpt reads: The Courts hearing criminal appeals in Australia, Canada and New Zealand all have the power to order a new trial. Lawyers in these commonwealth countries have been consulted and the substance of what they say is that the Bar accept that the power to order a new trial is desirable and beneficial, that it works well and that their experience gives no ground for thinking that the fears which have been expressed about it in England are valid". To those who would resist this amendment I commend the words of wisdom in Francis Bacon: "They are ill discoverers that think there is no land when they can see nothing but the sea".

Lord Renton

After that fascinating description of the history and principles underlying this amendment, the Committee will not expect to hear much from me—at least I hope that it will not. Perhaps I may say that I also support the principle of this new clause.

As my noble friend Lord Campbell of Alloway has said, the amendment is properly drafted. It has been done by the method of textual amendment, which was the right way to do it, but I must say that from the point of view of legislators, especially those of us who have not had any experience of work in the criminal courts, it would have been helpful to have had it presented in a slightly different way. I am not blaming my noble and learned friend Lord Caithness personally—

The Earl of Caithness

I am certainly not learned.

Lord Renton

I am sorry—not yet; I meant my noble friend Lord Caithness. I am blaming the system. If this matter had been in the Bill as presented to us at Second Reading, no doubt there would have been an explanation of the effect of this new clause in the explanatory memorandum. However, we do not have that advantage. We could have been shown the matter exactly as it affects the Criminal Appeal Act 1968, or at any rate Sections 7 and 8 of that Act, if what is called a Keeling schedule had been used.

A Keeling schedule sets out the law which it is sought to amend and shows the amendments in italics so that it is possible for the legislators in either Chamber to see exactly what their effect will be. We do not have that advantage either. I mention that point because on an occasion such as this I think it would be most helpful were those who prepare these amendments for the Government to bear in mind that it would save a lot of trouble in understanding and some trouble in research if there could be some kind of explanatory memorandum or a Keeling schedule. Having said that, I welcome the amendment.

Lord Morton of Shuna

It is with considerable diffidence that a Scottish lawyer gets up at this point from these Benches. However, having heard the references to the late Lord Reid and the Scottish position, I should like first of all to say that I wholly support the remarks of the noble Lord, Lord Renton. I should like to pray in aid the amendment to the Scottish legislation which was carried through by the then Lord Advocate (who may have a further influence on the Government) the noble and learned Lord, Lord Mackay of Clashfern, in the 1980 Criminal Justice (Scotland) Act, because the amendments which are now Sections 254 and 255 of the Criminal Procedure (Scotland) Act 1975 were brought in as complete clauses replacing the old sections, thus giving Parliament a full picture of what was being achieved.

I wholly agree with the noble Lord, Lord Renton, that it is very much easier to follow amendments if one has the advantage of everything in one document. That having been said, this side of the Committee accepts the principle of the amendment, which appears to follow the Scottish and other Commonwealth provisions in allowing appeals, for example, where something has gone wrong or where there has been a misdirection.

Perhaps I may say that it appears to me from the Scottish position—and these provisions have only been in force since 1980—that the system works in favour of the individual who may have been convicted with a misdirection. If this provision did not exist, the Court of Appeal might be tempted to say that there had been no substantial miscarriage of justice. Under the new provision they are enabled to say, "We are not sure whether or not there has been a miscarriage of justice in total and therefore we shall allow a new trial". That seems to me to be of considerable benefit for the freedom of the individual, and therefore we support these proposals.

Lord Ackner

Perhaps the Committee will allow me to intervene again for a short moment. It is some time since I have been a "devil" and I have overlooked some specific instructions that the Chief Justice asked me to bring to Members' attention. There is a technical point involved under Schedule 10. It is provided that the "single" judge (and that is not a reference to his marital status but merely denotes that he is acting on his own behalf) should have power to exercise the decision under subsection (4)(1A) or (4)(1B), which is to set aside the order for retrial and direct the court of a trial to enter judgment and verdict. My request from the Chief Justice was to say that this is a matter which is looked upon as being of such importance as to justify the full court of three judges and that it should not be dealt with by a single judge. It is a nuts and bolts matter, but I thought, particularly in view of the sustained harmony, that I had better mention it now.

Lord Roskill

I just add, as my noble friend Lord Campbell of Alloway mentioned what I had said on Second Reading, that I wholeheartedly support this amendment. Those of us who have either been reversed on a technicality or who have had to reverse other people on a technicality have long regretted that we have not had this power. I respectfully agree with what the noble Lord, Lord Morton of Shuna, said a moment ago. This power has existed for some years in Scotland and I have always understood that it has existed with great satisfaction. It will fill a gap which has long needed filling.

I respectfully echo what the noble Lord, Lord Renton, said and indeed also what was said by the noble Lord, Lord Morton, a few moments ago. As we were discussing earlier this afternoon the various amendments to the Magistrates' Courts Act the thought occurred to me as an ex-chairman of the Consolidation Committee what a frightful shambles the various statutes could be in at the end of this Bill unless something is done to evolve a single legislative pattern right through. The point made by the noble Lord, Lord Renton, is reinforced by the amendments which are now being proposed, and which are likely to succeed to the Criminal Appeal Acts of 1966 and 1968. It is necessary that these should be in a coherent form in this statute or, if it cannot be done in this statute, in some consolidation Act which could come very shortly afterwards so that there will not be any doubt in connection with the Magistrates' Courts Act, this Bill or any of the other innumerable Acts which are going to be affected by this Bill when it becomes an Act as to what the law is. If it is not done chaos may result.

9 p.m.

Lord Renton

I should like to make one more point, which is that this removes what is an anomaly in the law. Seeing the noble and learned Lord, Lord Ackner, there, I can best illustrate this by the fact that a case which I threw out at the conclusion of the prosecution case at quarter sessions was taken to the divisional court, over which at the time the noble and learned Lord was presiding; and the divisional court criticised me for throwing it out and ordered that the justices should carry out a new trial. So this can already be done at the lower level and it is absurd that it should not be done at the proper level.

Lord Hutchinson of Lullington

I ventured to say on a previous occasion that the noble and learned Lord, Lord Ackner, was very well qualified to be a shop steward for the Lords of Appeal in Ordinary and I see from tonight's contribution that I was not far wrong.

Lord Ackner

Just to assist my friend, he may be happy to know that I appeared before the Top Salaries Review Body on their behalf last Friday. I confirm my prophetic voice.

Lord Hutchinson of Lullington

To the disappointment, I am sure, of the noble and learned Lord, in general, after a great deal of doubt, I would not be opposed to this amendment. I have taken due notice of what happens in the Commonwealth and perhaps I might take the opportunity to put the Minister right. In the previous amendment to which he referred I certainly made no attack upon the legal systems of the Commonwealth. What I was attacking was the idea of the prosecutor taking a part in the sentencing process, as is done in many continental legal systems. It was that to which I was referring and not to the systems of the Commonwealth.

Having said that, my doubts about this amendment arose because so often Parliament gives the court powers which are then operated quite differently from the manner envisaged when the power was bestowed. Section 7 of the Act is itself an example of this. It is quite clear, looking back on the debates in 1968, that what was intended was that, if fresh evidence came to light and the court was satisfied on the face of it that the evidence was capable of belief and if the original jury might well not have convicted if they had heard it, there should be a new trial. In other words, the accused should be retried by the only tribunal constitutionally empowered to do so, which is the jury.

In fact the Court of Appeal came to interpret the section completely differently, and, as the court had to allow the appeal first of all by reason of the new evidence, the court took it upon itself to assess the evidence and to decide whether it would cause it to be unsure and to find the verdict unsafe or unsatisfactory. If it found it unconvincing then it dismissed the appeal and there could be no retrial. It was this usurpation of the jury's role that caused the noble and learned Lord, Lord Devlin, and many others to protest at the dismissal of the appeal in the case of Cooper and Mahon.

That is why I have doubts about this amendment. I am nervous that this power will be used when there have been real misdirections by the judge and errors by the trial judge in cases where juries have convicted and the defendant has suffered months of imprisonment and trauma through no fault whatever of his. If the judge had ruled certain evidence inadmissible at the trial or had given the proper direction in law, the accused would have been acquitted in all probability.

It is in those cases that it would be quite intolerable if the accused person had to go through the whole trial again. A return of a trial is a tremendous handicap to any accused person, when of course witnesses trim their evidence to fit in with the case which is presented at the first trial. Often of course there can be the greatest prejudice when someone is tried for the second time. One has only to think of Winston Silcot in the Blakelock murder case when, as your Lordships will remember, it came out that he had a previous conviction for murder. It would be absolutely impossible in a case such as that to have a retrial.

So there are problems and I am nervous that instead of appeals being allowed, as they are now, if a judge simply goes off the rails and gives a wrong direction or allows evidence in which he ought not to allow in, the Court of Appeal may say, "This fellow has 20 previous convictions: he had better go back and be tried again because we cannot possibly allow the appeal".

Therefore, I hope that the court will achieve a real balance between the interests of the public and the interests of the accused and that they very quickly will develop principles on which the court will act. The experience in Northern Ireland and in Scotland is certainly encouraging because there the power seems to have been only used very rarely.

The only other matter that I should like to raise is the matter of the proviso which was mentioned earlier—that the appeal can be dismissed if no miscarriage of justice has actually occurred. I think that everybody who has had experience of the Court of Appeal (Criminal Division) would agree that the proviso is applied in a not really very satisfactory way. There does not seem to be a very strong principle on which it is applied. Perhaps the Court of Appeal will find it possible, if this becomes part of the law, to make a stricter and more consistent use of the section which deals with the proviso. I think that the two things rather go together, and I sincerely hope that that may be achieved.

Lord Wigoder

When the moment arrives when it begins to look as though my noble friend Lord Hutchinson is in agreement with the noble and learned Lords, Lord Ackner and Lord Roskill, perhaps the time has come to put the Question fairly hastily. I would not want to defer that issue for more than a moment.

I support this amendment because overall, I believe it to he in the interests of justice. By the interests of justice I do not mean simply the interests of the prosecution. I believe that at present there are cases where the Court of Appeal is placed in a dilemma. It may have to decide whether to quash a conviction or whether to apply the proviso; with some hesitation it applies the proviso and the conviction stands because the Court of Appeal does not have the power to order a new trial. I think that in the long-run if the court does have this power in this amendment to order a new trial it may be that in future the occasional innocent person will not be convicted; his conviction will not be sustained in the Court of Appeal; he will be retried; and in due course he will be acquitted. For that reason I believe that this amendment would be a step forward.

The Earl of Caithness

I have been much encouraged by the wide measure of support which this debate has uncovered for our proposal. I had hoped that I would have the full support of the noble Lord, Lord Hutchinson of Lullington. Having supported my noble friend Lord Campbell of Alloway and then my noble friend Lord Boyd-Carpenter, I had thought that I would get lucky the third time and that the noble Lord would support me. But we are getting closer.

I agree wholeheartedly that change along these lines to bring this into line with other common law systems, including those in these islands, is long overdue. Of couse I take due note of the comments of my noble friend Lord Renton on the presentation of the amendments. He was strongly supported by the noble Lord, Lord Morton of Shuna, and the noble and learned Lord, Lord Roskill.

However, this could not be included in the Bill as introduced because our consultations were still going on. I have sought to explain their purpose as fully as I can in moving them this evening. Nevertheless, I do understand my noble friend's point and I shall convey it to those concerned. I also take the point that the noble and learned Lord, Lord Ackner, asked me to look into, on behalf of the noble and learned Lord, the Lord Chief Justice. Perhaps I can do that between now and another stage. With that happy degree of unanimity within the Committee, I beg to move.

On Question, amendment agreed to.

9.15 p.m.

Viscount Mountgarret moved Amendment No. 48: Insert the following new clause:

("Rendering impotent.

Penalties for rape, murder and certain other crimes.

.—Where a man is convicted of an offence under section I of the Sexual Offences Act 1956 committed after a previous conviction under that same section, the Court may sentence him to he rendered impotent by whatever means and in such circumstances as the Secretary of State shall determine and this sentence may he the only sentence imposed or in addition to any other sentence which the Court has power to impose.").

The noble Viscount said: I just wonder whether it may be the wish of the Committee that, in view of the fact that our ranks are somewhat thinned by the lateness of the hour and that it may not he possible for us to give the proper measure of consideration, and, indeed, not appropriate to make decisions upon any or all of the amendments standing in my name at this late hour, we adjourn to another day. I should like some guidance on this before we start.

The Earl of Caithness

As I understand it, the rule of the Committee is that, as the amendment is in the name of my noble friend, it is up to him whether or not he moves it. I would certainly oppose an adjournment of the Committee at this stage.

Viscount Mountgarret

I thank my noble friend. I just wanted clarification on that point. Perhaps I may, with leave of the Committee speak to Amendments Nos. 49, 50, 51 and 286, the last of which is consequential upon the other amendments, because if any or all of these are passed, then No. 286 comes into play.

I should like to make some general observations which are relevant to all these amendments and which will save repetition time and time again. It has been put to me in recent days that it could be regarded as inappropriate that our House should seek to write amendments of this sort into this Bill, as it would be more appropriate for another place to have the chance to discuss them beforehand, and that if we were to write such provisions into this Bill it might put us in an awkward position if another place felt that it was unable to agree. I thought about this very carefully and I do not think there should be any concern at all in this direction.

The Bill has started in this House and therefore we have been asked not to revise legislation but to instigate it. Therefore it is only right and proper that, if we want to write in something new, we should do so. But having said that, I think that any of these provisions must be approved by both Houses, not with one House under duress, as it were, because the two Houses do not want to argue with each other. It is important and desirable that it is perfectly clear that, if any of these provisions got off the ground, it was the wish independently of both Houses.

I do not want anyone to run away with the idea that I am a hard person or do not have any sympathy for felons or miscreants. That could not be further from the truth. I have a considerable amount of sympathy for them and for the reasons why they are driven to crime. Too often, it is because of the lives that they are unfortunately obliged to lead with a lot of unemployment, a lot of poverty in many places, broken homes, parental control very often being absent by virtue of the fact that it is necessary for both parents to go out to work, and so on. Unfortunately this leads to petty crime to start with and, if they get away with it, to serious crime. I sympathise with and understand the social problems related to violent crime.

However, having said that, I honestly do not believe, and I do not believe that a great number in this country believe, that the soft treatment of determined and dangerous felons, such as we have tried in the past out of humanity, Christianity, moral feelings and so on, has worked. It has not worked. It has failed. They have pretty dramatic punishments in the Middle East. For instance, you can get your right hand cut off if you steal. But I do not think there are many left-handed people walking about in Baghdad or in Saudi Arabia. It jolly well works. People know that if they put their hand into the fire it will get burnt. It is as simple as that. It is no good saying "Try it and see." It works. Therefore it must be right to have effective punishment available for use on people who are not going to abide by the laws of the land.

I am not a lawyer and never will be a lawyer. I am not half intelligent enough. But I believe that so many things in life are done not so much by knowledge and fear as by basic common sense. Common sense amounts to 80 per cent. of our way of life. We approach problems in a common sense way rather than through theoretical or professional knowledge. The two must go together but nine times out of 10 common sense does, or should, prevail.

We have a duty in our society to protect the members of our society against the felons and the perpetrators of crime. All too often, it appears, on the face of it, that we are more concerned with the effect on the perpetrators of violent crime than with either the victims or, worse still, the potential victims. That one should consider very carefully indeed.

We are told by the crime prevention department that the ethos of their policy is to encourage the public into policing itself. It is, in their own words, the only way forward. What on earth do they mean by that? I think that we have to look at the relevance in the supplement to the Sunday Telegraph and it will tell you. I find that horrifying. There was a man who defended himself with his sword against a break-in or perhaps an attempted murder. He succeeded. He inflicted bodily injury upon the perpetrator of the crime. However, it was not the person who broke in and threatened to assault him who carried the rap; it was the man who was defending himself with his sword. I stand open to correction on this point, but I believe that the man asked in court what else he could have done. He said that society had let him down. He said: "I am told to defend myself. What can I do?"

We have all heard of such cases. I shall tell the Committee of one more such case. There was a case of a man who owned a pistol who heard a burglar breaking into his neighbour's house. His neighbour had asked him to keep an eye on the property as he was going away on holiday for a fortnight. One night there was a break-in at the next door house. The chap came out. He saw the fellow coming out of the window through which he had broken into the house and he ran across the lawn. He got hold of his pistol and said: "Stop or I'll shoot!" The burglar did not stop so he did shoot. He did not shoot at the burglar. He shot wide of him but unfortunately the bullet hit a stone, ricochetted 10 to 15 yards off the stone and hit the burglar in the thigh. I am not sure what the neighbour is doing at the moment. He may have received a gaol sentence, but he certainly carried the rap for that. I find that case absolutely offensive. It is not right and it is time that that kind of thing was corrected. As Gilbert said: "Let the punishment fit the crime." And so we must.

Overcrowded prisons have been a source of concern here on several occasions, and quite rightly so. It is perfectly deplorable to have three or four or however many it is to a cell. But how many people need to go to prison? Far too many people get sent to prison when it does them no good at all. We send people to prison, it is hoped. to correct them, but what on earth is the point of sending a man to prison for 10 years or so when he will just have a gut reaction against the society that sent him there? Look at the crime that he may have committed. Here I must choose my words rather carefully because I do not wish to appear to be criticising in any way a prison sentence that has recently been meted out. However, the case that I have in mind is relevant and it may illustrate the point I am trying to make. Last week a well-known person was sent to prison for evasion of tax, notwithstanding the fact that the tax had been repaid. I asked myself then what on earth anybody had achieved by that. Yes indeed the person concerned had transgressed the law, and yes indeed punishment must be firmly meted out. But what is the point of sending that person to prison?

If the person concerned had the means and the wherewithal which we are given to understand he had to pay a very substantial fine—and I mean by substantial a couple of million pounds—then why not impose that fine? The taxpayer of this country would not then have the burden of keeping a person in prison. The Exchequer would benefit by a very substantial amount of money and the person concerned could continue to provide the expertise and knowledge of his experience in the industry in which he is particularly well versed. On that basis everybody would gain. What has happened? Everybody has lost. I am therefore saying that we are wrong to overcrowd prisons by sending people to prison when there are other ways proverbially of killing the cow. We must mete out a punishment to fit the crime.

I wish to make it quite clear that I understand that when terrible things happen such as the Hungerford and Bristol massacres some of us tend to get rather carried away with emotion and say: "Right. We must do this, that and the other. We must bring back hanging." However, I tabled these amendments long before those events. They reflect what has always been my personal conviction.

I have received many letters from a cross-section of all manner of people in the country since tabling the amendments. I have them in the Lobby. Not one of those letters suggests that any of the proposals under discussion is anything but correct. I am surprised at that. I should have expected one or two to have something to say, but not one has. The letters came from prison doctors, clerks to magistrates' courts and all manner of other people—a good cross-section of the community. They all said the same: "Get on with it, we must get something done, we cannot go on like this."

It is wrong that Parliament as a whole appears to continue to turn a deaf ear to what is known to be the opinion of the vast majority. In relation to the death penalty, I understand that the figure is about 73 per cent. That said, it would indeed be wrong for Parliament as a whole in carrying out is duty to pay attention entirely to what the majority of people wish. One cannot very well elect a committee of a club and then expect the members of the club always to dictate to the committee how to run the club's affairs. The committee members are elected to get on with it. However, there are times when those who run the affairs of the club, as it were, should take heed of what is a very large undercurrent of opinion.

The House of Lords fortunately enjoys an enormous amount of support and respect in the country, which I believe could be somewhat dented if we were to fail to take note of the strong feeling of the majority of people in the country.

I am told—I will be corrected by noble and learned Lords—that these measures will have an effect on the jury system and that no jury would convict. I cannot agree with that. The word "may", not "shall", is used in the amendments. This is not mandatory; it is up to the judge to decide. Secondly, several procedures must be gone through once a conviction has been obtained and the jury has convicted. There is the appeal stage and ultimately, in consideration of the death penalty, an appeal to the Home Secretary and the royal pardon. I do not understand why a jury should fail to convict if it felt that a very severe punishment was to be meted out. If defence counsel, realising that too many people in the jury were quite willing to see the accused on conviction suffer the ultimate, started to use the privilege and right to object to certain jurymen sitting, that in effect would be an abuse of the privilege granted to the defence. If privileges are to be abused for purely cosmetic purposes, that would raise the wider question whether the right and privilege should be retained. I do not see why the jury system should be affected.

I am told that we are signatories to the European Convention on Human Rights, the provisions and terms of which some of the amendments may transgress. If that is the case, so be it. The European Court of Human Rights was established in about 1947, shortly after the war. I am given to understand that the object was to ensure that a holocaust such as that experienced at the hands of Nazi Germany could and should never happen again, and rightly so. However, like so many of these things it has been used as a vehicle for complaint by nearly all and sundry who feel that they have had a physical or mental injury done to them. That in itself tends to diminish the whole value of the European Court of Human Rights if that is what has happened.

We are a sovereign nation. We are a signatory to that convention. If we are not allowed to maintain law and order as we think fit, then we cannot continue to be members of that convention. I am sorry, but it is a fact. I do not see why this country should be run by people in another country. I am an Englishman; I am not a European and I think that goes for a great number of other people.

That is just a few general observations and perhaps we can turn specifically to Amendment No. 48, which concerns rendering people impotent. We have far too many cases of rape in the country, as we all know. Unfortunately, there have been times when offenders have been sent to prison and that in itself is absolutely right. They have served their time and upon the decision of the doctor or the professional concerned he is considered a fit person to leave prison and to lead a new life. I would agree with that entirely and I hope very much that it corrects him.

The fact is that there have been many occasions when this offence has happened again. If a man has been punished once for this heinous offence and served the sentence in full and then he is released and commits the offence again, perfectly obviously it is not much use meting out the same punishment as before, because it is not going to work.

There is only one way of making sure that a rapist does not do it again and that is to make him incapable of doing so. Originally, I had in mind that we might set off down the route of castration but since then I have read with great interest a recent case where the Recorder of London ordered a man who had been convicted of such a crime—I think at that man's request—to have an injection of a drug which had been developed by ICI. The substance is really for the curing of cancer or some form of cancer. The knock-on or side effect of the drug is to render the user incapable of committing that sort of offence. If that is a fact, then it is not impossible for our scientists to produce a substance which would have the effect of making a potential rapist pretty safe. That is the sole purpose of this amendment.

Again the word is "may". It is not mandatory. It is for the judge to consider whether it should be imposed for a repeated offence. I think that is perfectly fair. Do it once, right, but the second time you get the ultimate. This must be right.

I am told that psychiatrists have suggested that if a person who is inclined that way is rendered impotent it might turn him into something worse, such as a murderer. If that is the case then I think I speak for a lot of ladies in the land in saying that I would far rather walk into a field of steers than a field of bulls. On that remark I beg leave to move the amendment.

9.30 p.m.

Lord Elwyn-Jones

We on this side of the Committee reject all the noble Viscount's proposals, and we do not intend to dignify them by any further discussion.

Lord Wigoder

We on these Benches also reject these proposals. On Amendment No. 48, I confess myself in some doubt as to whether, if the power were given to a court compulsorily to castrate an offender, that would be entirely consistent with the right to silence.

Lord Boyd-Carpenter

I do not think any Members of the Committee, as I understand it, go along with my noble friend Lord Mountgarret on the general detail of his four amendments. However, as Amendment No. 49 raises—perhaps not in quite the right form—the question of capital punishment, I should like to address a few words under that amendment. I confess to being a wholly unrepentant believer in capital punishment for murder. I suppose I am affected, as we all are, by our experiences. I had the responsibility towards the end of the war, at a military government court in Italy, of imposing capital punishment in cases where I was responsible both for the finding of guilt and for the decision on sentence, subject only to the confirmation of the army commander; which, as a matter of history, was never withheld. I therefore speak on a subject of which I have had some direct experience.

Equally, it so happens that in 1969 I wound up in another place for those who wished to retain capital punishment when the experimental period was terminated and capital punishment was finally abolished. Some members of the Committee may say that the fact that I wound up for retention may be a partial explanation for that decision! However, on that occasion we took with us into the Lobby the greater part of the Conservative Party in the House, which then of course was in the minority. Although we did not take into the Lobby its then Leader, I am glad to recall that we did take with us our present Leader, and our present Prime Minister.

I have one complaint arising from that debate. We were then told, as we were told regularly at that time, that the alternative on conviction for murder was going to be life imprisonment. It was argued with some plausibility that true life imprisonment—being detained in prison until one dies—is in a way as formidable a penalty as is execution. However, life imprisonment no longer means what is says. My noble friend the Minister can no doubt give us figures. However, figures that have already been given make it clear that unless someone sentenced to life imprisonment dies fairly young from natural causes he rarely serves his life in prison. Such people are almost certainly released either on the advice of the Parole Board or otherwise before their lives have ended. Therefore, what were told at that time was the effective alternative deterrent to execution—true life imprisonment—has not been, and is not, being generally applied.

That takes one to the question of whether capital punishment is a real and effective deterrent. It is perhaps significant that in Singapore and Malaysia, where their governments and parliaments have been deeply troubled by the drug traffic and where, in both cases, resolute and determined governments have set upon wiping it out, capital punishment for drug trafficking is part of the law of both states and the sentences are often carried out. Experience seems to suggest that the deterrent effect is working.

We come therefore to the question whether in our country we can give greater protection to the lives of innocent people by reintroducing capital punishment as a penalty for murder. I recall the days when I was in practice at the Bar before the war, when capital punishment was of course law, that I defended a young man who was a member of a violent gang of burglars. I learnt that the prosecution intended to introduce in cross-examination a suggestion that they had been armed. I thought it my duty to see in the cells my young client and to ask him whether that was so. He showed genuine horror. He said, "Lor, guv'nor, no. If I had a gun which went off and killed somebody, I would swing for it wouldn't I?". I confirmed to him that his view of the law was correct.

It is indeed significant that one who was a member of a gang set on involving itself in serious crime and risking therefore long terms of imprisonment was deterred from carrying a gun by the knowledge that if he carried one and it went off, he would incur a penalty quite different from and from his point of view far more alarming and disturbing than even a long term of imprisonment.

I suggest that capital punishment, properly applied as a penalty for the crime of murder, is a deterrent, and that if it were restored it would protect some innocent lives. No one of course can say how many people would be deterred and what effect it would have on the murder rate, but that it would have some effect and thereby protect at any rate some innocent people, seems difficult to dispute.

Given therefore that we have a serious level of violent crime, including murder and other crimes which lead to murder, as in the Fordingbridge case, it surely is a matter for consideration whether we should not restore capital punishment in appropriate cases.

To those of the Committee who use, and I am sure that no one in this place does, the silly phrase, "You cannot put back the clock", I should reply that practically all of us did so on Sunday morning. Of course we can reverse a decision if it was a mistake. That has been done in this context in certain states in the United States which abolished capital punishment and because they judged that the effect of that had been harmful to the safety of their citizens restored it. Even if the Government were convinced that this was right, and from what I have said there are at any rate some members of the Government who I am sure believe that it would be, the problem would be to legislate it through this place and still more perhaps through another place.

I would therefore say in all seriousness that if ever there were a case for a referendum this is the subject matter. I am not a great admirer of referenda. I think that on the whole they undermine the parliamentary process and parliamentary authority. This subject has always been treated in another place as a matter of individual conscience on which the Whips are not put and therefore each individual Member must vote according to his conscience. That perhaps distinguishes it from other matters more appropriately dealt with by Parliament and suggests that it might be interesting and helpful to take the views of our fellow countrymen. It is a matter after all that concerns the community as a whole and if, as may well be the case, a referendum established that a majority of our fellow countrymen—

Lord Tordoff

May I—

Lord Boyd-Carpenter

I am in the middle of a sentence.—wished to restore capital punishment to the statute book, then that would be a matter for Parliament to consider. Does the noble Lord wish to intervene?

9.45 p.m.

Lord Tordoff

I wonder where within the amendments that we are considering the question of a referendum is referred to. I do not recall the noble Lord at Second Reading raising this matter although he may have done so. If he wishes to put down an amendment on referenda he is at liberty to do so.

Lord Boyd-Carpenter

I am most grateful to the noble Lord for that kind permission. I invite his attention to the fact that the second amendment, Amendment No. 49, put forward by the noble Viscount, Lord Mountgarret, proposes the restoration of capital punishment. In discussing whether we wish it to be restored, it is surely highly relevant to consider the conditions, the mechanism, the way in which that would be done. I am surprised that someone on the Liberal Benches—who is almost always frightfully keen on referenda and so on—gets so very tetchy about it when it is suggested on this subject.

Baroness Seear

We are not keen on referenda. The only referenda we have supported are on constitutional matters. This is not a constitutional matter.

Lord Boyd-Carpenter

No. This is probably not a constitutional matter. As the noble Baroness knows, it is a matter which when it has been discussed in another place, and no doubt here, it has been said that it is outwith the normal run of party political, Government and Opposition, discussion and a matter of individual conscience for Members. That distinguishes it from almost every other subject. I am surprised at the touchiness of the Liberal Benches on this. It is surely highly relevant to consider on what conditions it might be looked into further.

I suggest that it might help the conscience of individual Members of another place if they knew, firmly and authoritatively, what the views of our fellow countrymen were; whether our people as a whole—the electorate whom Parliament represents—did or did not wish us to see a restoration of capital punishment. I cannot see for the life of me why those who believe in democracy, who believe that the will of the people should prevail, should get so very excited when it is suggested that, admittedly in a matter outwith the ordinary party political framework, this should not be done.

Lord Tordoff

May I—

Lord Boyd-Carpenter

I shall not give way again because the intervention of the noble Lord on the previous occasion was not very constructive as, when he studies Hansard in the morning, he will no doubt reflect.

I have made the point. I still strongly take the view that this is a matter on which there should be a referendum. I am glad that my noble friend Lord Mountgarret has not adopted the phrase, so often loosely used, of the restoration of hanging. Hanging was a barbarous method of execution and I believe had a good deal to do with the success of the abolitionists because people were understandably horrified and disgusted by the method. My noble friend suggests an injection in his amendment. I do not think that there could be much difficulty in finding a method that would be painless and would not have the unpleasant and squalid concomitants that undoubtedly helped to prejudice hanging.

As I tried to tell your Lordships, on the basis of at least a little experience, I hold some strong views on this subject. Although it is perfectly easy to shoot down most of my noble friend's amendments—and I certainly do not go along with a great many of the proposals as they stand—I thought it right to take this opportunity to put on record my view that we shall not deal with this aspect of serious crime until we restore capital punishment in one form or another, and to suggest that the step towards it should be the one which seems so to annoy theLiberal Party: that of holding a referendum to find out what the people want.

Lord Mishcon

I wonder whether the Committee will not agree that, before a serious Committee of Parliament, this is quite the wrong way in which to discuss the issue of capital punishment. This has been debated in the other place. So far as I remember it has been debated in this Chamber. There is a decision of Parliament. In my view to deal with a matter of this kind by way of an amendment to the Criminal Justice Bill is quite offensive to the common sense of the Committee. That is why I so profoundly agreed with my noble and learned friend Lord Elwyn-Jones when he said that we on this side—I had hoped that it was the universal view of the Committee—should reject these proposals in totality and that indeed they should not be dignified by any further debate.

Lord Boyd-Carpenter

It is very easy for the noble Lord, taking the view he does, to take that line. We are however discussing a criminal justice Bill, in the context of which our criminal law as such is under inquiry. I did not put down these amendments. Indeed I do not think that I would have done so, but my noble friend did. The issue is before us. I do not want to bore the Committee by repeating what I said a moment ago. It is an issue that a great many of our fellow countrymen believe to be a probable improvement to our criminal law and it seems to me quite wrong to say that the Upper House of Parliament should not debate it because the noble Lord, Lord Mishcon, does not like it. That is arrogating to the Opposition Front Bench a position to which they are not entitled.

Lord Monson

Unlike the noble Lords on the Opposition Benches, I do not automatically take a lofty, elitist, scornful view of these amendments. On the contrary, although I have many criticisms of detail I sympathise with the concern of the noble Viscount over these evil crimes and what is to be done about the growing incidence of them. This concern undoubtedly echoes majority opinion in the country. I do not think that anybody can seriously deny that.

Turning to the detail of Amendment No. 48—which is the amendment we are discussing as we have not yet come to Amendment No. 49 dealing with capital punishment—I have to point out to the noble Lord, at the risk of being somewhat basic, that to render a man impotent does not take away his sexual desire. If a potential rapist is rendered impotent and is therefore unable to achieve penetration, in his frustration he may very well murder the unfortunate woman, which is surely a far worse fate. For that reason I do not think that Amendment No. 48 can seriously be considered.

The Earl of Caithness

It is right for me to say at this stage that I fear I disagree with the noble Lord, Lord Mishcon, on his point. The death penalty was discussed in another place during the passage of the Criminal Justice Bill. If an amendment is down before the Committee it is only right and proper that we discuss it, whatever views we might hold about it.

My noble friend Lord Mountgarret has proposed a number of changes to the sentencing powers of the courts. Although he talked generally to all four of his amendments I understand that he moved only Amendment No. 48. My noble friend first proposes that convicted rapists should be rendered impotent at the discretion of the court in addition to or instead of any other penalty. I must first say that we all recognise that rape is a particularly evil crime which causes untold distress to the victims and their families. It is right that the perpetrators of these acts should be severely dealt with, but I cannnot agree that my noble friend has the right solution.

My noble friend recommends rendering impotent by means of what has become known as chemical castration. This is not a cure all for sexual offenders. Individual reactions to drugs vary and they are not universally reliable. They would not necessarily eliminate sexual desire or prevent further attacks by the offender. At worst it could make an offender even more dangerous by blocking the normal physical response to sexual desire, causing him anger and frustration. This could increase the risk of very violent assaults on women, as was mentioned by the noble Lord, Lord Monson. I am sure that that is something that my noble friend would not want. I am not convinced that we should encourage the medical profession to revert to a practice which I believe has been largely rejected, let alone go so far as to put it in statute.

The maximum penalty for rape is life imprisonment and it is for the judiciary to decide what penalty to impose within that maximum. The Court of Appeal has, however, given clear guidance to the lower courts that rape will normally call for a substantial prison term. Imprisonment cannot be a wholly satisfactory response to any crime but for these offences it seems to me to be inevitable. This does not mean that sexual offenders cannot receive appropriate medical treatment in prison. But, as I have said, antilibidinal drugs do not always work for various reasons and such treatment would not always be appropriate. That must be a decision for the medical profession, not for the courts. I hope that my noble friend will not press this amendment.

Viscount Mountgarret

I am grateful for comments made by my noble friend and by the noble Lord, Lord Monson. However, I deprecate the immediate response which my general remarks on the four amendments evoked from Members opposite. I do not think I have ever heard in this Chamber of amendments that have been properly tabled being virtually thrown out before they have even been spoken to properly in detail. Members opposite presumably are speaking on behalf of their party and they made it perfectly clear that they did not even wish to consider evidence of these matters. I find that an affront; I deeply regret it and indeed deeply resent it. I thought the noble Lord, Lord Wigoder, said much the same thing but I may not have picked it up quite so well. I think it is wrong not to consider these matters and I am grateful for the support given by my noble friend Lord Boyd-Carpenter in that respect. On the specific subject of Amendment No. 48, in view of what has been said, I beg leave to withdraw the amendment.

Noble Lords

No!

On Question, amendment negatived.

Viscount Mountgarret had given notice of his intention to move Amendment No. 49: After Clause 38, insert the following new clause:

("Sentence of death.

—(1) Where a person is convicted—

1. (a) of the murder of a police officer in the course of or for the purpose of resisting that officer, or of assisting or avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody; or
2. (b) of murder committed during detention in legal custody (including the murder of any other person so detained); or
3. (c) of murder in the course of or in furtherance of an offence under section 8, 9 or 10 of the Theft Act 1968; or
4. (d) or murder committed after a previous conviction for murder,

the sentence or judgment pronounced or awarded may be death.

(2) Sentence under subsection (1) above shall be carried out by the injection of a substance to be determined by a panel of persons appointed by the Secretary of State.").

The noble Viscount said: In view of the lateness of the hour—and my noble friend Lord Boyd-Carpenter has made considerable reference to this subject—it may be the wish of the Committee that I do not move the amendment at this stage. However, I wish to reserve my position when we come to Report stage and may wish to return to it then.

[Amendment No. 49 not moved.]

[Amendments Nos. 50 and 51 not moved.]

The Earl of Arran

I beg to move that the House be now resumed.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at one minute past ten o'clock.