Criminal Justice Bill [H.L.]

HL Deb 29 October 1987 vol 489 cc643-703

3.28 p.m.

The Minister of State, Home Office (The Earl of Caithness)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(The Earl of Caithness.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

The Chairman of Committees

The first amendment I have to call is Amendment No. 67, which does not appear on the Marshalled List but is printed separately.

Lord Hunt moved Amendment No. 67: After Clause 44, insert the following new clause:

("Supervised release scheme.

—(1) Subject to subsection (2) below, a person who after the commencement of this Act is sentenced to a term of imprisonment of less than 3 years shall be released on a supervised release licence when he has served one third of his sentence or one month, whichever is the longer; or such later date as may be necessary to take account of any forfeiture of remission.

(2) Where a court considers that it is necessary for the protection of the public, it may order that an offender who is sentenced to a term of imprisonment of less than three years shall not be released on a supervised release licence under subsection (1) above.

(3) A person subject to a supervised release licence—

1. (a) shall be under the supervison of a probation officer, and
2. (b) shall comply with such requirements, if any, as the Secretary of State may specify in this licence.

(4) For the purpose of this section consecutive and concurrent terms of imprisonment shall be treated as a single term.

(5) A person whose sentence is reduced by the operation of section 67 of the Criminal Justice Act 1967 (reduction of sentence of imprisonment by reference to periods spent in custody on remand) shall for the purpose of this section be treated as if any period taken into account under that section were included in his sentence.

(6) A person shall remain subject to a supervised release licence until he has served two-thirds of his sentence, with the addition of any period for which he may have forfeited remission unless the licence is revoked under subsection (7) below.

(7) A person subject to a supervised release licence who fails without reasonable excuse to comply with a requirement imposed under subsection (3)(b) above shall be guilty of an offence and liable on summary conviction to—

1. (a) a fine not exceeding £200.
2. (b) a sentence of imprisonment not exceeding 30 days.

(8) Where a person subject to a supervised release licence commits an offence punishable with imprisonment, a court may order his return to custody for a period not exceeding—

1. (a) the outstanding period for which the supervised release licence would otherwise be in force, or
2. (b) 30 days,

whichever is the longer.").

The noble Lord said: In rising to move Amendment No. 67, I should like to express my sense of relief that it has been called at the beginning of today's business, instead of being called at about 10 p.m. at the end of Tuesday night's business when for unavoidable reasons I had to leave the Committee.

This is an amendment to which the All-Party Penal Affairs Group attaches great importance. I am fortunate to be moving it because I have been associated with the proposal for many years. I have taken due note of what the Government Chief Whip said, and I shall be as brief as possible. It may be seen to be a somewhat complicated amendment. The amendment would make available to the courts a new form of sentence, part to be served in prison and part under supervision in the community, with the conditions to be specified by the courts. I stress those words. They are crucial to the nature of the amendment. It is a composite sentence. The sentence would be applicable to all offenders serving a term of imprisonment of three months but under three years.

The Committee will notice that in subsection (1) of the amendment the offender must have served one month or one-third of his sentence, whichever is the longer, which means that it would be a sentence of three months' imprisonment. The Committee will also note in subsection (1) the word "shall". It is a composite sentence to be applied to all offenders within those periods of time. It would in fact replace parole for most of those who are sentenced within those periods, which was introduced under Section 33 of the Criminal Justice Act 1982. Section 33, as some Members of the Committee are aware, has created anomalies and has attracted a good deal of criticism, notably by the judges.

The proposal was moved in, I think, exactly this form, or at any rate close to this form, as an amendment to the Bill in the last Parliament by Mr. Gerald Bermingham, a Member of another place. It received a sympathetic response from Mr. David Mellor, who was then a Home Office Minister. He, however, felt that it was premature and should await further consideration of the defects of Section 33 parole both within the Home Office and in discussion with the judges. Those discussions have since taken place.

As the Committee will know, the Home Secretary has since asked the noble Lord, Lord Carlisle, to carry out a review of the working of the whole parole system, which is most welcome. Because I am well aware of that I should perhaps say at this stage that, depending on how it is viewed by the Committee and in particular by the Minister, I may well not press this amendment to a Division.

The broad outline of the proposal has been current for some years. It has very respectable antecedents. It was the subject of a Home Office White Paper which reviewed parole in England and Wales in 1981. It had the constant support of the All-Party Penal Affairs Group, and it was commended by the Home Office Home Affairs Committee in its report on the prison service, also in 1981.

Sir Patrick Mayhew, while Minister of State at the Home Office in that same year, commended it as being, not a reduction in sentence lengths as such but rather a restructuring of the nature of sentences". I should add that it has the support of the Magistrates' Association and the Association of Chief Officers of Probation.

The Lord Chief Justice, commenting on my own reference to this form of sentence in a speech in your Lordships' House on 28th February 1982, spoke approvingly of the idea, always subject to the courts having the power not to apply such a sentence in certain cases. If he will forgive my saying so, I remember the curious expression that the noble and learned Lord used—that the courts should have the power to disapply it. That was the word the Lord Chief Justice used.

This form of sentence would have certain important benefits for the penal system. First and foremost, it would place the question of supervised early release as part of a sentence firmly in the hands of the courts. They would have discretion to order that this composite sentence be carried out, or to refuse the non-custodial part, or, if they thought fit, to require that the question of that part be referred to the Home Secretary; in other words, to the parole procedure. This is the cardinal point of this amendment.

Secondly, it would have the benefit of reducing the prison population by an estimated 2,000. That is not an inconsiderable benefit, as I am sure most Members of the Committee would be bound to agree, although I stress that it is second in importance to the value of this form of sentence. Thirdly, it would extend the benefits of parole, or serving part of the sentence under supervision in the community, to a considerably larger number of prisoners. That benefit has been amply proven by the parole system.

Fourthly, it would reduce the amount of time actually spent in prison. There is wide agreement that shorter periods spent in prison, especially for lesser offenders and most particularly for recidivists, are at least as effective as longer ones. Fifthly, it would avoid the costly and time-consuming procedure for assessing and processing shorter sentences through the local review committees and the Home Office. Lastly, it would leave the parole system to concentrate on the more serious offenders who are serving longer sentences—three years and more. The board would only have to consider the, I hope, very exceptional cases of persons serving under three years when the courts so direct.

All these are important arguments in favour of a novel step in penal policy. Some Members of the Committee may think that it is a radical proposal, but it amounts to no more than restoring to the courts the decision as to how long a period should be served in prison and how long in the community. In any case, radical and innovative ideas are badly needed. They are badly needed to deal more effectively and more constructively with crime as well as to extricate ourselves from the dangerous situation in which some of our prisons containing those shorter sentence prisoners are filled to bursting point. I beg to move.

The Earl of Caithness

Perhaps I may, for a change, intervene at this stage because of something I have to say, and on which the noble Lord, Lord Hunt, has touched. It may help the debate. This is a matter which received a great deal of attention in 1981 in the run-up to the Criminal Justice Act 1982. The Government concluded then, for a variety of reasons, that it would he better not to go ahead with a scheme on the lines contained in the new clause for automatic release under supervision.

As the noble Lord, Lord Hunt, will recall, we decided instead to proceed down a different path. In the first place, we activated a provision which already existed in Section 47 of the Criminal Law Act 1977, under which short sentences of imprisonment can be partly suspended. Partial suspension is now available for prison sentences which would otherwise be between three months and two years. It is a useful power which enables the courts to respond to cases where a shorter period in custody than the offence would otherwise justify will suffice for purposes of punishment and deterrence. About 3,900 sentences of imprisonment were partly suspended last year.

Secondly, the supervised release scheme which was under discussion in 1981 following the review of parole was directed, as is this new clause, at the shorter sentence prisoner serving less than three years, who was at that time ineligible for parole. During the passage of the Criminal Justice Act 1982, we agreed to include a provision (Section 33) which allowed the minimum qualifying period for parole to be reduced by order. After a great deal of consideration of the practical implications, we reduced the minimum qualifying period to six months in 1984. The effect is that a much larger number of prisoners became eligible for parole. The increase at the time was from around 10,000 to around 23,000 each year.

More recently, my right honourable friend the Home Secretary announced on 16th July that we had decided, as an interim measure, to increase from one-third to one-half of sentence length the maximum amount of remission which those serving sentences of up to and including 12 months could gain, depending on good behaviour.

I describe this as an interim measure because, as the Committee will know, and as the noble Lord, Lord Hunt, reminded us, my right honourable friend announced at the same time that he was setting up a review of parole and remission arrangements under the chairmanship of a distinguished former Member of another place, Mark Carlisle, who will, I am glad to say, before long be a Member of this Chamber. The review responds to criticism voiced by members of the judiciary and others about the effect of the reduced minimum qualifying period for parole. But its remit is wide, and embraces the possibility that Mr. Carlisle's committee may devise an alternative scheme—alternative, that is, to parole—for the release of prisoners before the expiry of their sentences.

The review of the parole system is now well under way, and the suggestion in this new clause is so central to the matters it will be considering that I am sure the Committee would not expect me to comment on it in detail this afternoon. That is my reason for intervening at this stage of our debate. As the noble Lord, Lord Hunt, said, one significant difference between this proposal and the one which the Government developed in 1981 is that under the new clause the court would have a discretion to disapply the supervised release scheme in individual cases where it considered it necessary to do so for the protection of the public.

The idea of a limited discretion of that kind is, if I may say so, an ingenious one, and I shall draw it to the attention of Mr. Carlisle's committee. As a result, I am sure that the noble Lord will not expect this short debate to be in any way conclusive. However, it will be valuable and I am sure that Mr. Carlisle and the members of his committee will read the report of our proceedings with interest. I also look forward to hearing what Members of the Committee have to say in respect of this amendment.

Lord Donaldson of Kingsbridge

As my name is on the amendment, as we have been asked by the Chief Whip to be short, and as my noble friend has put the case with clarity, I have nothing to add.

It is now five years since we began, and we have found that it takes about five years before the better ideas put forward by the All-Party Penal Affairs Committee are adopted. I hope that in due course something will be done about the matter, after we have received the report which the noble Earl rightly asked us to wait for.

Lord Mishcon

I should like to say a few words about the reference to the Chief Whip who, I am sorry to see, is not in his place. It is obviously proper for a Chief Whip to try to expedite business. However, I think that the Committee will want to bear in mind the serious provisions with which we are dealing in the Bill. If the Committee has to sit for one extra day in order that its deliberations shall be as full and as sensible as they should be, I believe that noble Lords will not think that to be a gross burden upon the shoulders of the Committee.

Secondly, I saw a reference in today's Times to the fact that possibly some of the slowness—as it was indicated—in the Committee's deliberations may be due to difficulties sustained by the Minister in charge of the Bill because he is not a trained lawyer. From this side of the Committee I at once want to pay a completely sincere tribute to the skill with which the noble Earl has conducted the debate so far on behalf of the Government. If he ever decided to join the ranks of my distinguished profession, he would be a welcome member and would beat most of us at our own game.

I should like to ask the noble Earl this question. He was kind enough to indicate that the matters that would be dealt with in respect of this amendment may be referred to the Carlisle committee, if I can call it that. There is one matter about which I am not clear and on which I need guidance. If we were to take it for granted that the Carlisle committee were to make a recommendation along the lines of this sensible amendment, especially with the court power to which the Minister has referred and which is inserted in this amendment, would the necessary powers exist to carry this through by way of an ordinary order, or would one need to have an amending Bill? If one needed to have an amending Bill—and, from a parliamentary point of view, one knows the difficulty of programming it—I think that merely leaving it to the Carlisle committee to consider, if we felt fervently about the matter, may be difficult. If, on the other hand, it could be carried by an order, quite obviously we would have a different view. Can the noble Earl help in respect of that matter?

The Earl of Caithness

Indeed, I can help the Committee. It is one of a number of matters at which the Carlisle committee will be looking, though as I have said, it is a very central matter. It would require legislation. I discussed the matter with my right honourable friend the Home Secretary, and it was part of his decision in July that that was the right way in which to proceed. When we receive the Carlisle committee report we shall consider it urgently. The committee is due to report in July next year, so it will be a quick committee. My right honourable friend will then wish to make a speedy decision and introduce the necessary legislation that he sees fit at that time.

3.45 p.m.

Lord Mishcon

I am grateful to the noble Earl. Between now and Report stage—or possibly at Report stage—can the noble Earl indicate that it is the definite intention of the Government to carry through the recommendations of the Carlisle committee, if approved by Parliament, in speedy amending legislation? Again, that may help us because we are all anxious to carry through sensible reform but I hope that we shall be able to do so speedily. If it cannot be done speedily by the amending Bill, we shall have to consider doing it in this Bill.

Lord Campbell of Alloway

Surely it is difficult to ask any government to commit themselves in advance to implementing the recommendations of a report? It has been recognised by the noble Lords, Lord Hunt and Lord Donaldson, that this proposal involves a restructuring of the parole system. Clearly the matter warrants consideration and, among other matters, it is for general review by the Carlisle committee, subject to this amendment. I think that at this stage it would be premature to try in this Bill to seek to find a resolution. With respect, I disagree with the approach of the noble Lord, Lord Mishcon, when he says that if the Government will not commit themselves in advance to implement recommendations, they should be implemented in this Bill. With respect, that is a non sequitur.

Lord Hylton

I too welcome what has been done particularly in the direction of partially suspended sentences, greater eligibility of parole and increased remission for sentences up to 12 months. The Minister mentioned all those points in his intervention. I strongly welcome this amendment which provides for custodial sentences and for supervision in the community. I believe it to be of such importance that it would be a pity if it was not more fully discussed today and I hope that we may have further opportunities to do so in the course of the Bill.

Lord Harris of Greenwich

My noble friend Lord Hunt has made clear that in any event it is not his intention to press this amendment today. I believe that the question raised by the noble Lord, Lord Mishcon, is entirely reasonable in terms of the general approach of the Home Office on the assumption that the Carlisle committee makes a positive recommendation in favour of this broad approach.

If I may say so on behalf of the noble Earl, it is difficult for a Home Office Minister to give guarantees as to what will appear in the Queen's Speech at the end of next year. It would be attractive were we able to lean on the noble Earl and persuade him to commit himself. However, I do not think that he has that authority and all we can do is to ask him to give as great an undertaking as he is prepared to give that the Home Secretary will do the best that he can, as a departmental Minister, to obtain parliamentary time on the assumption that the Carlisle committee makes a positive recommendation.

Lord Hunt

I have listened with care to everything that has been said and particularly to the Minister who rightly intervened at an early stage. As my noble friend Lord Harris has made clear, I said that I might not be pressing this amendment to a division. I had anticipated that the noble Earl would say what he did. Had I been sitting in his seat—I would have no qualifications for doing so—I should probably have taken exactly the same line.

I was anxious to give this proposal an airing and, judging from the silence of the Committee, I hope that I can take it that there is no strong feeling against it. I will hang on to the use of the word "ingenious", which the noble Earl used in connection with part of the amendment, hoping that whatever he may not have said in public he has some sympathy for in private. I shall wait hopefully and with confidence on Mr. Carlisle to produce, if not this amendment, then something that meets the proper objections to the shortcomings of Section 33 parole. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Donaldson of Kingsbridge moved Amendment No. 68: After Clause 44 insert the following new clause:

("Prison Disciplinary Tribunal.

.—(1) For the purpose of exercising the functions conferred on it by this section there shall be a body known as the Prison Disciplinary Tribunal, consisting of—

1. (a) the President, who shall be a circuit judge; and
2. (b) not less than four chairmen, who shall be barristers or solicitors of not less than seven years' standing

who shall be appointed by the Lord Chancellor.

(2) The President shall appoint not less than twelve lay members of the Tribunal.

(3) The Lord Chancellor shall make rules for the referral of charges to the Prison Disciplinary Tribunal, the proceedings of the Tribunal on charges referred to it and the imposition of penalties by the Tribunal.

(4) It shall be the duty of the Prison Disciplinary Tribunal to inquire into any charge referred to it under rules made under subsection (3) above and, if it finds an offence against discipline proved, to impose penalties as prescribed by those rules.").

The noble Lord said: This is a probing amendment on behalf of the Parliamentary All-Party Penal Affairs Group to try to find out what is in the Government's mind in relation to the rather curious series of events which have followed the issue of the Prior Report. I am particularly interested in this subject because over 10 years ago and for 10 years I was chairman of a board of visitors. I have always thought that the main recommendation of the Prior Report was right (namely, that boards of visitors should be relieved of their adjudicatory duties) and I was concerned in persuading the noble Earl, Lord Jellicoe, to chair the committee which some years ago recommended that change. Recently there has been a very well argued and clear report from the Prior Committee which made exactly the same recommendations.

We thought the time was ripe for notice to be taken of our views and, sure enough, in a White Paper issued last year the Government said that they had accepted the principle that boards of visitors should be relieved from handing out punishments to prisoners. The Government did not agree to the method suggested by the Prior Report, which is exactly the content of this amendment, but I do not propose to discuss that matter in detail now.

What happened on the 25th September, when the noble Earl talked to boards of visitors, came as a great shock to us all. He said that he was dropping all the concessions to which he had agreed as a result of the Prior Report except for the new code of practice and the proposed reduction of the maximum punishment from 180 days to 120 days loss of remission, but that such adjudications should continue to be performed by the boards of visitors.

On Report I want to introduce a series of constructive amendments and at that stage to divide the House in order to try to force the Government to take notice, but before I do that I have thought it wise to hear what the Government have to say about this issue. Without taking too long, I should like to remind the Committee that some Members have not served on boards of visitors although a number of others have done so, and it is an agreeable social service. The purpose of a board of visitors is threefold.

Its first objective is to look after the interests of prisoners and staff in the prison that it serves. The board must be available to hear complaints; it must he easily seen when going round the prison so that the prisoners and staff can recognise its members and if something is going wrong they can come to them. That is the board's first and most important function.

Secondly, not being a judicial body the board should not have to make adjudications of a kind which are the equivalent of an increase in sentence. In a case which I shall not cite but which is readily available Mr. Justice Waller agreed that the loss of remission was equivalent to such an increase. So it is extremely important that such decisions, if they are not to be made by the board of visitors, should be made by a body that has a proper legal head and judicial position. The board of visitors is also responsible for backing up the governor of the prison in his efforts to persuade the Home Office to improve conditions. Every prison governor finds himself in that position and the function of the board is very useful to him.

The board's third function concerns the right of the chairman to get directly in touch with the Home Secretary to tell him when there is something seriously wrong—for example, if the governor's mind seems to be going without his realising it or if he is losing his grip and it is difficult for staff to complain. It is the chairman's job to keep the Home Secretary informed.

Those are the three proper functions of the board. The additional task of handing out small and sometimes large punishments (until now it has been as much as 180 days) is deleterious to the confidence that the prisoners have in the friendship of the people on the board. If the board is to do its work properly, it is essential that the prisoners should regard it as being on their side.

I have no more to say. I think the situation is fairly obvious. Anybody who wants to know more about it will find this matter carefully and in my opinion irrefutably argued in the Prior Report. As I said, I do not propose to divide the Committee at this stage but I hope very much to be able to do so when I have found out the Government's thinking. I shall be surprised if I am able to agree with it. I beg to move.

Lord Denning

I have never sat on a board of visitors but on the other hand the courts have had to consider the position of boards of visitors at prisons, especially after the riots that took place at Hull prison in 1976. It is important to remember that boards of visitors are not merely judicial but administrative. They look into the management and affairs of the prison to ensure that everything is going well. However, in addition, they have a disciplinary function. I stress the word "disciplinary" because in such cases the Court of Appeal emphasised that when boards were exercising disciplinary functions they did not constitute a criminal court and were not exercising a criminal cause or matter. The boards were exercising disciplinary powers just as do professional bodies over their members and courts martial over members of the armed services. They are exercising disciplinary powers and therefore they are not to he treated in any way as a criminal court.

However, in those cases the court said that boards must observe the rules of natural justice, that every man must know the case which is made against him and have an opportunity to defend himself, and that that principle will be enforced on the boards of visitors by the courts.

The question posed by this amendment is whether that situation should be changed. The boards of visitors consist of two magistrates and lay visitors who are well selected and advised. Are they to be replaced, as this amendment suggests, by a circuit judge or barristers and include, apparently, 12 laymen? I suggest that such a proposal turns the board far too much into a criminal cause or matter. I do not say that the system is perfect at the moment hut it is better to retain something on the present lines of a disciplinary body. Certainly the boards possess strong powers—powers to recommend remission and so forth—but they are still disiplinary bodies. As long as they observe the rules of natural justice and give everyone a fair hearing, I am not sure that it is not better to leave the situation as it is and not to set up what is in effect a new criminal court. I do not support the amendment.

4 p.m.

Lord Campbell of Alloway

Very briefly, I support the principle of the amendment. It is made so much easier if the Committee is not put into the position of having to divide on it. The reason why I support it is from my experience as counsel, having sought, on the instructions of the Treasury in one of these cases, to support the disciplinary findings of the board of prison visitors and having been unable to persuade either court, certainly not the Court of Appeal, that these findings should stand. It had, with the best will in the world, breached some of the fundamental principles of natural justice and the courts quite rightly rejected my submissions and quashed these disciplinary findings.

That is a very bad thing for the morale of a prison. It is a very bad thing for the morale of the prisoners. Nobody knows where he stands. I welcome this opportunity to say just why I support this amendment. Of course the experience of one man may be totally inadequate, but such as it is, I think the time has come to do something; and, with respect, I totally disagree with the noble and learned Lord, Lord Denning, that we should leave matters as they stand. There are two views about it, but I hope that in the interests of the better ordering of prisons, which is after all a very important matter of public concern today, we may all look at this without preconception and keep an open mind.

Lord Hutchinson of Lullington

It gives me great pleasure to support the noble Lord, Lord Campbell of Alloway. If we go on in this way we both may end up on the Cross-Benches.

I wonder whether the Minister would agree that a wholly acceptable disciplinary tribunal in a prison can do more almost than anything else to make the administration of that prison peaceful and acceptable. If he does agree to that, would he agree that there are four absolutely essential requirements for such a tribunal: that it should be independent of the prison management and appear to be so; that it should have a judicial nature; that it should have consistent decisions throughout the service; and that it should have some form of appeal?

I do not know whether the Minister would agree about that, but the proposal in this amendment has been supported by the governors, by the Prison Officers' Association, by the Law Society, as we have heard, by the all-party Penal Affairs Group and also by NACRO, by the Howard League and by the Prison Reform Trust. So that right across the whole area of people either concerned with or interested in this aspect it gets full support.

The Minister, I am sure, knows what a tremendous contribution tribunals have made in the Dutch penal system, where the tribunal which goes into the prison deals with a great many more things than pure discipline, and with nearly all matters which may give rise to frustration and complaint among the prisoners. It makes a tremendous contribution if you can get something from outside into the prison and I suggest that this amendment does exactly that. I shall be most interested to hear whether the Minister agrees with this suggestion.

The Earl of Caithness

Before I deal with the substantive issues raised by this clause, I think it may be worth recalling the recent history of this complex subject. The Prior Committee was set up to review adjudications partly because there were serious concerns whether boards would be able to cope following the Tarrant judgment, which opened up the possibility of legal representation in boards' disciplinary hearings. The Prior Committee concluded that new adjudication arrangements were needed and recommended the establishment of a prison discipline tribunal, which would consist of legally qualified chairmen and lay members. The clause now before the Committee seeks to implement this recommendation.

As a basis for consultation with interested bodies, the Government published a White Paper setting out options for new adjudication arrangements, including a tribunal as recommended by Prior, a system using magistrates and new lay panels assisted by qualified clerks, perhaps magistrates' courts clerks or local solicitors. We had thought that the last Criminal Justice Bill would provide a vehicle for legislating for changes, but in the event decided that the way forward was not sufficiently clear at this stage. As my honourable friend the Minister of State said when the subject was raised in another place, we proposed to use the time thus available to take stock. This we have done.

What has become clear is that there is no consensus about the way forward on the key question of who should, conduct adjudications on the more serious disciplinary offences. A number of individuals and organisations continue to think that the right way forward is a tribunal of the kind advocated by the Prior Committee. Some continue to think that magistrates should conduct these adjudications. Some, and in particular the large majority of boards of visitors, are of the opinion that they should not lose their adjudication functions. It would be fair to say that those who support the Prior Committee's proposals have generally not regarded those in the White Paper for creating a new lay body assisted by qualified clerks as sufficiently radical. At the other end of the spectrum of opinion, while some of those who favour boards retaining their adjudicatory function see the White Paper proposals as less unsatisfactory than the Prior Committee's proposals, they cannot be said to be enthusiastic about the idea of splitting off adjudications to a new lay body. I am also aware that there is a view among some of those who support the Prior proposals that it would be better to leave things as they are than to go for an option for change other than that recommended by the Prior Committee.

Against this background, I want now to set out the main conclusions we have reached and then go on to explain what we see as the next steps. The broad conclusions we have reached are as follows. First, the Prior Committee recommended a new discipline code and various procedural and similar changes most of which seem to command general support. We believe that we should press ahead with these changes, as set out in the White Paper. Secondly, there is widespread support for the notion that whoever conducts adjudications on the more serious disciplinary offences needs to have access to legal and procedural advice, expertise and experience. We accept this.

Thirdly, I was not in the Home Office at the time but I know that the Tarrant judgment generated serious worries both in the Prison Department and among boards as to whether boards would be able to cope with adjudications post-Tarrant. It was largely for this reason that the Prior Committee was established. We are bound, however, to have regard to the fact that boards have coped remarkably well since Tarrant; and the fears which, as I have said, led to the establishment of the Prior Committee have proved largely unfounded. This is not to say there is no room for improvement, but it raises the question of whether the upheaval which the creation of a new adjudicatory body would be bound to create is actually necessary.

Fourthly, we are also bound to have regard to the possible difficulty of finding sufficient lay people for a new adjudicatory body and to the possible implications of trying to do so in terms of the availability of people to serve as members of boards of visitors.

Fifthly, as I have indicated, at present we can see no prospect of finding new arrangements for adjudications above governor level which will command general support. The prison discipline area is not one in which we would want to push through changes which did not command such support. But if we wait around for a consensus to emerge we shall do two things: we will trespass further on the patience of members of boards of visitors, who give freely and unstintingly of their time to the oversight of prison establishments, leaving them uncertain about the future and undermining their confidence in what they do. I realise with regret that this may already have happened to some extent and am grateful to boards for the forebearance they have shown. In addition, we will delay the important other changes—new code of discipline, revised procedures, expert assistance—which the prison discipline system needs.

In the light of the stock-taking I have just recounted, my right honourable friend has concluded that we should not proceed with our proposal to create a new lay body to adjudicate on the more serious breaches of prison discipline. This function will stay with boards for the foreseeable future and we will get down to work with boards and governors and others to improve the disciplinary system in other ways than by structural change. I recognise that this means forgoing the objective of separating the adjudicatory and watchdog functions. This is not entirely satisfactory, though it is not without its advantages since boards of visitors possess valuable knowledge about individual establishments. But if we allow ourselves to become impaled on this point, we shall fail to make the other improvements which the Prior Report has shown are needed and which are within our grasp. As I have indicated, we shall also proceed with the new code of discipline and various other procedural matters, as indicated in the White Paper, although in the light of the decision to leave adjudications with boards.

We also intend to provide boards with the assistance of magistrates' court clerks or solicitors and will be working out with the co-ordinating committee, the Justices' Clerks' Society and other interested bodies precisely how to achieve this. In addition, we intend, again with the help of these bodies, to design training programmes for boards, governors, other staff and clerks in the new arrangement.

Finally, on timing we are aiming to have the new arrangements in place as early as possible in 1989, which gives us roughly 18 to 24 months from now.

I am grateful to the noble and learned Lord, Lord Denning, for his support in leaving matters as they are. However, as I have explained, they will not be quite as they are; there will be significant improvements. Those improvements go to the core of the reason that my noble friend Lord Campbell of Alloway gave for supporting the amendment. The noble Lord has now had my explanation. I hope that the procedures will be tightened up and that the sort of case he suggested to the Committee will not happen again, given the expert and legal advice that will be forthcoming.

The noble Lord, Lord Hutchinson of Lullington, raised four points on disciplinary procedure. I remind the Committee that what we are discussing is a very limited number of disciplinary functions undertaken by the boards of visitors. The great majority, over 90 per cent., is undertaken by the governor in the normal course of his duty. The prisoner is no stranger to having matters of discipline dealt with internally in the prison mechanism.

To take the noble Lord's four points, he said that the disciplinary body must be independent of prison management. I agree. The boards of visitors are independent of prison management. He said that this should be of a judicial nature. I think that we can overdo the "judicial nature" aspect in prisons. We are talking about internal discipline within a prison, as so rightly said by the noble and learned Lord, Lord Denning.

The noble Lord, Lord Hutchinson, said that we must have consistent decisions. I could not agree more. However, this requires training. As I have said, we shall be concentrating on this to a greater degree in the future. As I am sure the Committee needs no reminding, it varies from prison to prison. It depends on the nature of prisons how many adjudicatory meetings are held by the board of visitors or its equivalent. Consistency is particularly important where there are few references to the board. This is where the training that we propose will be additionally beneficial.

Lord Hutchinson of Lullington

The Minister mentioned my four questions. As to the independence point, the prison visitors are appointed by the Home Office. Under the amendment they would be appointed by the Lord Chancellor and therefore show independence of the Administration. As to the point about consistency, a tribunal would be dealing right across the board and not separately in each individual prison.

The Earl of Caithness

I can see the wrath of the board of visitors descending upon the noble Lord if he accuses them of not being totally independent although they are appointed by my right honourable friend! I beg to differ with the noble Lord: the prison visitors are very independent, as I know full well.

Fourthly, the noble Lord mentioned appeal. Again one is becoming perhaps too judicial in the internal running of a prison. I should add a fifth point to the noble Lord's four; that is, the mood of the prison. When one is considering internal discipline, knowledge of the prison is very important. The very tribunal that the noble Lord wants will have no knowledge of the prison, it will not know the daily mood of the prison, how it fluctuates at various times of the day and how the governor and the prison officers are coping on the landings. To have a totally judicial barren body coming into a prison would, I am sure, be more upsetting than the present arrangements.

I wish to pay tribute to the work done by the boards of visitors in their adjudicatory function. When I explained our decision to them at their recent conference, they gave a warm welcome to what the Government had decided.

I thought that it was right to set before the Committee the consideration that we have given this issue. I believe that the way forward that I have mapped out will produce worthwhile improvements in our prison adjudication arrangements.

4.15 p.m.

Lord Elwyn-Jones

I venture to think that few proposals for prison reform have commanded wider support within the criminal justice system than the Prior Committee proposals. It is a matter of great disappointment that the Government have turned down those proposals and indeed moved from their thinking in the earlier White Paper.

The noble Lord, Lord Hutchinson of Lullington, has listed the wide range of bodies directly concerned in the matter which have supported the recommendations in the amendment under discussion. Seldom has there been such wide consensus for what is proposed. The Prison Governors Association would be actively concerned in processes affecting discipline. There is support from the Prison Officers Association and the Magistrates Association—I do not know whether the noble Lord, Lord Hutchinson, mentioned that—and the Law Society, whose clients are involved, if that is the right way of describing them, although not all of its clients naturally are involved in this matter, has indicated its support. Then there is NACRO, the Howard League and the Prison Reform Trust. There is overwhelming support for what is proposed.

I confess that both I and my noble friends are totally unconvinced by the—I will not use the unkind word "excuses"—purported explanation given by the noble Earl for not proceeding with a proposal which has had such widespread support in a difficult field.

Lord Harris of Greenwich

I very much agree with what the noble and learned Lord, Lord Elwyn-Jones, has just said. I doubt whether any proposal in regard to prisons in the immediate past has received more widespread support than the recommendations of the Prior Committee. That having been said, I imagine that Mr. Prior must be feeling a little upset at the way in which his principal recommendations have been treated by the Government. I hope that Mr. Carlisle will be rather more successful when he makes his recommendations. If people are asked to study these matters carefully over many months and give up a great deal of time and effort in so doing, it seems most unfortunate that their central recommendations are thrown out on the basis, I am bound to say, of a pretty flimsy argument.

The noble Earl rests his case on the apparent widespread divergences of opinion that have resulted. But the central group of people opposed to what Mr. Prior has recommended is the board of visitors—not all the boards of visitors, as the noble Earl was frank enough to say, but the majority of them. It is hardly surprising that they take that view. I share the Minister's admiration for the work that they do. It is hardly surprising that some of them want to keep their existing authority in these matters.

I went into this matter a great deal when I held the same position within the Home Office as the noble Earl, Lord Caithness, holds now. When I remember some of the meetings that we had with the then Home Secretary following the report of the noble Earl, Lord Jellicoe—which I believe was sponsored by NACRO—I am bound to say that I increasingly came to the conclusion that it would be necessary in the future to separate the general responsibilities of boards of visitors and their disciplinary powers.

I took that view because I believe there is a fundamental inconsistency in terms of the twin roles of the boards of visitors. First their role is, as it were, to befriend the individual prisoner. Some members of the boards of visitors sit on the local review committee and make an important contribution to the whole parole process. They do an excellent job. However, there is a great gap between that responsibility and their disciplinary responsibilities. That is the first leg of the argument.

The second leg concerns what the noble Earl has just said. He said, broadly speaking, that we must not be too judicial in terms of the running of the prison. However, as the noble Earl is well aware, the fact of the matter is that the courts are taking an increasing interest in what goes on in the hearings before boards of visitors. The noble Lord, Lord Campbell of Alloway, touched on that point. The noble Earl will be aware that there have been a whole series of cases of judicial review where the courts have expressed concern about the way in which some disciplinary hearings have been conducted.

I am not making a point of this in terms of the present Government's period of office because I remember just such a case after the Hull riots when the Labour Government were in office. The members of the then Labour Government were very concerned about some aspects of the way in which boards of visitors had carried out their responsibilities on that occasion. That was another case where the courts became involved.

The noble Earl must accept that judges will be increasingly invited to take an interest in what goes on before these tribunals—namely, the boards of visitors. Given the fact that there is this inconsistency in terms of the present responsibilities of boards of visitors and also because the courts themselves are indicating a degree of concern in this matter, it seems to me that it does require far more fundamental action than that which the Government are contemplating taking. I very much regret that the broad approach of Mr. Prior and his colleagues has not been adopted. I think that that is a mistake and that before long we shall have to return to this matter again.

Lord Simon of Glaisdale

The noble Lord, Lord Donaldson, indicated that he introduced this amendment in order to test the opinion in the Committee. In expressing a personal view, it is only right that I should remind the Committee that it is now 30 years since I had responsibility for prison administration. Nevertheless I am bound to say that having listened to the arguments today it seems to me that the arguments in favour of the amendment far outweigh those against it. The Committee has heard them fully and pointedly put but that is the impression made on at least one Cross-Bencher.

The Earl of Caithness

While I agree with the noble and learned Lord, Lord Elwyn-Jones, that, with the exception of boards of visitors, there was a general view that the two functions should be separated, I must tell the Committee that it was very much harder to arrive at any agreed view on what should replace boards of visitors. Indeed we did not arrive at such a view.

While some groups supported the Prior committee recommendations because they affected the split in functions, such a system was not the first choice for many of them. Although the noble Lord, Lord Harris of Greenwich, says that Mr. Prior must be very upset, I can re-emphasise that much of what he suggested is being and will be implemented, and that includes the points with regard to procedures. By the use of magistrates' clerks and solicitors we hope that some of the problems that the boards faced in the noble Lord's day and in mine, I make no secret of that, will be overcome by the new provisions that we shall provide.

Lord Hylton

Before the noble Earl sits down will he say in plain terms what is wrong with the system proposed in the amendment? Is it cost, I wonder? If so will the noble Earl tell us?

The Earl of Caithness

I can only apologise to the Committee. I took about seven or eight minutes explaining why I thought it was wrong and why the system that we had proposed was a better one. I should hate to read everything that I have read out yet again. I hope that the noble Lord will accept that I have tried to discuss the arguments and present them in a way that showed why we found the matter so difficult. I highlighted five points in my argument for keeping the disciplinary function with the boards of visitors. I also said that because of the great difficulty that we have had in getting any kind of agreement on what could replace it, whether it is the Prior committee or whether it is something different, and for other reasons, we have opted for the present strengthened arrangements.

Lord Donaldson of Kingsbridge

I am grateful to the noble Earl for having given us a serious argument, with which I told him that I should not agree and nor do I. However, that is no surprise to him. The noble Earl gave thought and time to this matter and outlined a number of his reasons. I am grateful to him for doing so. I wanted to get some feeling of the support in the Committee, I think that if we table an amendment on Report it might be rather different from this one. I shall explain why in a minute. I also believe that we should probably win that amendment. I am grateful to the noble Earl for giving me the opportunity to get this matter openly discussed.

There are two comments that I wish to add to the debate. First, one must not forget that adjudications before the board only arise for fairly serious offences. The governor has the day-to-day running of the prison. I agree with the noble Earl that we should not wish to interfere with that. Therefore the argument of independence from outside is much more important than it would be if it were simply a case of small indisciplines.

I am at a loss to remember the exact words of my second point. I am sorry about that. It must be old age! I am very grateful for the assistance that I have received from my noble and learned friend Lord Elwyn-Jones, from the noble Lord, Lord Campbell of Alloway, from my own friends and from the Cross-Benches. We shall come back to this matter on Report and I hope that we shall succeed in getting a change made. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.30 p.m.

Lord Henderson of Brompton moved Amendment No. 69: After Clause 44, insert the following new Clause:

("Criteria for sentencing young offenders.

.—(1) Where a person aged 21 years or over is convicted of an offence, the court may not pass a sentence of imprisonment on him unless it is satisfied—

1. (a) that the circumstances, including the nature and the gravity of the offence, are such that a sentence of imprisonment is appropriate; and
2. (b) that he qualifies for a sentence of imprisonment.

(2) An offender qualifies for a sentence of imprisonment if—

1. (a) he has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them; or
2. (b) only a sentence of imprisonment would be adequate to protect the public from serious harm from him; or
3. (c) the offence of which he has been convicted or found guilty was so serious that a non-custodial sentence for it cannot be justified.

(3) Where a court passes sentence of imprisonment on a person aged 21 years or over, it shall be its duty—

1. (a) to state in open court—
   1. (i) that it is satisfied that he qualifies for a sentence of imprisonment under one or more of the paragraphs of subsection (2) above:
   2. (ii) the paragraph or paragraphs in question; and
   3. (iii) why it is so satisfied; and
2. (b) to explain to the offender in open court and in ordinary language why it is passing a sentence of imprisonment on him.")

The noble Lord said: This is a new clause intended to extend to adult offenders the criteria for imposing custodial sentences on young offenders. I must first apologise to the Committee for the fact that the side-note is both misleading and defective. It suggests that this is concerned with young offenders; it is not. It is to impose restrictions on the imposition of custodial sentences on adult offenders. The side-note could hardly be more wrong and my apologies equally could not be more profound. Perhaps one of the reasons why something went wrong in the transmission to the Marshalled List is that this amendment, quite openly and manifestly, applies to adults the provisions of Clause 111, which refers to young offenders.

The history of that clause is interesting and I want to thank the Government most warmly for incorporating it into the Criminal Justice Bill. A lot of hard work was done on Clause 111 by the all-party Penal Affairs Group. In the last Session of the last Parliament earlier this year the noble and learned Lord, Lord Silkin, introduced, I think, the very words of Clause 111, or something very close to them, as a Private Member's Bill. However, I do not think it was even discussed, because the chopper came down, the Session came to an end and there was a general election.

It is very welcome to be able to congratulate the Government on this and one must only hope that they will be equally sympathetic to my amendment, which extends to adults what I may call the Silkin clause, which applies only to young offenders. The Chief Whip asked us all to be brief. I am very much inclined to be brief, but the remedy lies with the noble Earl. If he could indicate that he would agree to this, I could be perhaps 30 seconds or no more than a minute. I can see no reason why, if the Government and the Home Secretary have agreed to this very remarkable Clause 111 for juveniles, they cannot also agree to the same provisions for adults.

The two main purposes are to have consistency in sentencing. As the noble Earl and the noble and learned Lord, Lord Hailsham, said, consistency is the name of the game and that is one of the prime purposes of the amendment. The other of course is to keep people out of prison. Here I should like to quote the very words of the noble Earl, Lord Caithness, when he was replying to an amendment moved I think by the noble Lord, Lord Harris of Greenwich. He said on 27th October at col. 510 of Hansard: I am bound to look carefully at any proposal which is argued to hold out the possibility of easing the pressure on the prison population". That is exactly one of the main purposes of the amendment and so I very much hope that he will look carefully at this, as he said he was bound to do so.

The point about this is that the sentencing authority—the magistrates, say—have to go through hoops and have to give reasons why they are passing a sentence of custody. They also have to say why they have not felt able to consider a non-custodial sentence and to give their reasons. There are so many reasons why this is a sensible thing to do. The noble Lord, Lord Elton, who I am sorry to see is not in his place, when he was a Home Office Minister spoke about this on 14th July, in I think 1985. I cannot remember the year. He said: nothing makes it more likely that a person will go to prison than the fact that he has been there before. For most who undergo it, imprisonment is not a constructive experience. It is not a rehabilitating experience and it does predispose to reoffending".

This is an assistance in the process of not sending people to prison in the first instance. It is forcing, by statute, certain guidelines on the magistrates and other sentencing authorities so that they will have to say why they have refused to apply to this particular offender a non custodial sentence. One would have thought this would be welcome, and indeed it seems to be welcome so far as one can tell to the magistrates and the justices' clerks. There is a research study by Elizabeth Burney of 12 magistrates' courts. She found that: the principle of statutory reasons was … on the whole welcomed, especially by justices' clerks". Again she says that: a series of hoops through which sentences must pass before they can lake the dire step of depriving a young person of his liberty'", is again welcome.

We have some evidence that this approach works, because in the 1982 Act there were criteria which were buffed up in this House by, I think, the noble Baroness, Lady Faithfull. Those are the criteria which are in the 1982 Act and there is evidence to prove that the buffed-up criteria have had the effect of reducing the number of first offenders who would otherwise have gone to prison. So although I have had no assurance from the noble Earl that he will accept this amendment or even look at it sympathetically, I will cut short my remarks and say that, as Her Majesty's Government have agreed the principle of this amendment in relation to young offenders, I can see no reason why they cannot agree the principle of this in relation to adult offenders. For that reason, and with hope, I beg to move.

Lord Hunt

Let me say as a supporter of this amendment with the noble Lord, Lord Henderson, that it underlines the principle of resorting to imprisonment only as a measure of last resort. That is a principle which has been enunciated and stressed times without number without, I suggest, having any noticeable effect on certain magistrates' courts. To translate the principle into criteria and to enshrine them in statute is likely to have a very much greater effect than any number of guidelines, urgings and advice, whether from the Home Office, the Magistrates Association, the Court of Appeal or even the Lord Chief Justice himself.

I think it was the noble and learned Lord, Lord Hailsham, who when speaking to Clause 38 (a reference to the Court of Appeal for increasing a sentence) said that the guidelines were not enough: they were too generalised. I hope I have not quoted him out of context. I believe there is everything to be said for having the same criteria for adult offenders as for juvenile offenders—and in fact for all offenders—who are deemed to be appropriately dealt with only by sending them to prison.

Lord Somers

I should like very much to support this amendment. Perhaps the noble Earl would say when replying whether the Government have ever considered the question of hard labour as a possible alternative. I know this would not always be practicable but there is a great deal of heavy work to be done, particularly at present in the clearing up of the wreckage of the recent storms. I wonder whether the Government think that would be a practicable solution.

Lord Denning

While we should all welcome Clause 111 in regard to young offenders, for myself I think that the Committee would be going far beyond its functions with the amendment. It amounts to giving directions to High Court judges as well as to magistrates as to the guidelines on which they can consider sentences. They probably consider all those guidelines at the moment. However, it is not the function of Parliament to tell judges how they are to decide when sentencing. They may do that with regard to young offenders. But this amendment applies to everyone from High Court judges to magistrates.

The guidelines are precisely what are operated now. There is no need to put them in an Act of Parliament. That is not the proper place for them.

Lord Silkin of Dulwich

Perhaps I may say a word or two on the point which has just been made by the noble and learned Lord. The provisions of Clause 111 arose in this way. It was felt by many that the existing restrictions which were imposed by Parliament on sentencing of a custodial nature on young children were being operated in an extremely variable way.

It was felt that it would be highly desirable that the rather broad words of that clause should be made more specific and clearer. That was why substantially the words now appearing in Clause 111 were incorporated into the Private Member's Bill to which the noble Lord, Lord Henderson, has referred and which I brought before the House. That Bill obtained a First Reading. However, it could go no further because of the Dissolution.

Those of us who supported that cause were particularly glad, therefore, to see that the Government took it up in Clause 111 and that it now appears in this Bill. It is right to say that there is no attempt here to have a second bite of the cherry. The position is that the operative part of the clause that applies to young offenders contains the principles which any court ought to apply when dealing with the question of imprisonment, whether it is dealing with a young offender or with an adult offender. In one case it is called imprisonment; in another it is a custodial penalty of a different kind. The principle remains the same.

If it be right that Parliament ought not to lay down the kind of considerations which a court should apply before deciding whether the extreme step of a custodial penalty should be imposed in the case of an adult, then it seems to me that it is right to do so in the case of a young offender as well. In that case, one would not see Clause 111 as part of the Bill.

There is a considerable benefit in making it clear to the courts, whether they be the high courts or the magistrates' courts, that there are certain criteria which ought to be followed, which are understood and which are the wishes of Parliament. That is equally applicable whether one deals with the young offender or with the adult offender.

There is the further advantage that the clause and the amendment would force a court, where it takes the view that the case in question is one in which it cannot avoid, for one reason or another, a custodial sentence, to say why that is the case. Provision is made for that in subsection (3)(a). That applies equally whether one is dealing with a young offender or an adult.

In my view it is a considerable advantage to make clear to the public why that step has been taken. Relatively speaking, there would probably be more adult cases under subsection (2)(c) than cases involving young offenders. But the importance of those criteria of failure to respond in the past to non-custodial penalties, the question of protecting the public or the fact that the offence is such that one must impose a custodial sentence because a non-custodial sentence would not be justified, are matters which the public should know about in each case and would form the basis upon which other courts would be able to see that the policy of dealing with custodial powers is a consistent one.

In the case of a young offender, there would be consistency between one court and another. Those who were concerned with Clause 111 were particularly interested and regarded it as being particularly important to have such a provision on the statute book. The need for consistency is just as important when one deals with adult offenders. For that reason I wish to support the amendment.

4.45 p.m.

The Earl of Caithness

The effect of this new clause would be to extend to adults a restriction which the Bill already imposes on the use of custody for young offenders. On the whole, we should prefer to give emphasis to the guidance of the Court of Appeal on the sparing use of custody and on the energy and imagination of the probation service in developing demanding alternatives to custody and ensuring that the courts are fully aware of their existence.

Nevertheless, we were ready, during the passage of the Criminal Justice Act 1982, to accept amendments introducing the restrictions which are now in Section 1(4) of the Act. During consideration of this Bill's predecessor in another place, we were glad to read some changes in the language of that section which seemed to us to improve it.

The question is whether the same restrictions should apply where the court is contemplating imposing a sentence of imprisonment on someone over 21. My instinct is that, understandable as this suggestion is, it would not be a desirable course to follow. Whatever view one takes of effectiveness, Section 1(4) as it will stand once the Bill is enacted highlights the special considerations which apply to young offenders. The argument for avoiding a custodial sentence wherever possible applies to all offenders. But it applies to the young with particular force, and by enacting Section 1(4) Parliament has made it clear that that is its view.

The law already contains one statutory restriction on the use of custody for adults. Section 20 of the Powers of Criminal Courts Act 1973 precludes the imposition of a prison sentence on a person who has not previously served a sentence of imprisonment, unless the court is of the opinion that no other method of dealing with him is appropriate". That rather illustrates the point I have been making. It is not that the court should be careless of the effects of prison on an offender with previous custodial experience; quite the contrary. But there is a particular argument for careful and mature reflection before sending someone to prison for the first time.

The Government's policy on the use of imprisonment is quite clear. The most serious offences, especially offences of violence, call for severe prison sentences. However, for the great majority of less serious offences, and especially those which do not involve violence, the emphasis must be on alternatives to custody. Where a custodial sentence is unavoidable, it should be for as short a period as possible. That is the approach which the Court of Appeal has commended in guidelines to the lower courts, and that has our full support.

Bringing about the greatest use of alternatives to custody has two components. In the first place, the powers of the courts need to be adequate for the purpose. The Criminal Justice Act 1982 greatly improved the range of non-custodial powers. Provisions for the courts to include specific requirements in probation orders are the statutory peg upon which they can hang the more demanding alternatives to custody. The second component is the availability of schemes to which the offenders can be sent to custody. Since the Government came to office the probation service has expanded considerably and the development of day centres and similar alternatives to custody, to the service's great credit, proceed apace.

The number of probation orders imposed on those aged 21 and over increased from 14,200 in 1979 to 21,600 in 1984, an increase of more than 50 per cent. To the noble Lord, Lord Somers, I should say that perhaps hard labour is the wrong word, but some of the community service orders that are now being given are very strict and tough and a good alternative to custody. I see the noble Lord, Lord Harris of Greenwich, nodding his agreement, with his experience. I am grateful for that.

I can say that some of the work being undertaken in prisons themselves is fairly tough. One only has to look at the work which some of the prisoners have undertaken at Rollstone. That has been very much appreciated in the local community. There has been a marked shift towards making alternatives to custody—which we are so in favour of when it is right—strict and demanding where necessary.

To sum up, my point is this. There is under Section 20 of the Powers of Criminal Courts Act 1973 a demand on the adults. We want to make a slightly different demand for those under 21. I believe it is right—I am sure that the Committee will agree with me—that we need to differentiate. We need particular emphasis on those under 21. I see what the noble Lord, Lord Henderson of Brompton, is driving at, but we ought to keep the difference as it now is.

Lord Henderson of Brompton

I find that a disappointing reply, and it does not enable me to shorten my speech in winding up as a more favourable reply would have done.

I am grateful to the noble Lord, Lord Somers, for his support. As to the noble and learned Lord, Lord Denning, I say this. No disrespect whatsoever is intended to the judiciary by this amendment; certainly not. But if these guidelines are, as he says, just what the High Court operates now, what on earth can be the objection to their being made statutory or possibly more specific and clear? I find that very difficult to understand.

Consistency is not being applied across the board at all. This is one of the reasons I shall have to speak at greater length than I otherwise would have done. I quote from the report of the Home Office's own research and planning unit. It is called Managing Criminal Justice. It is dated 1985. It contains the findings of a study of the sentencing of adult male offenders in 30 magistrates' courts. I stress the word "adult". The proportionate use of immediate custodial sentences varied from 5 per cent. to 23 per cent. If there is such a variation as that surely there is a very strong case for bringing in statutory guidelines such as this clause suggests.

The same Home Office report goes on to say: In particular, some courts fine offenders where others would discharge them or award a custodial or suspended sentence". Again, this is evidence of gross inconsistency as between courts and even between neighbouring courts. I give another quote from this same most remarkable Home Office document: no court spokesman claimed that any attempt was made to achieve consistency with his neighbours or with courts over a wider area or with what was thought to be national practice … they regarded such knowledge as irrelevant to their own decisions or problems". In the face of such damning evidence, how can the noble Earl dismiss a clause like this which is aimed at improving the consistency of sentencing?

Baroness Macleod of Borve

Will the noble Lord give way? Is he talking about the magistrates' courts? If he is, perhaps I may say that there is considerable discussion between magistrates' courts that march one with another around a very wide area. That is to my certain knowledge.

Lord Henderson of Brompton

Naturally I am most grateful to hear that from the noble Baroness, whose experience, as we all know, is extremely deep on this front. What I am quoting from is a Home Office research and planning unit report made in 1985. It was specifically related to 30 magistrates' courts, not the High Court. The findings are what I have quoted. They are not my opinions.

I see the Chief Whip frowning, but one of the reasons I am having to make this speech in reply is that I got no change at all from the noble Earl on the Front Bench. I made a great deal of effort to confine this to perhaps five minutes to eight minutes, but I have had no co-operation from the Front Bench. As he himself has said that consistency of sentencing is very important, I have had to adduce these statistics which have been given by the Home Office's own research unit to show that there has been gross inconsistency among magistrates' courts about sentencing policy.

I do not know whether the noble Earl would like to say a word about this inconsistency. As I have said in my opening remarks, one of the purposes of this is to keep offenders out of prison and to apply non-custodial sentences where possible. The other was by statutory means to make much greater efforts towards obtaining consistency of sentencing. That is surely a very important thing and that is what we all want. It is what the Home Secretary has proclaimed that he wants. This is a serious proposal to help to gain consistency of sentencing and I should have hoped for a more amenable response from the noble Earl.

The Earl of Caithness.

I agree that the consistency of practice of the magistrates' courts to which the noble Lord, Lord Henderson of Brompton, has just referred leaves a little to be desired. I frankly doubt very much whether the noble Lord's amendment would have the effect of solving that problem. As my noble friend Lady Macleod has said, the better approach is through the training of magistrates, local comparisons of practice, and so on. That is what we are encouraging and we are trying to solve the problem which the noble Lord has highlighted. We are doing it in a slightly different way.

Lord Henderson of Brompton

I am very glad to hear that. I think that this is a matter of public confidence and that public confidence in the sentencing policy of magistrates' courts and higher courts would be improved if this clause were inserted into the Bill.

I do not know what the feeling of the Committee is about this amendment. I myself would be quite prepared to withdraw it if the noble Earl would consider it. He has gone half-way by introducing Clause 111 into this Bill. I hope he will go the whole way, or at least consider going the whole way, by applying the principle in Clause 111 to adult offenders. In order to give him time for that due consideration, together with his ministerial colleagues, I now beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5 p.m.

Lord Irvine of Lairg moved Amendment No. 70: After Clause 44, insert the following new clause:

("Amendment of section 60(2) of the Criminal Justice Act 1967.

. In subsection (2) of section 60 of the Criminal Justice Act 1967 (release on licence of persons serving determinate sentences) there shall be inserted after the words "one third of his sentence", the words "or the specified period".").

The noble Lord said: I should like to say that this is a simple amendment but I could do so only because of its brevity. I am conscious that as I attempt an explanation it will lead into great complexity. This is because so much of our sentencing legislation, in the extraordinary way in which the so many diverse parts interact, is really of labyrinthine complexity. That might be the one proposition that I will succeed in making good by moving this amendment, but not I hope the only one. The only armour I can offer against the tedium of the detail on which I have to embark is the Committee's appreciation of the great importance of the subject.

The amendment is designed to remedy that which I hope the noble Earl, on due consideration, will agree is a major injustice to prisoners in custody on remand awaiting trial. Put at its shortest, the object of this amendment is to allow time spent on remand in custody to count towards the minimum period which a prisoner must serve before he becomes eligible for release on licence; that is, on parole. At present, time spent in custody on remand does not count in this way. The result is what I hope the noble Earl will consider is a major injustice; that is, that large numbers of offenders sentenced to terms of imprisonment in the 12 months-to-two-years range are deprived of any effective credit for the time that they have spent in custody on remand. Indeed, there are many other anomalies.

The legislative story is complicated. It all depends on the interaction of three aspects: remission, the credit against sentence that is given for time served on remand before sentence, and parole. Remission is governed by rule 5, as amended, of the Prison Rules 1964. The effect is that remission of one-third of a nominal term of a sentence of imprisonment of more than five days may be granted, and generally is, so long as the actual term of the sentence is not reduced to less than five days. That same rule applies to youth custody centres and detention centre orders.

Secondly, credit is given against the nominal term of the sentence for time spent on remand before sentence. That is governed by Section 67 of the Criminal Justice Act 1967. The effect is that the nominal term of a sentence of imprisonment is reduced by any period which has been spent in custody in connection with the proceedings relating to the sentence.

I give the Committee this example. The man who has spent three months in custody on remand and then receives a nine-month sentence receives full credit for his three months on remand. His actual term is six months; that is, nine months minus three months. His remission is half of the total of the actual term plus the period spent on remand; that is, half of nine months, which is four-and-a-half months. Therefore, he is out after serving one-and-a-half months of his sentence, having already spent three months in custody on remand. He has had full credit for three months spent on remand prior to sentence. Therefore, he is in no different a position with regard to time spent in custody from the position in which he would have been had he spent no time in custody on remand but had gone inside for nine months immediately after sentence. One-half remission would have been four-and-a-half months inside and then release.

I hope the noble Earl will consider the important point of parole or release on licence. This is governed by Section 60 of the Criminal Justice Act 1967, as amended, which states that the Secretary of State may release a prisoner on licence after he has served one-third of his sentence or the "specified period", whichever is the greater. The specified period now is six months. These are called Section 33 case prisoners or, more accurately, the Criminal Justice Act 1967, Section 61A as substituted by Section 33. He can be released after serving one-third of his sentence or six months, whichever is the greater.

I now deal with the injustices which flow from the fact that time spent in custody on remand does not count against a specified period of six months. It is best approached, first, from straightforward cases of imprisonment after sentence not preceded by any remand in custody.

The report of the Parole Board for 1985 shows that almost 80 per cent. of eligible Section 33 prisoners are released on licence. Therefore, for the great majority of persons who are sentenced to terms varying from 12 to 18 months' imprisonment, whether the judge says 12, 15 or 18 months makes no difference whatever. The sentencing judge would delude himself, as would the observing public, if they thought it would make any difference to the overwhelming majority of cases what the judge declared the sentence to be. All are eligible to be released on licence after serving whichever is the greater—one-third of the sentence or six months; that is, six months in all those cases where the sentence the judge has declared is 12, 15 or 18 months. In practice about 80 per cent. are dealt with in that way.

The injustice is that although time spent in custody on remand counts against sentence, it does not count towards the minimum qualifying period of six months of his sentence which he must serve before becoming eligible for parole. Therefore, let us take two cases: first, six months in custody on remand followed by a sentence of 18 months imprisonment. The six months in custody counts against the sentence so the actual term becomes 12 months. Against this he can expect remission of one-third of 18 months—that is, six months. Therefore, after a further six months in prison he comes out and he has been in custody 12 months in all.

Secondly, there is the example of the man who has been on bail for the same offence and is sentenced to 18 months. He has an 80 per cent. chance of being out on licence after six months. Therefore, the first man has been in custody for 12 months and the second for only six for the same offence. In fact one could multiply many examples and the injustice could be greater than that.

Let us take the man who has been sentenced to 15 months after he has been in custody on remand for three-and-a-half months. His actual term is therefore 11½ months. Remission of one-third of 15 months—five months—takes his remission to six and a half months. Though he becomes legally eligible for release on licence after six months, his licence period would be less than 30 days, but the Secretary of State has declared that periods on licence may not be less than 30 days. Therefore, he has to serve his period of six-and-a-half months on top of his three-and-a-half months in custody on remand. In effect, therefore, he is in custody for a total of 10 months, compared with his co-defendant, who was on bail and received the same 15-month sentence and who in all likelihood would be released on licence after only six months.

I could multiply these illustrations but I shall not do so because I am conscious of how indigestible is such material even in Committee. The result is that large numbers of offenders sentenced to terms in the intermediate sentencing bracket are either deprived of any effective credit or receive much less credit than they should for long periods of time spent in custody on remand due to the backlog of cases awaiting trial. I believe that the average waiting time for trial of those committed in custody is 10.1 weeks throughout the country, but in London it is as long as 15.9 weeks. If the public were fully conscious of the anomalies to which I have been calling attention, they would regard them as quite irrational, requiring correction by Parliament.

I ask the noble Earl to consider whether my amendment, simply expressed, could provide a remedy. As I said at the outset, I am conscious of the complexities and that even this Committee is perhaps not the best place to discuss legislative complexities of this order. Perhaps the noble Earl and his advisers will give thought to these anomalies and I should be happy to hear from him in any manner he chooses. I beg to move.

The Earl of Caithness

As the noble Lord, Lord Irvine, explained, this new clause would amend the Criminal Justice Act 1967 so that time spent remanded in custody would count towards the minimum qualifying period for parole. At present remand time is taken into account in calculating whether an offender has served a third of his sentence and may therefore be eligible for parole, but Section 60 of the 1967 Act operates in such a way that the period between the point when sentence is passed and parole eligibility is never less than the specified minimum, which is at present six months.

The reason for this is that there needs to be a reasonable period after sentence in which to assess whether the offender should be granted parole. It would be wrong to commence such an assessment during the period of remand because the accused person must be presumed innocent and may well be acquitted. The offender's reaction to his sentence and how he settles down to serving it are also bound to be factors which the parole process should take into account.

I recognise that, as the noble Lord said, the fact that time spent on remand does not count towards the minimum qualifying period can cause two offenders, with the same sentence, one of whom has had a period on remand and the other of whom has not, to become eligible for parole at different times. That has always been a feature of the parole scheme, but I agree that it has been accentuated by the reduction in the qualifying period. It was, among other things, to address apparent anomalies of that kind that my right honourable friend the Home Secretary set up the review of the parole system which has been mentioned already in our debates today.

I am sure that Mr. Carlisle's committee will want to take careful note of what has been said in this short but very useful debate. Perhaps the noble Lord was right when he said that this is not the Committee in which to make the change. We have such a committee—Mr. Carlisle's committee. I am sure that it will take careful note of what the noble Lord has said. I add only one observation. One of the criticisms which has been levelled at the reduced minimum qualifying period is that it allows too little time for an adequate assessment to be made on the basis of which a decision as to parole can be taken. It seems to me that the noble Lord's amendment might in a sense make matters worse, because an offender who had spent a significant period on remand would become eligible for parole at the point of sentence or very soon afterwards.

I must stop because I am already trespsassing on the Parole Review Committee's territory, but I very much hope that the noble Lord will agree with me that, irrespective of the merits, it would be premature to take his amendment further while the review is going on.

Before I finish I should like to say to the noble Lord how very nice it is to see him at the Dispatch Box for the first time. I give him a very warm welcome.

Lord Irvine of Lairg

I shall have to consider what the noble Earl has said, as I daresay he will desire to examine what I have said, in Hansard. Meanwhile I seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.15 p.m.

Lord Irvine of Lairg moved Amendment No. 71: After Clause 44, insert the following new clause:

("Amendment of section 67(5) of the Criminal Justice Act 1967.

.—(1) At the end of section 67(5) of the Criminal Justice Act 1967 there shall be added—" and (c) to orders made under section 53(2) of the Children and Young Persons Act 1933 (detention of juveniles), as it applies to sentences of imprisonment.

(2) In paragraph (b) of section 67(5) of the Criminal Justice Act 1967 the words "as it applies to sentences of imprisonment" shall be omitted.")

The noble Lord said: The noble Earl has been good enough to indicate to me that it would be of assistance if I spoke not only to this amendment but at the same time to Amendment No. 72. That I am happy to do.

On Amendment No. 71 the position is that detention under Section 53(2) of the Children and Young Persons Act 1933 was originally intended to provide for juveniles convicted of a limited range of extremely grave crimes. Its scope was widened by the Criminal Justice Act 1961 to apply to any crime punishable with 14 years' imprisonment or more. The gradual process of increasing maximum sentences since that time has brought more offences within its scope. It has been used more frequently in recent years to deal with juveniles convicted of moderately serious offences such as burglary as a result of the restriction of youth custody in such cases to a maximum of 12 months.

The courts have comparatively recently approved the use of the power in cases in which a sentence of two years would be appropriate for an older offender. The term of detention is fixed by the court. The offender can be released at any time during the sentence on licence but he does not receive credit for time spent in custody before conviction or sentence, nor does he receive remission of one-third of the sentence. The effect of the amendment is that time spent in custody, which would count against a detention centre order or a youth custody sentence, will also count against this class of detention for serious or moderately serious crimes.

I urge the noble Earl to say that he feels able to give serious consideration to this proposal. I am conscious that he has indicated that he is not minded to favour this amendment but that he is ready to consider Amendment No. 72, which I am about to move. However, I hope in the light of what he has said that he will feel able to consider Amendment No. 71.

In the light of the indication I have received about Amendment No. 72 I can take it very shortly. The effect is that time spent away from home in local authority care in such an establishment should count towards a youth custody sentence or, having regard to Amendment No. 71, an order under Section 53(2) of the Children and Young Persons Act. Because this time does not count, the Court of Appeal has said that judges should take this period into account in imposing youth custody sentences or orders for detention under Section 53 of the Children and Young Persons Act. The effect of this amendment would be to make that automatic and to relieve the judge of the responsibility for remembering what in the sentencing context is an unusual detail that he could very well overlook.

It may be that because of that consideration the noble Earl has indicated he is willing to consider this amendment. However, in the light of what I have also said on the previous amendment I hope that he will likewise feel able to consider that.

Lord Windlesham

I support the proposal that this group of young offenders who have been convicted of serious offences and sentenced under Section 53 of the Children and Young Persons Act 1933 should be considered by the parole system review which is now taking place. The position in which these young people are placed is markedly less favourable than other convicted offenders—this was not brought out in the speech of the noble Lord moving these amendments—because there is no entitlement to parole or remission. They are sentenced under old legislation which preceded both the entitlement to remission and the parole scheme. These youngsters will have been convicted at any age from the age of criminal responsibility upwards of committing offences of homicide and other grave matters.

The Home Secretary may refer such cases to the Parole Board at any point in the sentence up to the final date when the sentence expires. He is not required to do so at any stage. Sometimes cases will be referred at the one-third point, in other words the stage at which they would have been reviewed had a young offender been sentenced and eligible for a period of youth custody. Remember that some of these children are sentenced from the age of 12 onwards, which may be too young to incur liability for youth custody. They may be detained in community homes or in the admirable youth treatment centres. Reports may indicate that it would not be wise for them to be released from these institutions during the period of their maximum sentence. The result is that in certain instances—and I have reviewed numerous cases myself with my colleagues on the Parole Board—we see a young person who has been sentenced under this legislation, for example to not more than five years' detention, who has no entitlement to parole or to remission and who may serve the full period of five years. That is a disproportionately long period compared with what would be the case if the sentence had been one of youth custody. The Parole Board will be asking the Carlisle committee to review the provisions of Section 53 of the Children and Young Persons Act in order to see if some statutory entitlement might be made for early release in suitable cases.

The concept behind this Act was one of treatment, as with Borstal training. Hence the justification for detention up to a maximum period. But practice has changed so much over the last 50 years or so, that these young people are at a disadvantage which I believe is no longer justified.

The Earl of Caithness

We have some sympathy with the objectives of these two amendments, but see difficulties in each, which perhaps I may explain to the Committee. Amendment No. 71 would ensure that time spent on remand in custody by a juvenile who was subsequently sentenced to be detained under Section 53(2) would count towards the term of the sentence. On the face of it, it seems sensible that the juvenile should, as it were, get credit for the time spent on remand. But there are practical obstacles.

Section 52(2) sentences, although determinate, are unlike the other custodial sentences available for juveniles in certain respects, most importantly as regards the arrangements for release. For the other custodial sentences, time spent on remand in custody and remission are taken into account in calculating offenders' earliest date of release. For Section 53(2) sentences, there is no specified earliest date of release, and the date of release is determined in the light of periodic reviews of the offender's progress. As a consequence, allowance for time spent on remand in custody would have nothing on which to bite except the latest date of release, which is usually no more than a nominal target. We therefore doubt whether counting remand time in the way proposed in Amendment No. 71 would serve any practical purpose. But this is a matter which bears on the review of the parole system, to which reference has been made earlier in our debates today. In view of what has been said in this short debate, I shall certainly draw the matter to the attention of the Carlisle committee, and I hope that the noble Lord will be content to leave it on that basis.

My noble friend Lord Windlesham said that his committee will also draw it to the attention of the Carlisle committee, so that this is not a matter which will be lost if the noble Lord withdraws his amendment.

Amendment No. 72 raises an issue which the Magistrates' Association have already put to us. Remand to local authority secure accommodation is of course not directly comparable with a full custodial remand. It does, however, involve deprivation of liberty and quite severe restrictions on what the remanded young offender can do.

When this matter was debated briefly in another place during the passage of the earlier Bill, we agreed that there is a good case in equity to be made for allowing time spent in local authority secure accommodation to count towards any eventual custodial sentence. It would clearly be wrong if the young offender, whose case was considered sufficiently serious exceptionally to justify remand in custody, were to benefit, while his co-defendant, who spent the same remand time in secure care and perhaps received the same sentence, did not.

The question is how one achieves that result. In the guidance the Home Office issued after the enactment of the Criminal Justice Act 1982, the courts were encouraged, in deciding on the right sentence, to take into account the length or time of a remand in care, its circumstances and whether it involved a placement in secure accommodation. Concurrently DHSS guidance to local authorities encourages them to provide the courts with a written account of time spent on remand in care, paying particular attention to time spent in secure accommodation.

The reason we adopted the non-statutory approach, through guidance, rather than simply providing in statute that remand time in secure care should count towards sentence, is this. Secure accommodation is not used in quite the same way as custodial accommodation. When someone is remanded in custody, that person remains there until his or her next appearance in court. However, the use of secure accommodation is only one of the options open to a social services department to whom a juvenile is remanded pending trial. Quite sensibly, local authorities resort to the use of secure accommodation as sparingly as possible. The same child may be moved in and out of secure accommodation depending on its availability and how necessary its use is perceived to be at different times during the period of remand. The consequence is that the calculation is not nearly as clear-cut, and our fear has been that a strict statutory requirement would be difficult for the courts and the local authorities to discharge, and could give rise to argument.

For these reasons we have hesitated to accept the cogent arguments of the Magistrates' Association and others for putting the existing informal practice into statutory form. In the debate to which I have referred in another place, my honourable friend undertook to look again at the existing arrangements. We have done so and our impression is that local authorities are improving their means of providing the necessary information, and that for the most part the arrangements are working reasonably well.

In the light of that I am therefore willing to take Amendment No. 72 away, and to reflect further on whether the obstacles to a statutory requirement are really insuperable. I could not accept the amendment as it stands because it goes somewhat wider than secure accommodation. But we shall look at the case for accepting a more limited amendment confined in that way.

Lord Irvine of Lairg

I am grateful to the noble Lord, Lord Windlesham, for his helpful speech. His knowledge and experience on these subjects is so much greater than that of any of the rest of us. I am grateful too to the noble Earl for the sympathies that he has expressed for the thoughts that lay behind these amendments. On Amendment No. 71 I gather that the Carlisle committee may gain some assistance from the discussion in this Committee that the amendment has produced. I am pleased to hear that the noble Earl will consider Amendment No. 72 further and perhaps produce some more limited version. In these circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 72 not moved.]

Clauses 45 to 50 agreed to.

Lord Elwyn-Jones moved Amendment No. 73: After Clause 50, insert the following new clause:

("Assessment of fines in proportion to means.

. (1) Section 35 of the Magistrates' Courts Act 1980 shall be amended by inserting the words "whether small or substantial" after the words "the means", and by inserting at the end of that section the words "and shall impose a fine which shall comprise a proper proportion of those means."

(2) The following section shall be inserted after section 34A of the Powers of Criminal Courts Act 1973—

"Fixing amount of fine.

34B. In fixing the amount of a fine, the Crown Court shall take into consideration among other things the means, whether small or substantial, of the person on whom the fine is imposed so far as they appear or are known to the court, and shall impose a fine which shall comprise a proper proportion of those means.").

The noble and learned Lord said: This amendment, which I understand is grouped with Amendment No. 77 which the noble Lord, Lord Henderson, will move in due course, is intended to give consideration to what has been called "the great fines anomaly". My attention has been drawn to it by the able and experienced Clerk of the Justices of Bedwellty, but in replying to the debate, I shall not insist that the noble Earl repeats that famous place.

The Earl of Caithness

The noble and learned Lord would be horrified if I tried to do so.

5.30 p.m.

Lord Elwyn-Jones

The matter arises in this way. Section 35 of the Magistrates' Courts Act 1980 reads, In fixing the amount of a fine, a magistrates' court shall take into consideration among other things the means of the person on whom the fine is imposed so far as they appear or are known to the court". That would seem to be a fairly straightforward matter. A fine after all is a punishment and for a punishment to fall evenly it should vary according to the nature of the crime and to the means of the defendant. But unhappily some Court of Appeal decisions have apparently resulted in the position that, while a fine may be reduced because a defendant does not have the means to pay the assessed amount, it cannot be increased even if he is so wealthy as to find the assessed amount to be so trivial as to be no punishment to him at all.

An example of what has apparently occurred has been given by Mr. John Jenkins. An Arabian prince, a nephew of the King of Saudi Arabia, arrived at court, apparently in a chauffeur-driven Mercedes, and gave an address in Belgravia. He was fined £250 for possessing cocaine and cannabis—a sum which I am advised is about the norm for an average wage—a grave and serious offence. One wonders where justice lies when a man can buy himself out of criminal responsibility by paying a sum that hardly registers in his bank account.

The matter could well be disposed of by a further decision of the Court of Appeal, but one would have to await for that to arise. The matter arises by reason of decisions in two cases—the Queen v. Fairbairn in 1980 and the Queen v. Clemenson in 1985—which make the case for what is apparently present fining practice.

Fairbairn's judgment says: In principle the amount of the fine should be determined in relation to the gravity of the offence"— Fine, but then— Only then should the offender's means be considered to decide whether he has the capacity to pay such an amount". In Clemenson's case the decision apparently is: The proper approach is to decide what is appropriate for the offence and for the offender, and then to consider, having considered what prima facie is an appropriate financial penalty, whether he or she is capable of paying a penalty of these proportions". One can go down, but apparently never up, to meet the means of a person in a better position to pay a fine appropriate to the offence.

The matter has been put, if I may say so with great respect, accurately in a judgment of the noble and learned Lord, Lord Scarman, in the Queen v. Jamieson—-a 1975 Court of Appeal case. The binding judgments are of course the most recent in the Court of Appeal. The noble and learned Lord said: There are two other principles to be observed when imposing a sentence such as this"— it was a fine— The first is that sentence must always be linked with the particular circumstances of the offender as well as the particular circumstances of the offence. He wisely added: Indeed, a sentence derives its character and justice or injustice from a combination of those two sets of factors". The matter has been put equally clearly and, if I may say so again with respect, equally accurately, by the noble and learned Lord, Lord Roskill, in the Queen v. Stephens in 1975: It is axiomatic that when fines are imposed the scale of the fine must be related to the defendant's means". In another case it has been said: It is right of course that the judge should have had regard to the means of the appellant in order to ensure that the fine did have the effect of punishing him". It is to deal with that apparent judicial confusion that I have put down this amendment which would put the matter beyond peradventure. I am bound to say that I am doing it tentatively, because it may well be that the Home Office has decided upon this already or may have found some other way of dealing with what seems to be the great fines dilemma, if indeed it be what it seems to be, as I think it is.

The proposal made in the amendment is to put the matter beyond peradventure: Section 35 of the Magistrates' Courts Act 1980 shall he amended by inserting the words 'whether small or substantial' after the words 'the means', and by inserting at the end of that section the words 'and shall impose a fine which shall comprise a proper proportion of those means'.". The section would then read: In fixing the amount of a fine, a magistrates' court shall take into consideration among other things the means, whether small or substantial, of the person on whom the fine is imposed so far as they appear or arc known to the court". In relation to the Crown Court, it is proposed that a section shall be inserted after Section 34A of the Powers of Criminal Courts Act 1973: In fixing the amount of a fine, the Crown Court shall take into consideration among other things the means, whether small or substantial, of the person on whom the fine is imposed so far as they appear or are known to the court …". On giving the matter further reflection, I am content to stop there and not conclude with the rest of the amendment.

In a sense, this is a probing amendment. It may be that something has been missed out by my honourable friend from Bedwelty of which neither he nor I are aware. So that the matter can be clarified, I beg to move.

Lord Denning

When I read the amendment, so well put by my noble and learned friend, I wondered why on earth it was necessary. The words of the section as they stand are perfectly clear: The Crown Court shall take into consideration among other things the means of the person on whom the fine is imposed so far as they appear or are known to the court". There is no need for all these extra words.

However, my noble and learned friend shows they have been getting into trouble in Wales. I know Mr. John Jenkins. He is one of the best of the justices' clerks in Wales. If he is troubled by this, it is right for my noble and learned friend to bring the matter before the Committee.

I should have thought that the words were unnecessary. The words of my noble and learned friends Lord Scarman and Lord Roskill, which my noble and learned friend Lord Elwyn-Jones has quoted, should be enough. A circular from the Home Office or an authoritative statement should be issued to show the magistrates that they have a complete discretion in the matter and should take into account the means, whether substantial or small, and all circumstances and impose a fine which is a proper proportion of those means.

There is no need for the amendment, but there is a need for some clarification by the proper authority so that the magistrates in Wales can do what is right.

Lord Elwyn-Jones

I just wish to add that I have not suggested that it was any personal responsibility of the noble and learned Lord, Lord Denning, who was Master of the Rolls and in charge of these courts at the material time.

Lord Renton

I too doubt the need for this proposed provision. Apart from whether there is a need for it, the method seems to produce its own problems. Requiring in sub-paragraphs (1) and (2) that the court: shall impose a fine which shall comprise a proper proportion of those means gives rise to difficulties. It indicates that there should be great precision in the fixing of the proper proportion. One cannot begin to be precise about that matter until one has had a full and precise inquiry as to the means.

People's means vary. Those whose means depend, for example, upon the state of the stock market have means which vary from day to day and almost hour to hour. It would be a clever rich man who could tell you how many thousands of pounds he was worth at any particular moment.

But I see a further problem arising from what is proposed. Even though the court were to arrive at what it considers to be a proper proportion of those means, that would not necessarily reflect what should be the amount of the fine bearing in mind the nature and seriousness of the offence and bearing in mind particularly the maximum penalty which has been fixed by Parliament. Parliament fixes a maximum penalty in nearly all cases. Of course there are occasions when there is no limit fixed by statute but in most cases which come before the magistrates there is a limit.

Therefore, what the magistrates do, and I think it is all that they should be expected to do, is to consider, first, the statutory maximum, and, secondly, what proportion of that maximum would be the appropriate punishment bearing in mind the nature and seriousness of the offence; and they do not ignore, as the noble and learned Lord, Lord Denning, has pointed out, the means of the person concerned in a broad way. I would not expect my noble friend on the Front Bench to regard these proposals with much sympathy.

Lord Boyd-Carpenter

I would only add a word to what my noble friend Lord Renton has said. I am bound to say that I am a little disturbed at the task that this would impose on the courts. Somebody appears before them and they are asked to determine what fine would represent a proper proportion of that person's means. How on earth are they to find out what those means are? Are they to ask for a sort of income tax return? Indeed are they to ask the Inland Revenue, in breach, I should have thought, of its duty, to hand over information about this?

It seems that all a court can do is to form sensibly a judgment from the look of the person. If you are going to have a thing like this put in, then the advice that everyone will give to someone appearing before a court would be to put on a pair of old jeans, torn at the knee, and a dirty old sweater and look as poor as possible when they make their court appearance.

There is a further point. What is to happen about an appeal against sentence if the magistrates say, "You shall pay so much because it is a proper proportion of your means"? Is it to be open then to the person concerned to go on appeal and produce the whole detail of his means so as to show that it has got it wrong? If he does show that, what possible way has the prosecution of proving him wrong?

This imposes a quite unnecessary, elaborate and complicated duty on the courts, whereas one knows perfectly well that they adopt a generally sensible line and can form a reasonable idea as to the financial background of those in front of them and make a judgment. But when you ask for a correct proportion of their means you are putting a duty of precision on them which I should have thought was impossible to discharge.

Lord Simon of Glaisdale

Not even my affection for my noble and learned friend Lord Elwyn-Jones can prevent my saying that this amendment seeks to insert in the statute book a mass of quite unnecessary verbiage when it is already too full of such matter.

Lord Henderson of Brompton

I know that my Amendment No. 77 has been grouped with this amendment, but it might be more convenient to speak to it separately if only because it is not concerned with means but with disposable income. I think they are separable and would be better treated separately.

Lord Elwyn-Jones

I respectfully agree. Let me say now that I abandon the proportionality part of the drafting.

5.45 p.m.

The Earl of Caithness

I have a considerable amount of sympathy with the amendment proposed by the noble and learned Lord, Lord Elwyn-Jones. The fine is the most commonly used of all our penalties and it is important that it should be fully and properly used as a penalty. Dealing with his amendment, this raises the interesting question of whether the court should have a discretion to impose a more severe fine on a wealthy defendant just as it can, and should, impose a smaller fine on a poor defendant.

Undoubtedly a modest fine is less of a penalty to a rich offender than a poor one, and I can see the argument that there is some injustice in that. But I do not think that we can easily overturn our present system of fines. This is based on the principle that the gravity of the particular offence is assessed in financial terms, perhaps £50, £100, or £200, and then the courts look at the means of the offender to see whether he can afford it or if the level of the fine needs to be reduced.

Each offence has a maximum financial penalty which the court may not exceed in fining anyone, because to do so would be out of proportion to the offence. A purely means-related system would undermine this approach. It would be possible theoretically for someone to be fined hundreds of pounds for a modest offence such as dropping litter just because he was rich. Financially it would be fairer, but does not the noble and learned Lord, Lord Elwyn-Jones, wonder whether it would accord with our general notions of justice for, say, a rich offender to be fined for dropping litter many times more than a poorer one who committed offences of deliberate dishonesty? I would defer judgment on that, but I think the question needs to be addressed. There is arguably a point where justice and proportionality to means begin to pull against each other, if not conflict.

Although discussion of the subject of the second amendment overlaps, if the noble Lord, Lord Henderson of Brompton, does not want to discuss it now I shall not, but some of the points that can be made on Amendment No. 73 can clearly be made on the noble Lord's amendment, and I fear that I shall have to repeat myself at a later stage. Meanwhile, with the support that I seem to have from all around the Chamber, I hope that the noble and learned Lord will withdraw his amendment.

Lord Elwyn-Jones

I certainly give the withdrawal my support. It was nevertheless right that the matter should be raised. If the case of the Arabian prince turning up in his Rolls-Royce and getting fined £250, or whatever it was, is grotesque, there is a need for the matter to be looked at again. It is not a frivolity. It is capable of creating a grave sense of injustice. But I am happy that in the circumstances the shot that has been made from Bedwellty and Llanelly should not be pursued.

Amendment, by leave, withdrawn

Clause 51 agreed to.

Lord Stanley of Alderley moved Amendment No. 73A: After Clause 51, insert the following new clause:

("Amendment of Game Laws (Amendment) Act 1960.

. In section 41(1) of the Game Laws (Amendment) Act 1960 after the words "detain any game or rabbits, or" there shall be inserted the words "any dog or" and after the word "possession" there shall be inserted the words ", or any vehicle found in his charge".").

The noble Lord said: This amendment would bring the Game Laws (Amendment) Act 1960 in line with the Deer Acts and indeed the Fisheries Protection Act, both of which allow property that is used when committing an offence to be confiscated by the police and indeed the courts. At the moment so far as the Game Laws (Amendment) Act is concerned only the weapon may be confiscated and not the vehicle or the dogs used to commit an offence.

I realise that Section 43(1) of the Powers of Criminal Courts Act 1973, to be replaced in part by Clause 59 of this Bill, widens the powers of confiscation to the magistrates' courts but only up to Level 5, and I suggest that in this case the level would only be 4, which is not sufficient to confiscate a car—except, of course, possibly mine.

However, the powers contained in Clause 59 allow confiscation in only two instances: first, if the property has already been lawfully seized; secondly, if the property was in the person's possession or under their control when apprehended. The Committee will appreciate that the first case cannot apply. As regards the second case, it will be difficult, if not impossible, for the courts to be sure that it was that particular vehicle, or those particular dogs, that were used in the offence. In any event, I am advised that the powers do not extend to dogs. In practice it is not possible for the courts so to do, and I could quote specific cases if the Committee wished but I fear the displeasure of wasting time.

I conclude by giving three reasons why I hope the Committee will accept this tidying up measure. First, poaching, particularly with lurcher dogs, is not done by the traditional village poacher with whom I suspect many of us have a love-hate relationship. This type of poaching is carried out by gangs of usually violent people who inflict great cruelty and often train their dogs for pursuits other than hares or rabbits—not least deer—cattle and sheep.

Secondly, this Chamber and the Government are always asking for better, cheaper and more appropriate punishment for crime rather than gaol sentences. I could not agree more because the few contacts that I have had with prison leave me less than enthralled. I suggest that confiscation of the vehicles and the dogs is a far more effective punishment than is a gaol sentence. Moreover, the confiscation and punishment will be immediate, and I am sure that every member of the Committee will agree that punishment for whatever crime is much more effective if carried out immediately.

Thirdly, this kind of trespass is to the detriment of all who want to enjoy our countryside, particularly those who wish to walk in it. I hope therefore that my noble friend will accept this amendment as a small but particularly helpful addition to providing an appropriate and effective remedy to meet this increasingly tiresome and dangerous problem. I beg to move.

Lord Renton

I support the amendment moved by my noble friend. However, I hope that he will not mind my saying that confiscation is not normally regarded as a form of punishment or a punishment in addition to the normal punishment. Confiscation is intended to prevent the crime from being committed again by the same people. That does not invalidate my noble friend's argument. I trust that I am not presuming too much when I say that I hope my remark clarifies the case he has put forward and perhaps strengthens it.

Lord Denning

This amendment deals only with the seizing of the dog or the vehicles. The next clause deals with the forfeiture. If it is to be carried its whole length it should go into the following clause requiring forfeiture of the dog or the vehicle.

The Earl of Caithness

We move from courts and prisons to some of the individuals who may pass through them. I share the concern over the disgraceful activities of poachers which has prompted this amendment. I must advise, however, against adoption of the amendment.

As my noble friend has explained, the Game Laws (Amendment) Act 1960 provides, in Section 4(1), for the seizure by the police of items such as guns, nets and snares which are in the possession of a person apprehended on suspicion of poaching. Items so seized can, on the order of the court, be forfeited upon the conviction of the offender, by virtue of Section 4(2) of the 1960 Act. My noble friend seeks to add dogs and vehicles to the list of items which may be seized, and forfeited, under the 1960 Act.

The seizure by the police of evidence of an offence is provided for in Section 19 of the Police and Criminal Evidence Act 1984. By virtue of this general provision if the police believe that a dog or a vehicle in the possession of a suspected poacher is likely to be needed as evidence in any proceedings they may seize it. The Committee will recall, however, that the intention of this part of the Police and Criminal Evidence Act 1984 is that the police will only seize evidence where this is strictly necessary, for example to prevent the deliberate destruction of the item concerned.

The Police and Criminal Evidence Act was passed only after the most painstaking examination of the difficult issues of police powers and the freedoms of the individual citizen. It is clearly right that the police should have power to seize any relevant article of evidence and this is provided for under strict controls in Section 19 of the 1984 Act. To go further than that and give the police power to seize property which is not required for evidential purposes would be to go contrary to the letter and spirit of the Police and Criminal Evidence Act. I believe that would be most undesirable, and many members of the Committee will share that view. The 1984 Act already gives the police the seizure powers which they need for the investigation of offences and any subsequent prosecution, whether in respect of poaching or any other offence. That point was well made by my noble friend Lord Renton, and I hope that my noble friend Lord Stanley will be reassured by that.

However, I can give my noble friend a more encouraging response as regards forfeiture. Clause 59 of the Bill which we are now considering provides for an important extension of the forfeiture provisions in Section 43 of the Powers of Criminal Courts Act 1973. If this clause is passed, when convicting a poacher the courts will, subject to certain financial limits, be able to offer the forfeiture of items either seized by the police or in his possession or under his control when he was apprehended.

I hope that my noble friend will take some reassurance from that. I should like to reflect further on what he has said, look at it again in the Official Report and perhaps come back to him between now and another stage.

Lord Stanley of Alderley

I am grateful to the Minister for what he said in that last sentence. I am also grateful for the intervention of my noble friend Lord Renton, and I fully take his point.

I should like to pick up the odd point made by my noble friend. First, he drew to my attention the financial limit. As I tried to point out in my first address, the snag is that they will be able to do so only up to Level 4. I am sure that the noble Lord, Lord Mishcon, will know but I believe that Level 4 is £1,000 or £1,100. Most cars are worth more than that amount so that case will not apply.

My noble friend quoted Section 19 of the Police and Criminal Evidence Act. I should like to put on record the following points so that he may consider them between now and Report stage. First, I am concerned as to whether a dog is "any thing". I suppose that it must be but I am told that it might not be "any thing". Secondly the seizure must be on premises. Section 23 of the Act describes premises. I am aware of this matter because my noble friend was kind enough to tell me that he might quote this against me and so I bothered to look it up. In Section 23 of the Act "premises" is described as a place. I am advised by my lawyers that a field is not a place, so that matter needs looking into.

My noble friend made the more important point that Section 19 of the Act provides only for seizure as evidence, so at the end of the day the courts will not be able to confiscate the vehicle or the dogs despite Clause 59 of the Bill, even if they wanted to do so. The point of my amendment is to give the courts more discretion. So I do not think I can entirely agree with my noble friend but I am very grateful to him for looking at it. Perhaps I may come back to him between now and the Report stage to see whether we can get this matter right because I feel, or hope, that most Members of the Committee will agree that to give this extra power to the magistrates' court indeed helps them in certain circumstances. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 52 [Increased periods of imprisonment for default]:

6 p.m.

Lord Harris of Greenwich moved Amendment No. 74: Leave out Clause 52 and insert the following new clause:

("Reduced periods of imprisonment, for defaults on fines.

. The following subsection shall be substituted for section 31(3A) of the Powers of Criminal Courts Act 1973— (3A) Subject to subsections (3B) and (3C) below, the periods set out in the second column of the following table shall be the maximum periods of imprisonment or detention under subsection (2) above applicable respectively to the amounts set out opposite thereto.

TABLE
An amount not exceeding £50	5 days
An amount exceeding £50 but not exceeding £100	7 days
An amount exceeding £100 but not exceeding £400	14 days
An amount exceeding £400 but not exceeding £1,000	30 days
An amount exceeding £1,000 but not exceeding £2,000	45 days
An amount exceeding £2,000 but not exceeding £5,000	3 months
An amount exceeding £5,000 but not exceeding £10,000	6 months
An amount exceeding £10,000 but not exceeding £20,000	12 months
An amount exceeding £20,000 but not exceeding £50,000	18 months
An amount exceeding £50,000 but not exceeding £100,000	2 years
An amount exceeding £100,000 but not exceeding £250,000	3 years
An amount exceeding £250,000 but not exceeding £1 million	5 years
An amount exceeding £1 million	10 years."")

The noble Lord said: I beg to move this amendment which would reduce the maximum periods of imprisonment for defaulting on fines of up to £10,000. I realise that we shall be discussing the question of fines in the next amendment, but most of us accept that imprisonment must stay as the last resort for those who wilfully will not pay them. I think that that is generally accepted, though obviously it is incumbent upon courts to avoid imposing sentences of imprisonment if possible.

I think we also accept that the threat of imprisonment can induce payment by some offenders who have hitherto resisted paying their fines. There is a lot of evidence to show that some people wait until the last possible moment and then, spurred by the realisation that if they do not pay the fine they will go to prison, they pay up. However, without a great deal of difficulty I would argue that in those cases it is the prospect of imprisonment, and not the precise period involved which is the most important consideration.

That being so, I do not believe that anything would be lost through a reduction in the length of time served for fine default. Yet an amendment on those lines could have some effect in reducing the average daily number of fine defaulters in prison. Last year on any one day there was an average of 511 people in prison for fine default, which is roughly the population of a medium sized prison.

Part of the case for change—and this is not a particularly radical change—was demonstrated by what was done in 1977 when Parliament was looking at what became the Criminal Law Act of that year. It is always a temptation to go down memory lane, but on that occasion I remember that Mr. Brynmor John who was the Junior Minister responsible for the criminal law department of the Home Office and I,—I then occupied the same position as does the noble Earl today—decided to cut the maximum periods of imprisonment for fine default. As a result, on the 30th June 1978, which was just about a year after that particular piece of legislation had been placed on the statute book, one saw a 25 per cent. reduction in the number of fine defaulters in a single year. Since then there has been a further welcome decrease in the average length of time served by fine defaulters. This amendment will reinforce that trend.

As I indicated, last year the average daily population of fine defaulters was just over 500, but that constituted 11 per cent. of all prisoners who were serving sentences of six months or less. Since such prisoners normally serve their sentences in local prisons, where the present overcrowding is at its worst, I believe that an amendment along these lines would have a significant effect—or at least an effect—in relieving pressure in just that part of the system that at the moment is experiencing the greatest difficulty. I beg to move.

The Earl of Caithness

The noble Lord, Lord Harris of Greenwich, has very rightly drawn the attention of the Committee to the problem of fine defaulters in prison. The need to hold some 500 fine defaulters every day is a strain which the prison system could well do without. The noble Lord proposes shorter periods of custody for defaulters as a practical solution. His amendment would certainly have some effect, albeit a marginal one, on the prison population. His suggestion therefore merits very careful consideration. However, having considered it, there are two reasons why I am not persuaded that it is the right path to go down.

The daily population of fine defaulters is a great strain on prison resources, but an even greater one are the numbers coming in and out of the system. Whether a prisoner has seven days or five days to serve, he still has to go through reception procedures when he arrives and discharge procedures when he leaves. That is the biggest demand on prison manpower; and of course it hits hardest at the overstretched local prisons. So we need to bend our efforts toward keeping fine defaulters out of prison altogether, wherever possible. I am sure that the noble Lord will agree with that.

The starting point is to ensure that fines are pitched at a level which the offender can reasonably be expected to pay. The Home Office issued a circular to the courts in 1984, recommending that some inquiry as to the offender's income and financial commitments should be made before the level of the fine to be imposed is decided. The second step is to ensure effective enforcement procedures and options short of custody. Other options are available, and the courts are required to consider each of them before resorting to custody. The Committee will see that we have spelt out these options on the face of Clause 53. The 1984 circular urged courts to be as flexible as possible in considering these measures. I believe that such steps, which aim at the root of the problem, are proving successful. In 1986 there were 1,300 fewer fine defaulters received into prison than in 1985. The average daily population of fine defaulters was 10 per cent. lower.

Why, then, the Committee may ask, should we not adopt the noble Lord's proposal as an additional useful measure? My concern is for the effectiveness of the fine as a penalty. The Government have made clear that they support wholeheartedly the Court of Appeal's view that for the less serious offences custody should be avoided whenever possible. That means that the courts must have confidence in the effectiveness of non-custodial options. The fine is very widely used: 175,000 people were fined for indictable offences in 1985. The courts must be confident that fines can be enforced, and that sufficient sanctions are available to deter potential non-payers. It would be extremely regrettable if the courts felt obliged to resort to other sentences—including perhaps custodial ones—in cases where they now impose a fine. Less severe sanctions might lead more offenders to regard a short period of custody as "worth it" in order to write off a relatively large sum. That would result in the fine falling into disrepute. I do not think that we can afford to take that risk.

So there is very little between the noble Lord, Lord Harris of Greenwich, and the Government on that point. But we think that the level of fine is drawn correctly at the moment. To move in the direction suggested by the noble Lord could lead to some rather nasty repercussions which might be more damaging to the prison service and to the interests of justice than the arrangement that we have at the moment.

Lord Harris of Greenwich

As courteous as I always try to be in this Chamber, I am nonetheless bound to say that that was one of the least persuasive arguments that I have heard delivered on behalf of the Home Office during this debate. The noble Earl told us that there was very little between us. I rejoice to hear it. However, he went on to say that one of the reasons for his concern was that it might make magistrates less likely to impose a fine and might drive them towards imposing a sentence of imprisonment. I wonder whether he consulted the Magistrates' Association before he made that observation and whether he represents their views.

I should be surprised if such was the magistrates' view because they made no such representations to the Labour Government in 1977 when a far more substantial change was made in the relationships between fines and periods of imprisonment. May I ask him whether magistrates have been invited to give a view?

The Earl of Caithness

As the noble Lord knows full well, we are in constant touch with the Magistrates' Association but we do not necessarily always agree with them.

Lord Harris of Greenwich

No, but as the noble Earl was putting forward the argument that magistrates would be less likely to fine an offender and might be more likely to send him to prison, I at least assumed that he had been in contact with the Magistrates' Association before making such an observation. Apparently, he has not been in contact with them. I shall not press this amendment today. Quite bluntly, I think that the argument he has put forward is most unimpressive and we will certainly look at it again.

Let me just say this in as even-tempered a way as possible. When the Government Whip tells us that we are not making enough progress on this Bill, he might sometimes consider whether he should have a talk with some of his colleagues to see whether they could take a rather more accommodating position on amendments when they argue that there is very little between the Opposition and the Government. What has been said today is unpersuasive.

I think the noble Earl admitted that the amendment would have some effect on the size of the prison population. The only effect of resisting this amendment is to ensure that marginally—I would not put it higher than that—conditions in local prisons will remain slightly more squalid than they otherwise would be. On the basis of that, for the moment at least, I beg leave to withdraw the amendment, though as I have indicated I regard this constant opposition to all proposals of this sort as most depressing.

Amendment, by leave, withdrawn.

Clause 52 agreed to.

Clause 53 agreed to.

Lord Henderson of Brompton moved Amendment No. 75: After Clause 53, insert the following new clause:

("Court imprisoning a fine defaulter to give reasons for rejecting all other enforcement options.

. The following section shall be inserted after section 77 of the Magistrates' Courts Act 1980—

"Court's reasons for rejecting enforcement options.

77A— (1) A magistrates' court may not issue a warrant of commitment for a default in paying any sum adjudged to he paid by the conviction unless it has considered or tried all other methods of enforcing payment of the sum and is of the opinion that they are inappropriate or unsuccessful.

(2) Where a magistrates' court issues a warrant of commitment for default in paying any sum adjudged to be paid by the conviction, it shall state in open court the reasons for its opinion that all other methods of enforcement of payment of the fine are inappropriate or unsuccessful.

(3) A magistrates' court shall cause a reason stated under subsection (2) above to be specified in the warrant of commitment and to be entered in the register."").

The noble Lord said: I am quite pleased that this amendment should follow so hard on the heels of the amendment which the noble Lord, Lord Harris, has just moved without any success, because in the course of discussing that amendment the noble Earl said that it was important to keep fine defaulters out of prison wherever possible. This amendment is designed to do just that and for that reason I expect a sympathetic reply from him.

What the amendment does is to impose a duty on the magistrates' courts only—I am happy to say not all courts; otherwise I would incur the wrath of the noble and learned Lord, Lord Denning—to give their reasons for rejecting all other enforcement options before imposing a sentence of imprisonment on a fine defaulter. For the life of me I can see no reason why this most reasonable proposal should not he accepted by the Government.

The noble Earl has told us about the immense amount of work caused to the prison authorities by the large number of fine defaulters who go to prison at the moment. In absolute numbers there were over 19,000 in 1986. They may not serve very long, but I ask the Committee to think of the extra work caused to the prison authorities by the 19,000 receptions in terms of processing each offender—not only the receptions but also the discharges and the paper work. That is very substantial, quite regardless of the length of stay of the prisoner.

Lady Howe was chairman in 1981 of a NACRO working party on fine defaulters. It said that although committal to prison must remain, as we all agree, a sanction of last resort, all other means of enforcement should be fully considered first. That working party under Lady Howe recommended precisely what this amendment proposes, that the form which magistrates have to complete stating the reason for committal to prison should be changed to require the court to specify that it has considered every other enforcement option, each of which has either been tried or is not suitable, giving reasons in respect of each enforcement option.

The much respected VERA Institute of Justice published a study in 1986 about this very subject, the enforcement of fines as criminal sanctions. It said that its research showed that the courts rarely use distraint of goods and not very often money payment supervision orders. It seems only sensible that the courts should say what their reasons are for not applying the various penalties which do not include custody. This would not only save a large number of receptions into prison but would also tend towards consistency of sentence. I have to go on repeating that. Being forced to give the reasons is bound to result in greater consistency and we all agree that that is desirable.

I think I need say no more, because I have said enough to prove that this amendment, which emanates from Lady Howe's working party in 1981, does what we all want to do. It would keep fine defaulters out of prison.

Lord Denning

This is a most interesting point. For years magistrates have not always given reasons and it has often been a question of whether they should give reasons. In that regard I often tell them the advice which Lord Mansfield once gave: Give your decision but never give your reasons, for your decision may well be right but your reasons are almost certain to be wrong". That is the trouble. I am afraid that they do not give reasons at the moment because of the difficulty of getting the reasons right. Let us suppose that if they are bound to give reasons they say, "We are of the opinion that all other methods of enforcement of the payment of the fine are inappropriate or unsuccessful". Is that a good reason or a bad reason? Is it to be taken up to a higher court to see whether the reason is good or bad?

Although I much sympathise with the amendment, which would make magistrates concentrate their minds tremendously on what they ought to do, nevertheless I am not sure that it would be very welcome by the magistrates, who would be inexperienced at expressing themselves if they were compelled to give reasons. Much as I sympathise with the proposal, I doubt whether it should be accepted.

Lord Hutchinson of Lullington

My name appears on this amendment and I should like to say one or two words about it because I suggest it is one of the most important matters that magistrates have to deal with. I would only say to the noble and learned Lord, Lord Denning, that things have advanced since Lord Mansfield's day and justices have to give reasons now in all sorts of situations in law.

That 19,000 people go to prison every year for not paying fines is an astonishing statistic which perhaps the public do not appreciate and it may well be that some Members of the Committee have not appreciated it before. Some magistrates' courts simply do not send non-payers to prison, and if some magistrates' courts can achieve that why cannot all magistrates' courts?

We are very much back to the situation that we have considered on another amendment, the refusal of some magistrates' courts to listen to what other courts are doing and the refusal to be mixed up with and pay attention to those outside the judiciary who have studied these serious problems. As the noble Lord said, the report of Lady Howe's working party is an absolutely fascinating document, full of extraordinary statistics showing the amazing differences between magistrates' courts across the country as to the size of fines in comparative cases, as to the enforcement activity of different courts and as to the collection rate of different courts. They vary enormously.

Surely every magistrates' court should have a collection policy for fines that are not paid. They should have a fine default officer whose job it is to pursue the matter. They should target each individual. They should bring the probation service into it and see that the information of non-payment comes to the court early and quickly and that the person is brought before the court early and quickly. Supervision of defaulters is a tremendous contribution to getting payment in the end, using attachments of earnings, money payment suspension orders, imposing small and varying instalments and using distraint of goods as a threat and so on in the collection of fines.

It is only too easy, as one sees in some courts, simply to have a policy of two or three bites at the cherry, a threat of imprisonment and then imprisonment. It is simpler, it takes little time and it makes one feel nice and satisfied—"We've given him two or three chances and that's over". The truth is that in a large number of cases defendants are simply inadequate people, deprived people, depressed people, who cannot manage their affairs properly. They have to pay their rents, their rates, their hire purchase and so on and they need assistance to ensure that the fines they owe are properly paid. They must not go to prison willingly—as many do, indeed—as a means of geting the pressure of the fine off their backs. Equally they must not be fined as a method of imposing a prison sentence when clearly the offence itself does not warrant it, as we have seen since imprisonment was abolished for prostitution. Surely young persons should never be sent to prison for failing to pay fines.

Can the noble Earl tell the Committee what training magistrates get in this vital area, what contribution computers have made to the early detection of default and how many courts have fine default or enforcement officers; whether statistics are being regularly kept of the percentage of committals, the number of appearances and the time elapsing between the imposition of payment and sending people away to custody; and whether magistrates' courts are being informed of what is happening across the country? This is one area where one could well make a dent on the number of people who are being sent to prison.

Although Clause 53 is to be welcomed, it is one of the most long-winded provisions that I have come across. It would surely be possible to say it all in one quarter of the words used.

The Earl of Caithness

The noble Lord, Lord Henderson of Brompton, has raised a most important matter. As he rightly pointed out, over 19,000 fine defaulters were received into custody in 1986. The noble Lord, Lord Hutchinson of Lullington, said that that is a surprisingly high figure. It was put to me recently that it is a surprisingly low figure considering the number of fines issued per annum.

The Government firmly believe that custody should be a last resort, used only when all other measures fail. We have taken positive measures to secure this by means of a circular to the courts. The 1980 Act already contains strict tests. It is encouraging that the number of fine defaulters committed has been falling—by 5,300 between 1982 and 1986.

While we must lose no opportunity to improve enforcement short of custody, I am not persuaded that the noble Lord's amendment will serve any useful purpose. Section 82(6) of the 1980 Act already requires a court issuing a warrant of commitment to specify on it which of the statutory criteria permitting the issue of a warrant have been met. In the case of committal following a means inquiry, the grounds will include the fact that the court has considered or tried all other methods of enforcement and finds them inappropriate or unsuccessful. It is hard to see the requirement to give reasons being more than a pointless encumbrance for the court, which will become condensed into a few stock formulae expressing the court's frustration at a line of postponements.

We have moved some way towards the position of the noble Lord, Lord Henderson, though by a slightly different route. As presently drafted, the 1980 Act simply requires the court to have considered "all other means of enforcement". We thought that it would be helpful to spell out on the face of the Act what those options are. This is what Clause 53 does so there will be no question of the court overlooking or not specifically considering any of the options before resorting to custody.

The noble Lord, Lord Hutchinson of Lullington, said that this is a horribly long-winded clause. Perhaps I may take that point away and, with my right honourable friend, consider whether we should go back to the wording of the 1980 Act which simply says "all other means of enforcement".

The noble Lord, Lord Henderson of Brompton, mentioned money payment supervision orders. These have been available for the use of the courts under Section 88 of the 1980 Magistrates' Court Act. I agree with the noble Lord that they should be used more. Clause 53 by implication lists them among the other considerations to be addressed by the court before committing to custody.

For the reasons that I have given, I fear that I cannot advise the Committee to support the noble Lord's amendment. I hope that he will feel that the approach I have described is both practical and constructive.

Lord Henderson of Brompton

I thank the Minister for saying that the matter I have raised is most important; unfortunately I do not think that I can thank him for his reply.

The Minister says that the amendment would not serve any useful purpose. That must be a matter of opinion. I have discussed Clause 53 and the amendment with a very experienced magistrate. When I told him the purpose of Clause 53, he asked, "What difference will that make?". I then told him that, under the amendment, the magistrates would give their reasons for not sending fine defaulters to prison. He said, "That really should make a difference. It might force them to concentrate on all the non-custodial options". I am merely expressing another point of view, one that is different from that of the noble Earl, but it happens to be the point of view of an experienced magistrate; I believe that his clerk would agree too. The magistrate believes that it would make a substantial difference.

I ask the noble Earl possibly to respect the spirit of the amendment, partly because I have had the assurance from a magistrate that it would make a substantial difference, whereas he thought that Clause 53 would not; and partly because it is a matter of public confidence. I have stressed this more than once. I do not believe that the reasons would be an encumbrance on the magistrates; nor do I believe that they would boil down to meaningless formulae. I believe that this would represent some special attempt to reduce the number of fine defaulters who go to prison. It would make for consistency of sentence and give public confidence should an amendment on such lines be introduced.

I shall not say any more because the Minister is not in the giving vein this evening. Therefore it would be pointless to press this to a Division. Enough has been said, I would hope, for the Minister to place some kind of importance on the discussion that has taken place today and consider it between now and Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 54 agreed to.

Clauses 55 to 57 agreed to.

6.30 p.m.

Lord Monson moved Amendment No. 76: After Clause 57, insert the following new clause:

("Causing death he reckless driving—increased minimum disqualification period.

(In section 93 of the Road Traffic Act 1972 the following subsection shall be inserted after subsection (1)— (1A) Where a person is convicted of an offence under section I of this Act, the court shall order him to be disqualified for such period not less than three years as the court thinks fit unless the court for special reasons thinks fit to order him to he disqualified for a shorter period or not to order him to he disqualified."").

The noble Lord said: Violent death is always a traumatic event for any family and all the more so when that death is caused by what we loosely call "criminal negligence". When that criminal negligence results in what is now legally termed causing death by reckless driving the feeling of the family and of the public in general are particularly outraged. That is the case no matter whether the driver who killed a fellow human being or human beings was driving under the influence of alcohol, hard drugs, soft drugs or of tranquillisers or whether the driver was stone cold sober and was simply racing another driver along on a motorway, along a crowded suburban street or was overtaking at speed on a 90° bend.

There has been great public indignation at the lenient sentences and minimal periods of disqualification which are too often imposed upon those who, through their negligence, have caused horrible carnage and death. One must emphasise the word "reckless". The law leans over backwards to avoid punishing to any degree those who have killed merely through carelessness: indeed many people think that the law is too lenient in that latter respect. I know that that is something that the North Committee is currently looking into.

I return to the specific question of punishment for causing death through reckless driving. Undoubtedly the recommendations made by my noble and learned friend the Lord Chief Justice some while ago have had some beneficial effects. I have examined 12 typical press reports of such cases, most of them harrowing, which date from the autumn of 1983.

Three or four years ago prison sentences tended to range from three months suspended to 12 months of which perhaps nine months were suspended, with fines, when they were imposed, of between £80 and £600. Only in exceptional circumstances was a non-suspended sentence of as much as 12 months imposed. Disqualification was generally in the one and a half to three years' bracket.

Since the exhortations of my noble and learned friend the Lord Chief Justice sentences seem to have been getting much stiffer, with two, three and three and a half years' imprisonment unsuspended occasionally being imposed and with disqualifications often ranging up to six years. All the same the recommendations of my noble and learned friend are not binding. There are still many instances of seemingly low sentences which infuriate the public.

One can appreciate the judges' dilemma over the question of imposing even longer prison sentences for this offence. That was exemplified by the anecdote which was recounted to us by my noble and learned friend Lord Denning earlier this week.

There are also considerations of prison overcrowding and the burdens an ever-growing prison population imposes upon the taxpayer. That is why I urge the Committee to accept the amendment which is now before us. First, it merely confirms what is rapidly becoming accepted practice in any case and, like the existing law, it contains a let-out clause for the very rare genuinely hard case.

Secondly, its formal acceptance with all the attendant favourable media publicity should take a good deal of the steam out of the popular cry for ever longer prison sentences for this particular offence.

Thirdly, I submit that it has considerable merits independent of the foregoing considerations. The increased minimum disqualification period would to some extent deter. It would certainly keep had drivers off the road for longer than would otherwise be the case, possibly saving lives in the process. It would punish, without punishing the family to the same extent as a prison sentence would, and it would save a great deal of money in comparison with the alternatives.

As far as I am aware there are only two possible objections, both of which I hope to be able to deal with satisfactorily. First, some lawyers, so I am told, although I am sure they cannot be representative of their profession, hold that people should essentially be penalised for their bad behaviour rather than for the fortuitous results of that bad behaviour. In that view the causing of death by reckless driving is no worse from the criminal aspect than the act of reckless driving itself.

Such an attitude must greatly shock the man in the street, and it cannot be healthy for the law to get so out of line with public opinion. It certainly shocks me. As a layman I believe that people should be punished for the harm that they actually do and not for the harm that they might do; I believe that most people in this country feel the same way.

What is more, the excessively purist attitude that is said to be held by some members of the legal profession is in conflict with what actually happens when people are sentenced. Murderers do receive longer sentences than those attempting murder unsuccessfully; rapists do receive longer sentences than those who attempt rape unsuccessfully, and so on and so forth.

The second objection—which perhaps at first glance is slightly stronger—which has occasionally been voiced when I have put forward this suggestion on earlier occasions is that it would fetter the hands of the judiciary. That objection should have been made many years ago, because the judiciary's hands are already fettered by existing road traffic Acts. A judge cannot disqualify somebody who is convicted of causing death by reckless driving for three, six or nine months even if he wants to, except in very specific circumstances—a let-out clause, in effect, which my amendment naturally retains. So no new principle whatever is being introduced. No constitutional conventions of any kind are being challenged.

This is a modest measure which I believe will help to protect innocent members of the public and will further the interests of justice. I beg to move.

Lord Boyd-Carpenter

I have a great deal of sympathy with the proposal in the amendment. I am no doubt affected, as we all are, by personal feelings. I once lost an old friend as a result of someone committing this identical offence. But trying to put that out of one's mind, there still remains the fact that where someone causes death by reckless driving there is an overwhelming case and, I would suggest, also a very strong public demand for keeping that person off the road for a number of years.

I rather regret that the noble Lord, Lord Monson, put in an escape clause. I personally would be prepared to support a fixed limit of not fewer than three years in all circumstances. If people persist in committing this kind of offence, it seems that they should be discouraged by the knowledge that they will be off the road for a number of years, however inconvenient for them that may be. I hope that, unless my noble friend has some new point on this matter, he will look at any rate with sympathy on this proposal.

The Earl of Caithness

I am sure that all Members of the Committee have great sympathy with the purpose of this amendment, which is to ensure that those convicted of some of the most serious road traffic offences are taken off the roads for a substantial period. There is a great deal of bad driving about and it is only right that the courts should deal severely with those who cause or might have caused death or injury through their selfish and reckless behaviour. But the arguments in favour of the amendment are by no means clear-cut.

There are three grounds why I would not want to accept it. The first is that mandatory penalties are used only sparingly in our system of justice because we believe in allowing the courts to have discretion to tailor the penalty to the individual offender. We already have a mandatory penalty here; but it seems to me that we would need very strong evidence of its inadequacy before we raised it. I do not think one year is inadequate; there are some people, particularly those who rely on driving for their jobs, for whom a year's disqualification is a serious penalty, however well-deserved.

Secondly, where they see fit, the courts may disqualify for much longer than one year, five, seven and even 10 years are not unknown. There is no upper limit on the period of disqualification. Thirdly, disqualification is not the only penalty available to the courts. In fact it is not even the principal one, although I accept that it may often be the one which hurts most. The maximum penalty on conviction on indictment for causing death by reckless driving is five years' imprisonment and for reckless driving it is two years' imprisonment. Since causing death by reckless driving is a purely indictable offence it will be covered by the provision for lenient sentences to be referred to the Court of Appeal, for which the noble Lord, Lord Monson, voted.

The courts have wide powers already and I think we should trust them to use their discretion wisely.

Lord Boyd-Carpenter

Surely, as my noble friend has admitted that there is already a mandatory penalty available for this offence, he cannot use the argument against mandatory penalties as an argument against this amendment. It is a matter of judgment at what level the minimum mandatory penalty should be fixed. I should have thought that public opinion generally holds—and I hope many Members of the Committee would support it—that a minimum of three years for an offence where, by the seriousness of the reckless driving, death is caused was an appropriate penalty. But in any event, with great respect to my noble friend, he cannot rely on the generalised argument against mandatory penalties, because they are there already.

The Earl of Caithness

With respect to my noble friend, I did not rely on that as an argument. I laid that as a basis within the law and said that we have a mandatory penalty on this, which is one year, and that I would require a lot of evidence to suggest that it was inadequate. Yes, of course one can differ as to whether it should be one year or three years, but the evidence is that it is not inadequate at the moment.

The Earl of Onslow

If the mandatory penalty for being slightly over the limit in respect of drink is one year and the mandatory penalty for killing somebody by dangerous driving is also one year. it seems that our values are slightly askew.

Lord Mishcon

I only want to throw one thought into the discussion, if I may. It may not be known to all Members of your Lordships' Committee that the phrase "special reasons" does not mean what the layman may think it means. "Special reasons" have been limited to special reasons relating to the offence and not special reasons relating to the offender. If therefore you have a minimum sentence of three years and a family is going to be made destitute because a person who has offended relies upon driving for his livelihood—and I am not here to plead for extreme leniency for people who by reckless driving have caused death—one ought to remember that the court would not be able to take into account the factor I have just mentioned or anything relating to special reasons that apply to the offender as such.

I thought I ought to put that to the committee because many Members may not have known that the phrase "special reasons" does not mean in this context what they may think it means.

6.45 p.m.

Lord Monson

I am most grateful to the noble Lord, Lord Boyd-Carpenter, and to the noble Earl, Lord Onslow, for their support. In reply to the noble Lord, Lord Boyd-Carpenter, I should like to have omitted the escape clause, although the noble Lord, Lord Mishcon, says it does not mean what the layman may think it means. That may be so. However, I thought it would be better not to aim too high, and to select an amendment which would be broadly acceptable to the Committee and also to the other place, which of course would have to examine this amendment if it were to be passed here. He may be aware that a distinguished honourable friend of his in another place put down an amendment to increase the minimum disqualification to 10 years. That was not called by the Speaker, but there is certainly a body of thought in another place which thinks that my amendment is, if anything, rather on the soft side.

The noble Lord, Lord Mishcon, talks about people being rendered destitute: I think that is rather emotive language. Even if a man is disqualified for one year and he is a professional driver, he is going to lose his job anyway. But presumably it is not impossible for him to find a job that does not involve driving.

Lord Boyd-Carpenter

Would my noble friend allow me? Presumably if one is going to be worried about people being rendered destitute, perhaps there is even more reason for us to be worried about people being rendered destitute by the death of the breadwinner, caused by other people's recklessness.

Lord Monson

Of course the noble Lord is absolutely right. Those are the people we should be thinking about first and foremost. The noble Earl, Lord Caithness, talked about penalties, and perhaps I concentrated too much upon the punishment aspect. But although I see this partly as punishment I also see it as a means of protecting other road users: I really do not think that these sort of people ought to be on the road. There is perhaps a case for saying they ought to be made to take another driving test before being allowed back on the road again after their period of disqualification, whether it be one, two or three years.

I should like to put this to the noble Earl: suppose the period of disqualification at the present time were already two or three years, perhaps as a result of the Government having been caught off guard late at night when an amendment was going through, would they then seek to reduced the period to one year? I do not really think they would.

I am heartened by the support I sense around me. I do not intend to press the amendment to a Division tonight: I want to take it away and think about it and I may perhaps compromise a little on the period of disqualification. While reserving the right to bring it back at a later stage, at the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdraw.

Clause 58 agreed to.

Lord Henderson of Brompton moved Amendment No. 77: After Clause 58, insert the following new clause:

("Day fine" system.

. A court imposing a fine shall, so far as the disposable income of the offender appears or is known to the court, impose a fine of the number of days' disposable income which it appears to the court that the seriousness of the offence and the culpability of the offender require.").

The noble Lord said: I beg to move this amendment separately from Amendment No. 73, which was moved by the noble and learned Lord, Lord Elwyn-Jones. That is for a number of reasons. It is partly because it does not refer to the means of the offender but refers to, the number of days' disposable income [of the offender] which it appears to the court that the seriousness of the offence and the culpability of the offender require". There is a big difference. I think all of us have been guilty of confusing in ordinary conversational terms "means" and "disposable income". Indeed the Home Secretary himself did when he spoke in January of this year—I forget to whom. He said: The use of the fine has been tailored more sensibly to the means of the offender, helping to cut substantially the number of fine defaulters who end up in prison". I do not know whether he had thought very carefully about the use of the word "means". I know that the noble Lord, Lord Renton, sought to make fun of the previous amendment of the noble and learned Lord, Lord Elwyn-Jones, by referring to the difficulty of establishing someone's means. But it is much easier to establish to the court's satisfaction, the number of days' disposable income which it appears to the court that the seriousness of the offence and the culpability of the offender required".

I may say that the day fine is nothing new. It has been proposed before. It was proposed in the other place and it is in effect and working well, so I am told, in Sweden, West Germany and Austria. There—I believe it is the same for all countries—the fine is arrived at by multiplying a number reflecting the gravity of the offence by a sum which varies in proportion to the offender's income. I have some hope of a satisfactory answer from the noble Earl for the first time in this Committee because in another place Mr. David Mellor, when he was Minister of State for the Home Office, said in March 1987: we have no objection to this idea being investigated fully and vigorously … The attractions of this scheme are such that it is well worth looking for a practical means of carrying it out".

That was six months ago. The purpose of tabling this amendment and moving it is to press the Government for more details and for a more specific commitment concerning the nature of research, investigation, experiment or whatever it may be which will achieve the result. This is especially so bearing in mind what has been done so successfully in Germany, Sweden and Austria.

I believe that I have been acceding to the wishes of the Chief Whip by moving my amendment in precisely three minutes. I hope that I shall gain some credit in that quarter for that achievement. I beg to move.

Lord Donaldson of Kingsbridge

The opportunity of earning the Chief Whip's credit is too difficult for me to resist, and I hope that I shall be able to support my noble friend in a speech of two minutes. It seems perfectly clear to me that something along those lines is a possibility. We hope that the Government will look at the matter, find out the best way of dealing with it and coming back with it. I believe that there is a real demand that the matter of people being imprisoned for not paying fines should be sorted out. The best way of sorting it out is to set the fine in relation to what they can, with moderate discomfort, manage to pay. I hope that the noble Lord will take that suggestion away and bring back something, after careful consideration, which we can support.

Lord Boyd-Carpenter

I hope that if he does, he will indicate to the Committee what I found difficult to follow. That is how the magistrates' court is conceivably to find out what the disposable income is of a person in such circumstances. Is the court seriously expected to seek a tax return? Is the court simply to make a guess from the look of the offender?

Lord Donaldson of Kingsbridge

The amendment is quite clear. The words are. so far as the disposable income of an offender appears or is known to the court". In other words, the court does the best it can. That is what we do all through life; there is nothing new about it. It is possible to make a perfectly good assessment of whether an offender, when asked what his income is, is being truthful. I do not think that that system is frightfully good; it certainly is not nonsense.

Lord Boyd-Carpenter

What it amounts to is that the court is being asked to make a guess.

Lord Henderson of Brompton

Surely it is worth making a guess. Is the noble Lord being so complacent as to say that someone who has a disposable income of £100,000 a year should not pay more than someone who is unemployed? The whole point is that we wish to get at these Arabian princes, if I may recall the example given by the noble and learned Lord. Lord Elwyn-Jones. Let me give another example of a princely income. It was that of Boy George, although he is not Arabian and not a prince. We all know that, although his means are considerable, he was fined a derisory sum of money. Is the noble Lord, Lord Boyd-Carpenter, content with that state of affairs?

Lord Boyd-Carpenter

The noble Lord, Lord Henderson of Brompton, knows perfectly well that he is running over the horizon from the question which I asked. I did not challenge—nor, on this amendment, is it necessary to challenge—the perfectly respectable argument that the better off one is generally, the fairer the imposition of a heavy fine will be. What I asked was how a court was to do that. The noble Lord has not answered that question.

Lord Henderson of Brompton

The court uses its best endeavours.

Lord Boyd-Carpenter

It guesses.

Lord Henderson of Brompton

You may say, "It guesses". It makes an informed guess. I am surprised at the noble Lord. He appears not to wish to help towards what we all wish to achieve. We wish to see that the unemployed man with a small amount of money does not have an impossible fine imposed on him. At the same time, we wish to see that the Arabian princes and the Boy Georges of this world pay whacking great fines. I had hoped to recruit the noble Lord towards that process. I should have asked for his goodwill with some expectation of success. It seems that that is not to be so. I am happy to say that I have the goodwill of the Government, as evidenced in the remarkable words of Mr. Mellor only six months ago in March 1987. That is support for the idea from the Government which the noble Lord supports. However, all we have had is cold water poured on the idea by the noble Lord. That seems to me to be a very great shame.

Lord Boyd-Carpenter

I am sorry if the noble Lord thinks that it is a very great shame. I am sorry that he tries to saddle me with ideas and views which I do not hold. The point I make concerning his amendment is perfectly simple. Has he put forward a practicable and sensible method of achieving the purposes which he wishes to achieve? What I suggest, with great respect, is that he has not. He has put forward what is almost certainly a grossly unfair, inadequate and somewhat muddled proposal.

Lord Henderson of Brompton

It does not work, saying those things. As I have made absolutely clear, the whole point is to attract a sympathetic answer from the Minister in the same way that a sympathetic answer was attracted in another place from Mr. David Mellor. May I add that Mr. Mellor said that the attractions of the scheme were such that it was well worth looking for a practical means of carrying it out.

The noble Lord knows as well as I do that it is extremely difficult for any amateur draftsman to put into a particular form what is obviously a desirable idea. The nuts and bolts must be done by the Government, with all their resources. The noble Lord knows that as well as I do. Nobody can hope to put forward an idea in such perfect form that it will be accepted by parliamentary counsel without changes. The noble Lord has vast experience in that area. For some reason, by attacking a very minor part of the amendment, he seeks to pour scorn on the whole purpose of it. I am surprised and disappointed. But never mind.

Lord Boyd-Carpenter

I have never regarded the noble Lord as an amateur draftsman.

The Earl of Onslow

I hestitate to disagree with my noble friend on the "Front-ish" Bench. However, it seems very odd to me that we cannot find some way of fitting fines to ability to pay. After all, magistrates may remand for psychiatric reports and for other sorts of reports. I think it is rather easier for them to make more than just a refined guess at means. The first argument I ever had with the man who is now my father-in-law occurred when the Vicar of Colwyn Bay was fined £3 for speeding. I thought that that was rather a lot of money on a Welsh vicar's stipend.

Noble Lords

Hear, hear!

The Earl of Onslow

None of this unattractive nationalism from the Benches opposite! It seemed to me unfair that he should be fined the same amount as some of his better-off relations. My father-in-law, for whom I have the greatest respect, did not agree. I have always thought that it is unfair not to make punishment fit the ability to pay. The noble Lord, Lord Henderson of Brompton, is attempting to do that. My noble friend, for whom I have a seriously large amount of respect, is unnecessarily pouring cold water on what is rather a good idea.

Lord Donaldson of Kingsbridge

We must accept the fact that the noble Lord, Lord Boyd-Carpenter, thinks that the idea is impractical, foolish and a waste of time. I do not, and my noble friend who puts forward this amendment does not. I should now like to call on the Government to come in and see whether the Minister will accept my suggestion that this is an important and valuable idea. Will he put the resources of his department into finding out whether he can put forward a sensible scheme?

7 p.m.

The Earl of Caithness

As the noble Lord, Lord Henderson of Brompton, has said, the idea of unit fine system has been in the air for a number of years. It was first mooted by the Advisory Council on the Penal System as long ago as 1970. Successive governments have held back from pursuing what would be a major disruption of the fining system. Court of Appeal guidance already encourages the courts to adjust fines downwards for poorer offenders. The Home Office handbook, Sentence of the Court, draws the court's attention specifically to the statutory requirement to take the means of the offender into account.

That settles the argument of the noble Lord, Lord Henderson of Brompton, and of my noble friend Lord Onslow about the unemployed man compared with the man who is well off. The noble Lord, Lord Henderson of Brompton, also made the point that we want to adjust it for the unemployed man but that instead of having a maximum we actually want to sting the very rich. That is not the position in our system of justice and it is exactly the point I was making on the earlier amendment to which I hope this one will be linked. It makes it clear that small fines may well be justified and should not be regarded as an indication that the offence is trivial, and that custody should not be used simply because the offender lacks the means to pay a fine.

Nevertheless we can see attractions in the idea of attempting to relate fines more directly to means. When this Bill's predecessor was debated in another place my honourable friend the then Minister of State, Mr. Mellor, said that we were anxious to promote discussion of it. I therefore very much welcome the debate we have had today on the noble Lords' amendment.

Many questions of principle arise on the amendment, and I mention some of them. Should some types of offences be excluded from the system, as appears to be the case in Sweden? Should there be any overall maximum for particular offences regardless of income? More basic is the formidable practical problems which will arise, the chief of which is that of assessing a defendant's disposable income.

These are points which were well made by my noble friends Lord Boyd-Carpenter and Lord Renton on a previous amendment and indeed by my noble friend Lord Boyd-Carpenter on this amendment. At present courts only inquire closely into the offender's income when the offender defaults on payments. The courts would have to do so in every case before the level of the fine is set if fines were to be truly proportionate to means. They would have to rely upon the offender for information. If he was rich he would have every incentive to withhold it. Experience of day fine systems in other countries is by no means conclusive.

The Government's main concern at the moment is that offenders of limited means should not be ordered to pay fines which they cannot afford. To this end we are examining ways of improving assessments and we are in the process of setting up some experimental projects. If they are successful we may be able to move more in the direction of means-related fines for all offenders although, as I have said, there are also problems of principle.

At the moment the practical objections to a rigid day fine system remain very powerful. Even if we could agree on what income should be taken into account—and we could debate for hours how to measure a defendant's income: whether or not we should look at gross or net income; whether or not we should include capital and the interest that accrues thereon—the courts would have to find a method of discovering the income in every case which came before them, which amount to some 1.6 million cases a year. I do not think they could manage, although I realise that many magistrates are in favour of income-related fines.

I realise that this piecemeal approach through further study and experimental projects may not entirely satisfy the noble Lord, Lord Henderson. Nothing I say today seems to be able to satisfy him.

All our experience suggests that it is better to proceed cautiously in matters of this kind. A move to a full day fine system would be a leap in the dark, with enormous administrative consequences for a court system which is already under pressure.

I hope therefore that the noble Lord will agree with me that it is better to concentrate upon finding ways within the present system of broadly ensuring that fines for the less well-off offenders are better related to their means. Nevertheless I hope that I have said enough to assure the Committee and the mover of this amendment that the Government are fully alive to the virtues of a means-related fine, as indeed is my noble friend, Lord Boyd-Carpenter and that therefore the noble Lord will not press it this evening.

Lord Harris of Greenwich

I think that by far the strongest argument of the noble Earl is the question of the administrative difficulties which would arise given the scale of the problem. He then went on to say, as I understand it, that he had a number of experimental projects under way. Given the administrative problems which he set out and which I to some degree acknowledge, what is the character of these experimental projects which relate directly to the amendment which is being moved by the noble Lord, Lord Henderson? If the noble Earl is not in a position to answer that point tonight I should be perfectly content for him to deal with it when he writes to those who have contributed to this discussion between now and the Report stage.

The Earl of Caithness

I am grateful to the noble Lord, Lord Harris of Greenwich, for raising that point. Perhaps I may write to him.

Lord Henderson of Brompton

I am very grateful to the noble Earl for his answer and I fully accept that there are administrative and practical objections to what I propose. I am very grateful to hear that the Home Office is setting up experimental projects. I should have thought that if we knew what those projects were, as the noble Lord, Lord Harris said, we could have extracted some valuable information from him.

I certainly do not intend to press this amendment today. Before I seek leave to withdraw this amendment I wish to say two things. The noble Lord said that we shall be leaping into the dark. I suggest that it would be leaping into the light of experience in Sweden, Germany and in Austria. Secondly. I should like to assure him that I have no wish—I do not know about others—to sting the rich.

I simply wish that the same incidence of deprivation should fall on the rich as on the poor. A poor man, and certainly someone who is unemployed, would find a £5 or £10 penalty something hard to bear. It would be a trifle for someone in employment. Even a fine of £1,000 would not sting the rich or the very rich. I am not concerned to sting anyone. I wish the effect of the sting on the poor man to be about the same as it is on the rich man.

Having said that, I ask the leave of the Committee to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 59 [Forfeiture—general]:

Lord Irvine of Lairg moved Amendment No. 78: Page 37, leave out lines 31 to 44.

The noble Lord said: If this amendment finds favour with the Committee, it will have the salutary effect of removing as many as 14 lines from an overburdened statute book, lines which I suggest serve no useful purpose and certainly could do some harm. So an amendment which takes 14 unnecessary lines off the statute book, I suggest to the noble Earl, must really be in the public interest and is even worth detaining us for a few minutes before dinner.

Let me explain the background to this amendment. Under Section 43 of the Powers of Criminal Courts Act 1973 a court, by or before which a person has been convicted of an offence punishable on indictment with imprisonment for a term of two years or more, if satisfied that any property which was in his possession or under his control at the time of his apprehension—and I underline the words "at the time of his apprehension"—(a) has been used for the purpose of committing or facilitating the commission of any offence or (b) was intended by him to be used for that purpose, could make an order which would deprive him of his rights (if any) in the property.

Decisions of the courts revealed an anomaly in that provision. If the police had lawfully seized the property before—and I underline the word "before"—his apprehension, the court could not make an order under the section. This was because that lawful seizure prevented the property being in his possession or control at the time of his apprehension. So that anomaly, rightly, has to be removed. It is satisfactorily removed by the words in the new subsection (1): or which was in his possession or under his control at the time when he was apprehended for the offence or when a summons in respect of it was issued". So far, so good. Then we have this new and I would suggest completely unnecessary subsection (1A). Subsection (1A) reads: In considering whether to make such an order in respect of any property a court shall have regard—(a) to the value of the property". Pausing there, it is difficult to think of a more banal statutory provision than that. The court does not need to be put under a duty to have regard to that obviously relevant consideration and the same is true of (b) and (c). It is inconceivable that a court would not have regard to those matters in making up its mind. Therefore, courts, when they exercise their discretion to make this order, if this wholly unnecessary provision is allowed to go into the statute book, will have to intone when they are passing sentence, "We had regard to all these considerations (a), (b) and (c)". If they do not remember to say that, they will be at the risk of encouraging appeals. As Section 43 of the 1973 Act at present stands, there is no such list of considerations. I am not aware that that omission has caused any problems whatever in practice. The next part of this provision is, if I may say so, even sillier. It says: and a magistrates' court may only make such an order if it is of the opinion that the value of the property does not exceed the maximum fine which it might impose in respect of the offence". No doubt magistrates ought to be cautious about ordering the forfeiture of property which is of greater value than the maximum fine which they could have imposed, but there should be no absolute bar to their doing so.

The draftsman has lost sight of the purpose of this provision. The purpose of Section 43 is not—and I emphasise "not"—to function as a backdoor means of increasing the penalty for an offence. In fact, it is not at all tied to the offence of which the person is convicted or even to an offence by him. The rationale of this section is that where property is held in order to be used for nefarious purposes, or is held unlawfully it may very well be wise for the property to be taken away from the known criminal who holds it lest he or someone else should do harm with it in the future. That is the obvious rationale of the provision.

I see no reason why that prudent line of thought should be in some way invalidated where the property happens to be worth more than £2,000. No doubt it will be exceptional for such valuable property to be used to commit or facilitate a crime but I can think of examples not in the least unlikely such as a motor vehicle or computer equipment, or possibly a highly sophisticated firearm.

Moreover, the noble Earl will appreciate that that is the maximum fine only in the case of offences triable either way. One object, however, of Clause 59 is to extend the forfeiture power to cases where the conviction is of a summary offence for which the maximum fine may be only £50 or £100.

Let us suppose that there is in the offender's possession at the time of his apprehension property worth £150 which it transpires was used by some other person to break into a house the previous night, having been lent to him by the present offender, who had a very good idea what its unlawful use was to be. Why on earth should it not be open to the magistrates to forfeit that property? Of course they must exercise their power judicially but I can see no reason whatever to hedge around the admirably broad sweep of the new Section 43(1) with these artificial and unconsidered restrictions.

That is especially so as it appears to me—the Minister will correct me if I am wrong, and I expressly invite him to do so—that the magistrates will have no jurisdiction to commit to the Crown Court for sentence merely on the ground that there is property which ought to be forfeited but which is more valuable than the magistrates are empowered to deal with.

Finally, it is surely undesirable that magistrates should have to attempt an accurate assessment of the value of property which appears to fall on the borderline of the maximum fine. That type of exercise has, in fact, led to difficulties in criminal damage cases and would lead to difficulties here. Therefore, with respect to the author of this provision I see absolutely nothing for it but much against it, and I commend the simplicity of Clause 59 unencumbered by this new subsection.

7.15 p.m.

The Earl of Caithness

Clause 59(1A) is the means by which we are ensuring that in their use of the wider powers of forfeiture provided by this clause, courts will have regard to the means of, and likely effect on, the offender when considering making such an order. This provision is necessary since forfeiture is concerned with a particular item or items of property which may or may not have the indirect effect of a financial penalty, and which may also have other implications for the offender.

The right approach is to require the court generally to have regard to the likely effect on the offender of the making of the order and this is the purpose of subsection (1A). If (1A) were to be removed as the noble Lord has suggested, the offender would be afforded no protection and might as a result suffer a financial or other form of penalty disproportionate to the gravity of this offence. For example, the loss of a vehicle might cause the offender to lose his job. For a person living in a rural area or a person with a handicapped member in the family the loss could result in serious practical (as opposed to financial) hardship for his family.

In other cases the loss of a vehicle might have much less serious consequences. It is surely right that, in considering whether to order forfeiture, the court should consider and have regard to the effects that such an order may have.

However, the noble Lord, Lord Irvine of Lairg, has made some telling points; in particular the one about the discrepancies between the Crown Court and the magistrates' court. They are important and I shall have a look at them. Indeed, I should like to consider some of the drafting he mentioned when moving the amendment, because I am sure that he agrees that I am not the person to deal with that at the moment. Perhaps I may discuss it with him between now and another stage to see if we can reach the right conclusion on this particular part of the Bill.

Lord Irvine of Lairg

The approach of the noble Earl is characteristically generous. He has, in fact, responded only to the first part of the argument and has not responded to the second part, which deals with the words: and a magistrates' court may only make such an order if it is of the opinion that the value of the property does not exceed the maximum fine which it might impose in respect of the offence". I believe that the arguments which I put forward against that part of the provision are compelling, and perhaps the noble Earl will consider them in transcript together with the other observations I have made. In view of the response of the noble Earl, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 59 agreed to.

Clause 60 agreed to.

The Earl of Arran

In moving that the House do now resume, I suggest that we return to the Committee stage at five minutes past eight. I beg to move that the House do now resume.

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

House resumed.