Sentencing Levels

HL Deb 23 May 1990 vol 519 cc982-1011

9.24 p.m.

The Earl of Longford rose to ask Her Majesty's Government whether they are satisfied that the general level of sentencing in Great Britain is appropriate.

The noble Lord said: My Lords, I was told last night that this debate would start at seven o'clock. Those who are so eloquent in restricting the birth of children are not so restrictive of their own speeches, so it has come on two hours and 20 minutes later than we expected. Perhaps there is a lesson to be learnt from that.

I should like to thank in advance all those who have had to wait so unexpectedly long to take part in the debate. I hope that my very expert old friends who will be speaking will forgive me if I single out two speakers from the others for mention at this point. We must all be particularly glad—I am sure, for example, that the noble Lord, Lord Hutchinson, will be—that the noble and learned Lord, Lord Ackner, is to take part. In the past I have paid tribute in writing to the intellect and integrity of the judiciary, but now I add a further tribute to the courage, or audacity, of the noble and learned Lord for coming forward at a time when the judges are under fire for the first time in a lifetime. In all honesty, we look forward to his defence of the judiciary.

I am also glad that the noble Lord, Lord Fitt, has decided to contribute. I salute him on a number of grounds but particularly now for his heroic defence for 15 years of the Maguire family which it now seems likely will culminate in triumph.

However, at this late hour I must continue. I submit that the House will agree that it is high time that we had a debate on sentencing. As my argument proceeds a number of issues will be raised but there is one question that I must first put to the noble Viscount, who has been given notice of it. I hope that I phrased it in the way that I do now. At any rate, my question is this. Are the Government prepared to agree that a new approach to sentencing is required? That is the issue I raise today. I hope for the best from the noble Viscount.

Sentencing now occupies the centre of the stage in any discussion. That has been increasingly so in the many debates in this House. I am in the course of preparing a book Punishment and the Punished, and in doing so I have interviewed a great many persons who are well qualified in this field, from ex-Home office Ministers to representatives of penal organisations and ex-prisoners. All these discussions in the end come down to the conclusion that we must somehow or other secure a reduction in the prison population. That can only be achieved by an improvement in sentencing policy.

A highly qualified committee of the lawyers' society, Justice, in its report last year reached this conclusion: If judicial discretion in sentencing is not to be totally unfettered, it must be exercised within the context of a coherent rationale arising from some underlying philosophy".

It went on to say that the May Committee failed to find such an underlying philosophy and Parliament has shown a marked reluctance to find one. Therefore, tonight we are engaged, one might say, on an early stage of the search for an underlying rationale on sentencing.

That was the situation before the riots began in Strangeways and spread to other prisons. For example, before Strangeways I had interviewed a score of people, as I mentioned earlier, who are well qualified in this field. Therefore, my general conclusions were reached before the riots. We have all read a great deal about the riots. We must not forget that two people died as a result of them, so whenever we add up the pr of it and loss we must remember that people died and others were badly injured.

At any rate, before Strangeways we were saying in many debates in this House—some noble Lords speaking tonight have said this many times—that we are sending too many people to prison. Obviously Strangeways drives home that lesson. We read in the papers that 1, 600 people were in Strangeways—a prison built for 1,000 in the last century. One would assume that in this century it would contain rather less than 1,000 if it is to be a civilised prison. Certainly, I am not going to say that the riots were justified. People were killed and undoubtedly brutality occurred. The lesson was driven home that Strangeways was grossly overcrowded.

In this highly controversial area it is difficult to speak of general agreement. I will not commit the Minister to agree at this stage, though he may when he winds up, but I believe that almost everyone here will agree that at the moment we send more people to prison than any other European country. We send them there because the judges and the magistrates so decide.

When I said that on an earlier occasion one noble Lord, who is an eminent man, said that we send people to prison because they commit all these crimes. That was a plausible intervention though it did not amount to much. It was stated authoritatively by the Government not so very long ago that we in this country are not more criminal than people in other countries. In their wisdom the judges and magistrates in this country send more people to prison than do their counterparts in other countries. The conclusion seemed to follow at an early stage of the discussion that the judiciary must be persuaded to pass less severe sentences or sentences in which confinement to prison is less favoured than alternative treatment outside prison.

I have not time to quote it, but there was in the Sunday Correspondent an interesting article which some noble Lords may have seen. There was one point raised in the article to which I shall refer. It stated that the Government hoped that in future people will not be sent to prison unless there is no possible alternative. According to the writer of the article, who had interviewed a number of judges, the problem was that the judges thought that policy was operating already. Therefore, at the moment it is a little difficult to convince the judges that a change or an improvement in attitude is required on their part.

As I have said, sentencing holds centre stage today. That was not always so because when I first raised the subject of prisons in a debate nearly 34 years ago it was not in my mind or those of other speakers, as I recall. Over the years that followed, sentencing did not feature very strongly. However, by 1981 sentencing was in the minds of those discussing such questions. At that time the noble Viscount, Lord Whitelaw, was the Home Secretary, and he made public efforts to persuade the judges to pass less severe sentences. He seemed to be dedicated to that policy. Unfortunately, he got the bird, to use a crude expression, at the Conservative Party Conference in that year. He was more or less forced to drop such ideas.

His successor, Sir Leon Brittan, drew his own conclusions and moved painfully in the opposite direction. In penal reform circles since 1981 there has been a demand for lighter sentences. Now we all seem to be agreed that that is what is required. How is that to be achieved without undermining what is usually called the independence of the judiciary? I can remember being rebuked for appearing to infringe the very outskirts of that independence which hitherto had been regarded as sacred in much of the discussion.

I make it plain at once that I am not for one moment suggesting that we should interfere with particular judgments. They must be left to the judiciary. It would be monstrous and would suggest an almost totalitarian regime if the Government were allowed to interfere with particular decisions. I speak with all the emphasis available to me in support of my main contention. Other noble Lords will consider the issue today and later and decide how far they agree. My main contention is that the general level of sentencing in our country is as much the responsibility of the elected government of the day as the general standards of health or education.

The government of the day simply cannot, with honour or decency, divest themselves of that responsibility. In practice this means that judges must act within a framework which meets with the approval of the elected government. I profoundly hope that as far as possible a national consensus is secured in support of a national sentencing policy. Judges may have a difficult task but they are eminent and brilliant men and will be able to cope with it. However, they must on no account feel that they are being asked to implement a partisan initiative—the policy of one party. I have in my mind a clear approach.

Various fairly obvious proposals on which I can only touch today should be considered to give effect to this approach. I agree with those who suggest that maximum penalties over a wide range of offences should be lowered. That is indisputable. However, the benefits accruing from such a development will be limited in the short run. What we must all find encouraging is the reduction in the number of children and young persons sent to prison in the past few years under the impact of laws passed in 1982 and 1938. The effect of those laws has made it harder for the judiciary to send children and young persons to prison without giving powerful reasons for doing so.

In the White Paper the Government seem to have in mind similar proposals for dealing with adults. I hope and believe that much progress can be made along that line. What I have said up to now is not sufficient to satisfy penal reformers. I cannot do better than quote from the comments of the Prison Reform Trust, which has done such splendid work in the past few years, on the White Paper Crime, Justice and Protecting the Public. It begins with a well-deserved compliment: In the view of the Prison Reform Trust, the 1990 Criminal Justice White Paper is an important step towards a more rational penal system and one that is less reliant upon custody".

The trust approves of the White Paper to that extent and I go along with it. But it rapidly proceeds to qualify its phrase, again in my opinion advisedly. The trust states: The White Paper is a gamble. By continuing to invest a wide discretion in the courts, the government has ceded much of its responsibility for planning the criminal justice system to the senior judiciary. There can be no guarantee that this gamble will come of f".

The Prison Reform Trust leaves us in little doubt that it believes that the Government's gamble will fail and that they will end up increasing the number of people in prison.

Perhaps I may pause for a moment and ask what people would consider to be a reasonable reduction in the total number of prisoners over the next few years. It has been suggested that a reduction of 14,000 in eight years might be reasonable. The Government go to the opposite extreme. The Home office has issued a projection of an increase of 14,000, not a reduction of 14,000, over the next eight years. That official Home office forecast has been issued since the publication of the White Paper. I gave the Minister notice of this question. Does he repudiate that Home office forecast, and will he substitute for it a more encouraging forecast?

Thus far I have gone along with the comments of the Prison Reform Trust. However, that does not mean that I regard it as being infallible. For example, I am much more doubtful about the first sentence of the final paragraph of its summary. It reads: We also regret that, in its general tenor, the White Paper emphasises punishment to the virtual exclusion of any other objective of the criminal justice system.

As Members of the House will know from earlier debates, I am far from objecting to the idea of punishment in the community. There is much to be said for it. However, tremendous efforts must be made to ensure that if the policy is ever carried out, it must be carried out with the full co-operation of the probation service. I shall not pursue that aspect today; but noble Lords may remember that I opened a debate on the subject of the probation service in January.

In conclusion, I should like to lend my very strong support to the idea of sentencing councils (which are favoured by the Prison Reform Trust) which lay down guidelines to be followed by the courts in normal cases. There are various forms of sentencing councils and various ways in which this idea can be put into effect. It may be that other speakers will develop those ideas. I shall confine myself now to offering my very strong support for the idea.

A former Home office official of much sagacity offered the opinion to me when I was interviewing him that no politicians would ever stand up to public opinion in the sense that they would never want to appear to be adopting a s of t policy. He said that if we wanted a more enlightened sentencing policy, we would have to enforce it through a more efficient research department attached to the appeal courts. I do not take that low view of politicians.

The time has come when the public want to see a more enlightened sentencing policy. I think that the public—although we all detest crime, especially when we read about some beastly outbreak—has begun to feel, as I do, that our prison system at the present time is a disgrace to a Christian country, and that people want some change to be brought about in this connection.

9.41 p.m.

Lord Ackner

My Lords, the noble Earl, Lord Longford, cunningly cast a fly across my noble and learned friend the Lord Chancellor when he sent him a copy of the first draft of his speech, wisely anticipating that it would be sent on by my noble and learned friend to the senior Law Lord. So courteous, and indeed elegant a gauntlet could hardly be ignored. It appears to be a tradition in the Law Lords' Corridor, and one of which I am not wholly in favour, that when they decide to conscript a volunteer, they do so basically on an alphabetical process, rather than one of merit.

Perhaps I may start by reminding your Lordships of the wise observation made by the noble Lord, Lord Irvine of Lairg, in the debate on 30th November 1988 when he said it should be remembered that the judiciary are responsible neither for crime nor for the conditions in prison.

This is the first time that I have experienced the considerable honour of speaking immediately before the noble Lord, Lord Hutchinson of Lullington, who is an old sparring partner of mine. In the absence of the noble Lord, Lord Mishcon, to cry moderation, I have a distinct feeling of unease. Therefore, I think that I should, in anticipation of what he may say, remind your Lordships that in the same debate to which I referred he posed what was intended to be a highly critical question; namely, why had the average sentence imposed in the Crown Courts increased, as he then added, despite the guidelines issued by the Lord Chief Justice? I endeavoured to explain that they had increased because of the Lord Chief Justice's guidelines, and let me again explain why. With statistics that I had obtained I demonstrated to the House that, whereas sentences for offences of theft, handling stolen property, fraud and non-domestic burglary had gone down, there had been a significant increase in serious offences, for which the public required, and were entitled to receive, protection: offences of violence against the person, robbery and sexual and drug offences. I quoted the right honourable gentleman the Home Secretary speaking in the same month in another place when he said that sentences for serious crimes were then increasingly severe and properly reflected the revulsion that we all feel in regard to such crimes.

Your Lordships will find in Chapter 3 of the White Paper entitled Crime, Justice and Protecting the Public, issued in February of this year and referred to by the noble Earl, a table which conveniently sets out the number of offenders sentenced to immediate custody in 1978, 1983 and 1988. I shall merely invite your Lordships' attention to the contrast in the five years between 1983 and 1988, the last year for which we have statistics. Paragraph 3.4 of the White Paper reads: Compared with the five years before, the number of prisoners sentenced for rape, other sexual offences and drug offences has doubled. Those convicted of robbery had increased by 57 per cent. and of violence against the person by 31 per cent. On the other hand, those convicted of burglary, theft and related offences had fallen from 52 per cent. of the sentenced prisoners in 1983 to 35 per cent. in 1988". Since 1983 the number of offenders under 17 sentenced to custody has been halved and there has been no discernible increase in the number of offences committed by juveniles. In the last year there has been a significant drop in the number of young adults aged 17 to 20 sentenced to custody. That is a clear indication that the sentencing policy is following the appropriate course: the sentences for those involved in offences relating to property have gone down and the sentences of those convicted of the serious offences have, as the Government and the public wish, gone up.

Again I refer to the White Paper and in particular to paragraph 3.12, which states: Parliament guides the courts on the relative gravity of offences when it sets the maximum penalties for them. It has recently increased the maximum penalties for some violent and sexual crimes, including cruelty to children and attempted rape. More offenders are given custodial sentences for violent and sexual crimes than in the past and the average sentence lengths for those offences in the Crown Court for men over 21 have increased". I am bound to admit that I belong to the school that thinks that the courts should have particular regard to the fate of the victims rather than the pre-natal experiences of the offenders. I was therefore happy to see in the same paragaph of the White Paper a confirmation that the Court of Appeal has indicated that sentences should be longer if the victims of violent crimes are very young or very old and thus especially vulnerable. Paragraph 3.13 states: The Government proposes to take this approach further by giving the Crown Court power to give custodial sentences longer than would be justified by the seriousness of the offence to persistent violent and sexual offenders, if this is necessary to protect the public from serious harm. There are a small number of offenders who become progressively more dangerous and who are a real risk to public safety. Some will be mentally disordered and can be detained under mental health legislation. For those convicted of the most serious crimes, a sentence of life imprisonment may be justified". The White Paper also records in paragraph 3.6 that the Court of Appeal has made it clear that a custodial sentence should be given only when it is necessary and that, if it is necessary, the sentences should be as short as is consistent with the need for punishment, particularly for property offences. This is and has been the attitude of the Court of Appeal responsible for laying down guidelines for the past 10 years. The White Paper might as well have referred to the well-known case in 1980 of R v. Bibi in which the Lord Chief Justice said, 10 years ago: This case opens up wide horizons because it is no secret that our prisons at the moment are dangerously overcrowded. So much so that sentencing courts must be particularly careful to examine each case to ensure that if an immediate custodial sentence is necessary, the sentence is as short as possible consistent only with the duty to protect the interests of the public and to punish and deter the criminal". The Judicial Studies Board, a special board headed by a judge of the Court of Appeal, currently Lord Justice Glidewell, has for some time issued and currently issues to judges the following instructions headed "The Current Approach to Sentencing", which is a kind of route card. It reads as follows: In every case, the following steps must be taken in the order in which they appear below. Can a non-custodial sentence be passed? If so, such a sentence must be imposed. If a non-custodial sentence is out of the question, is it possible to make a Community Service Order as an alternative to a short custodial sentence? If it is not possible to make a Community Service Order, is it possible to suspend the whole of the prison sentence which must inevitably follow? If so, you must suspend the whole of the sentence you impose, but remember that you must determine the length of the sentence on the merits of the case. It is wrong to increase the length of the sentence simply because you are suspending it. If it is not possible to suspend the whole sentence is it possible to pass a very short immediate sentence without any suspension? If a short sentence is insufficient to meet the needs of the case, is it possible to suspend part of a longer sentence which must necessarily follow? If it is possible, then a partially suspended sentence should be imposed and you must decide what proportion of the whole must be served. If a partially suspended sentence is inappropriate what is the least possible total sentence which can be imposed bearing in mind the circumstances of the case and the record of the of fender". Those are the instructions. We all know—all the judges know—that prison is of ten counter-productive. It is an expensive method of warehousing people. On occasions it has to be used because it is the only way of protecting society.

Perhaps I may now deal with comparisons which are made with other countries. Much is made of comparisons between the prison statistics in this country and those in Europe. However, I have yet to meet a criminologist who believes that without a study in depth of the conditions in those countries any significant inferences can be drawn from such a comparison.

It is interesting to record that only very recently, on 7th May this year in The Times, the legal affairs correspondent, Miss Frances Gibb, published an article headed "Big range found in sentencing policies:". The article states: Startling disparities in sentences imposed by courts of different countries for crimes including rape and armed robbery are shown in the preliminary findings of a new international survey of sentencing practice". The crimes of rape and robbery were considered in the survey. The same set of circumstances was presented to judges and expert lawyers in a number of countries who specialised in crime. The facts that were assumed were that the rapist was a man aged 27 who attacked a girl of 16. The results of that survey showed that in England the sentence would be seven to 10 years. In Ireland it would be 18 months One can imagine the call for the resignation of any English judge who sentenced such an of fender to 18 months. In Denmark the sentence would be two to three years. The same demand for the resignation of the judge concerned would follow if that sentence were meted out in England. The Netherlands has a slightly higher sentence of three to five years for such a crime.

The assumed facts in regard to the robbery were that the robber was 19 years old, unemployed, and had taken part in an £800,000 armed raid. In England the sentence would have been 10 to 15 years. The same sentence would have been meted out in Scotland. In Norway the sentence would have been five years and in Ireland four to six years. In the Netherlands it would be the same length of time. I refer to two crimes for which the sentences given in England would have been the only acceptable sentences in England. The sentences given in other countries which I have described would have been strongly criticised. Judges have in the past been criticised for not reflecting public opinion in their sentences. Rape is such a case. Your Lordships may remember that another case in point is that of causing death by reckless driving. There has been strong criticism in that regard.

The White Paper records that in 1988 there were 100 people in prison in England and Wales for every 100,000 people in the population. In France the figure is 81 and in West Germany, despite a considerably different approach recently, the figure is 85. There is not a great difference there. Canada has a higher figure than ours, at 109. The United States of America has a figure that is three and a half times our figure, at 350.

The noble Earl, Lord Longford, raised two points, one of which I agreed with and one of which I did not agree with. I shall consider the latter point first. The noble Earl said that he lent his strong support to the idea of sentencing councils laying down guidelines to be followed by courts in normal cases. In a debate in November 1988 the noble Lord, Lord Irvine, said that he wished to make one thing absolutely plain; namely, that judicial independence must never be compromised. He proposed a sentencing commission consisting of judges and magistrates at all levels and all others who are experts in the field such as prison governors, probation officers and representatives of interested bodies. He observed that Canada has done this with great success.

However, the statistics to which I have just made reference hardly bear out that point. I interpose that in the United States the Executive has laid down a points system which requires more the intervention of a computer than a judge to fix sentences. Yet the numbers in prison in the United States are three and a half times our numbers.

The noble Lord suggested that that commission would fashion guidelines and principles for the courts, which would, however, retain their discretion to apply them. One wonders how. The noble Lord observed: We should ask ourselves why the courts sentence as they do". Once more, I hope that I can provide a short and satisfactory answer to that question.

Over the years the Court of Appeal has laid down sentencing guidelines encompassing imprisonment in general—I have already quoted one case—and offences in particular; namely, causing death by reckless driving, riot, violence at football matches, robbery, kidnapping, rape, unlawful sexual intercourse, buggery, gross indecency, living on the earnings of prostitutes, theft in breach of trust, benefits frauds, offences involving drugs and offences involving obscene publications. Very recently, in exercising the new powers under Section 36 of the Criminal Justice Act 1988 to increase inadequate sentences, guidelines were recently provided in the very difficult subject of incest.

Those guidelines are all published. They are contained in the Judicial Studies Board Handbook. I have never heard any public criticism by criminologists, by police officers or by welfare authorities of those guidelines. Until there is any criticism, I still do not understand why they are not adequate.

The point on which I agree with the noble Earl, Lord Longford, as does the Lord Chief Justice, is the suggestion that there should be a research unit assisting the Court of Appeal. It is frequently not appreciated how much judges welcome and depend upon other people's views. For the past fortnight I have sat in the Appellate Committee. The case which we have been hearing is no different from any other case, save that we sat seven rather than five. We had the advantage of authorities from New Zealand, from Canada, from Australia and the United States and learned articles from Professors at home and abroad. By all means let the judges have further and better assistance, but do not interfere with their discretion.

Finally, perhaps I may suggest that the answer to the question posed by this debate is as follows. A new approach to sentencing is being provided by the Government's proposals contained in their White Paper by the provision of new powers to enable more offenders to be punished in the community, and it can be confidently expected that proper use will be made of those new facilities by the judiciary.

10.2 p.m.

Lord Hutchinson of Lullington

My Lords, the Question that the noble Earl raised so eloquently this evening can be summarised in the language of the recently published Government White Paper: are convicted persons getting their just deserts? Clearly, the answer to the question must be "No, that is why we have produced the White Paper".

The speech of the noble and learned Lord, Lord Ackner, to which we have just had the pleasure of listening, has been a breakthrough in our many debates on penal affairs in this House. I am enormously grateful to him for having participated in the debate. He has illustrated in those 15 or so miniates the basis on which the present senior judiciary approach the sentencing problem. In his apologia for that approach he has illustrated the gulf which, alas, exists between the senior judiciary in relation to sentencing and Western European judicial views on the question of how to deal with those who of fend against the law. He has portrayed the basic problem which we now face in sentencing in this country. He says that sentences reflect the revulsion which we all feel in relation to sexual and violent offences. Sentences, he is glad to say, have gone up in recent years in relation to those offences. He compared those sentences with sentences in other European countries for similar forms of offence of rape and indicated that in other countries the sentences passed are at least half of those currently passed in this country. He did so not in order to question whether there may be some good reason for that, but simply in order to say that, if those sentences were passed in this country, there would be a demand for the resignation of the judge concerned. They would simply not be acceptable. They are not in line with what the public demands.

With the greatest respect to the noble and learned Lord, surely the days of that attitude are now over, as is illustrated in the Government White Paper. What has that attitude achieved? It has achieved Strangeways, simply more and longer sentences, more and longer time in prison and more crime. It is a bankrupt policy.

However one looks at them, the statistics prove that this country continues to be the most punitive country in Europe. of all men convicted of indictable offences, 20 per cent. go to prison for longer periods than was the case 10 years ago. Yet, in spite of what the noble and learned Lord said, fewer than one quarter of those persons have committed violent or sexual crimes. Half those people are reconvicted within two years. Among the teenagers who are sent into custody, 64 per cent. are reconvicted within two years. As I have already said and as the noble Earl said, in the case of Strangeways, the courts sent 1, 600 prisoners to an establishment built to house 970. If those figures are not an indictment of our criminal courts, what are they?

The Minister will be surprised to hear that the remainder of my speech will consist almost entirely of praise for the Home office, particularly praise for Mr. John Patten who has succeeded more than any other Minister in putting sentencing on the map.

The White Paper is a breakthrough. It marks an exciting moment in the long struggle for penal reform, and, taken alongside the Woolf inquiry with its remarkably gifted chairman and assessors, 1990 may well be a watershed in the way in which we deal with those convicted of crime. I am far more optimistic than is the noble Earl or the Prison Reform Trust.

I should like to quote some of the more remarkable passages in the White Paper. For example, it states: There is still much uncertainty and little guidance about the principles which should govern sentencing". Proposals are made, for a new and more coherent statutory framework". On custody the White Paper states: There is a growing awareness that prison is usually not the best way of dealing with less serious property crimes". It also states: No one regards imprisonment as an effective means of reform … Custody can have a devastating effect on prisoners and their families … Imprisonment makes it more difficult to compensate victims and allows for the evasion of all responsibility". Pre-eminently it states: Legislation on the use of custody for young offenders shows it is possible for Parliament to give guidance without placing intolerable restrictions on the court's discretion". The White Paper then suggests that courts should be required to consider a report from the probation service before sentencing, a report which the White Paper says is to include detailed information as to how the of fender can be punished in the community. If a custodial sentence is nonetheless to be passed, the court must fulfil certain criteria and in every case give their reasons for such a sentence. Furthermore, sentencers should be trained by the Judicial Studies Board to give effect to these new policies.

Here at long last is a government recognising that Parliament has a clear role in laying down sentencing policy for the courts and furthermore requiring sentencers to be trained to give effect to it. I feel that many of us in this House, and pre-eminently the noble Earl, have not after all laboured in vain. We find here the very matter which the noble Earl was saying only a short time ago was so essential in a sentencing policy.

There is more to praise in the White Paper. I refer to the abolition of the partly suspended and extended sentences; the recognition that repeated financial or community penalties are in order without leading inevitably to custody where the offences themselves may merit such penalties; the duty of the courts to consider the cost of different penalties; the recognition that a probation order is in fact a sentence; the duty of the probation service to provide feedback to the courts on the effect of their sentences; the raising of the jurisdiction of the newly named youth court to cover those up to the age of 18; the means-related fines and the lowering of certain maximum sentences. Those are all admirable and I suggest worthy of full support.

My main reservations on the proposals in the White Paper are for the curfew electronic monitoring and the power to give longer sentences for sexual or violent offences. The Carlisle proposals for the rationalisation of parole depend, as the report urges, on a determined attempt by the Government to secure a reduction in the length of all sentences". Surely the relative gravity of these offences can be marked by a reduction in other sentences. I recognise that political concessions must be made to the inevitable Tory hard-liners. However, I urge the Minister to remember the appalling results of Sir Leon Brittan's attempts to do just that.

As a sentencer I was next door to the bailiwick of the noble and learned Lord, Lord Ackner, who in those days was but a modest recorder. If there is anything I learned as a sentencer in relation to young adults, it was the crucial role of patience. Adolescence is a disturbing and difficult time—a thousand times more so when you come from a disadvantaged or broken family. Adolescents grow out of their criminality. Such offenders cannot shoulder the kind of restrictions and responsibilities which may be appropriate no doubt to public school delinquents. If too many requirements are imposed, the higher is the risk that many such offenders will be returned to court and imprisoned for a breach of their conditions. If the new proposed combined orders are used to replace existing community penalties instead of replacing custody, that indeed may well happen.

I wish to make two pleas to the Minister who is representing the Government this evening. Can the new legislation concentrate specifically on the problems of young adults? They are the key to the whole problem because young adults and juveniles commit the vast majority of crime in this country. The remarkable success in reducing juvenile crime and the numbers sent into custody has been due mainly to three factors. They are: special funding; inter-agency co-operation; and bringing in the voluntary bodies.

The White Paper recognises the value of inter-agency co-operation; but it does not spell out what that means. It is the bringing together on a continuing basis of the key individuals from all the criminal justice organisations in each particular area including the judiciary, the magistracy, the police and the local authority. Nor does it emphasise the importance of continuing public explanation and education at every stage because the local community must be carried along. Will the Minister seriously consider calling for the appointment in each criminal court complex—because the problem exists mainly in urban areas or inner cities—of one judge to preside over a young person's court assisted by experienced justices from the juvenile court? Into that court would go all cases involving young adults. The judge could chair the inter-agency committee, and the role would be enormously appealing to some members of the judiciary. It would have no resource implication whatever. It would be a start in involving the judiciary in these general social problems.

My second plea to the Minister is to think yet again about the question of a sentencing council. I agree entirely with what was said by the noble Earl in the opening debate. I do not believe that the Judicial Studies Board can fulfil the role of giving necessary guidance to sentencers. It is too close to the legal hierarchy. It reflects, inevitably, the thinking of senior judges; and, surely, that advice should come from an entirely independent body with a broad input of expertise. Perhaps it could evolve from the Judicial Studies Board but would do so only with the encouragement of the Government.

Finally, I ask the Government to address the disturbing factor of the over-representation of black people in prison. If you are black, it remains eight times as likely that you will be sent to prison. Surely provision should be made in the legislation for ethnic monitoring of the whole criminal system.

I end where I began by paying a sincere tribute to the Government for their radical proposals for reducing the use of imprisonment. The main thrust of those proposals should surely receive the enthusiastic support of all those who have fought so hard and so long for radical measures of penal reform.

10.20 p.m.

Lord Fitt

My Lords, it is always with reluctance that an untrained layman intervenes in a debate about the judiciary or the judges. I have noticed that in both Houses. However, I intend to take advantage of the debate in the name of my noble friend Lord Longford this evening. This is the first opportunity that I have had since last Monday, when I sat in on the Sir John May inquiry, to address the House on the Annie Maguire case, which I have mentioned before in this House and in another place.

There is always reluctance to question the independence of the judiciary because it is supposed to comprise people with legal training and knowledge of the legal system who cannot make mistakes. However, I believe that it will be conceded that mistakes can be made by judges, juries and the Home Secretary.

In 1974 explosions took place in Guildford in which five soldiers were killed. Arising from those explosions, four young men were sentenced to prison. I listened particularly to the words of my noble friend when he said that sentences must reflect the revulsion of the community in any given case. There is no doubt about the revulsion of all decent people in England and Ireland at that time. Two of those men were sentenced respectively to 30 years and 35 years in prison. That expressed the revulsion of the community.

Arising from that, allegedly on the word of one of those convicted, the police surrounded the house of Annie Maguire and her family. Seven in all were arrested and taken to Paddington Green police station. Allegedly, nitroglycerine explosive material was found on their hands. They were all sentenced to very long terms of imprisonment. Annie Maguire and her husband received 14 years, her brother 12 years, a friend of the family 10 years, and her young son six years; another received four years.

I became involved in that case because one of those who was sentenced was Giuseppe Conlon. I visited him in prison. As I have said in the past 24 or 48 hours, anyone who spoke to that man for a second would have realised his total innocence.

After a number of years in prison and after he had received many visits from me, I had a call to go to the prison. I was told that he was dying. Before he died he pleaded with me. He took of f his oxygen inhaler and said, "Gerry, I realise that I am going to die but I plead with you to continue to prove my innocence even after my death".

I took that as a total commitment and it stayed with me until last Monday. That is why I am speaking here this evening. I began a campaign to prove the innocence of Giuseppe Conlon and in so doing I knew that I should prove the innocence of his six co-defendants. I met a whole succession of Home Secretaries, the first being the noble Viscount, Lord Whitelaw, then Merlyn Rees, and then the noble Lord, Lord Jenkins of Hillhead. They all told me, "Look, we have gone through the judicial system. Our judicial system cannot be faulted or questioned. The British judicial system is the best in the world. No one can query its verdicts".

I continued to query the verdicts and the convictions in those cases. Over a period of years I began to enlist support. When I first began the campaign I was Gerry Fitt, the West Belfast MP. Some people perhaps thought that I was engaged in a constituency duty and trying to act on behalf of one of my constituents. Anyone who knew my record in politics in Northern Ireland would know that not for a single second would I go out of my way to help anyone where I had the slightest suspicion that they were involved in terrorist activities. At that time, over many years and up to the present time I have been the victim of terrorist abuse.

I began the campaign. For the first few months it was lonely, and then I enlisted the support of Sir John Biggs-Davison, the Conservative MP. Again, his attitude towards terrorism could not be questioned. I then enlisted the support of a Labour MP, Chris Price. I also enlisted the support of Cardinal Hume; then Sir John Wheeler, the MP for the constituency in which Annie Maguire lived. I approached the noble and learned Lords, Lord Scarman and Lord Devlin; then former Home Secretaries Merlyn Rees and the noble Lord, Lord Jenkins.

I persevered and succeeded in obtaining 204 signatures across a broad spectrum of the House of Commons, even from the extreme Right wing. What would have happened had I not done that? I had to enlist that support; I had to put a great deal of energy into enlising those eminent persons, with the integrity of the noble and learned Lords, Lord Scarman and Lord Devlin, two former Home Secretaries, and 204 MPs. It was only because I was able to enlist that support and through delegation after delegation to a succession of Home Secretaries that the Home office eventually said, "Yes, we will look at this case again".

I was pleading particularly on behalf of Annie Maguire; but the Guildford four case was so closely interlinked that the Home office decided to look at both cases. It found that the Guildford four case was totally unsafe and the four prisoners were released after serving 15 years in prison; 15 years were taken away from their lives.

In response to the release of those prisoners the Government decided to set up a tribunal which is now sitting under the chairmanship of Sir John May. It was given the job of looking into the circumstances surrounding the convictions of the Guildford four and Annie Maguire and her family. I attended the tribunal on Monday morning and listened to Mr. Clarke, counsel to the tribunal. He read out a document which contained many aspects of the case, the main one being that new forensic evidence had come to the fore which made the convictions of Annie Maguire and her family totally unsafe. That is the recommendation to be acted upon by Sir John May.

The family are now all released from prison. They have all served their sentences. If they had been guilty they could have run away and hidden, but they were determined at my instigation and of their own volition to fight tenaciously to prove their innocence. That innocence has now almost certainly been agreed to by the judicial system.

However, we must have some other mechanism between the Court of Appeal and someone serving 15 years. After the Court of Appeal has given its decision, "No, we agree with the sentence in court", there should be some other mechanism, without having to wait 15 years, to allow the Government to intervene where there is obvious public disquiet, as there was in the case of Annie Maguire.

It was only the public disquiet and the fact that so many eminent people had gone out of their way and put their reputations at stake that forced or permitted the Home Secretary to set up the inquiry which eventually found the Guildford four and Annie Maguire innocent. I believe that such a system without amendment, where injustices can continue, is very wrong indeed. Some means must be found for review where there is obvious public disquiet. I know that judges will say that it would only be necessary to mount a public campaign and foster public disquiet. I do not believe that that will happen.

There is a case in Northern Ireland at the moment where four members of the Ulster Defence Regiment—they are not of my religion or political persuasion—have been sentenced allegedly for the murder of a Catholic. From what I hear there is, again, the possibility of a miscarriage of justice. As I said, those men would not agree with me on religion or politics but I believe there could be a possibility of a miscarriage of justice.

I believe that the two cases to which I have referred give some form of justification for the anti-British element that there has always been and always will be in Ireland. They will go around with the trumpets of triumph that we saw after Guildford saying that it proves the British judicial system is anti-Irish and that an Irishman cannot get justice before a British court. I have never believed that. I accept that there are imperfections in the British judicial system, but something must be done to inquire into the validity of or justification for sentences where 10 or 15 years have been taken out of the lives of people who were totally innocent.

The Irish judicial system too leaves a lot to be desired. I say that as an Irishman. I have been absolutely appalled and disgusted at some of the decisions handed down by the Irish Supreme Court over recent months. The British people are entitled to feel aggrieved at some of those decisions. The Irish Supreme Court, consisting of the most eminent legal luminaries in the land, decided to release two convicted IRA men who escaped from Northern Ireland and are now living in Dublin. The court refused to extradite them on the ground that they had committed a political offence.

The Winchester Three were released on a technicality. Many people in Ireland and many in this country wonder what the Winchester Three were doing on the land of Mr. Tom King with balaclava helmets, binoculars, £4, 500 and a book with the names and addresses of eminent figures in public life. I do not believe that they are entirely innocent; yet there was a great hullabaloo in Ireland that they were innocent and were victims of British injustice.

Only last week in the House of Commons the Prime Minister was asked whether she would be confident that if the murderer of the young soldier, Sergeant Chapman, last week were to reach Ireland he would be extradited back to this country by the courts. She said that she could not be confident. I would not be confident either. I see that some of the journalists in Ireland are saying that the Prime Minister should not have said that because it is not good for Anglo-Irish relations. If one has to keep one's mouth shut and say nothing in regard to those decisions of the Irish courts then Anglo-Irish relations stand for nothing.

There is, however, a necessity for the British judicial system to show to Ireland and the world that there is not an anti-Irish bias. The view in Ireland is that where there is a terrorist atrocity the police will run out and grab the first Irishmen they can get and take them before the courts, and that they will be sentenced to 25 or 30 years' imprisonment. I do not believe that to be true. It is not in the interests of the police or the British judicial system to send innocent persons to prison. If such people are sent to prison some people will say that it was a difficult situation and that the police were under pressure; that those people were arrested and sentenced because it eased the tension then existing as a result of the commission of the crime. That might be a short-term gain, but 15 years later there will be someone like me proving that a wrong decision had been taken in those circumstances.

The Irish Extradition Act 1987 will have to be amended to close every possible loophole in order to ensure that if a person is suspected of having committed a terrorist offence, he can either be extradited to Northern Ireland or to Britain. I do not think that there can be any room left for the Supreme Court in Dublin to hand down decisions which say that, because Ireland is partitioned, the young men are misguided Irish patriots who are only fighting for their country. If the war against terrorism is ever to be won, it must be won with the co-operation of this Government and the Irish Government.

Anyone backing away from that responsibility has the awful burden of knowing that he is lending credence to the continuation of this campaign. There will be further debates on this subject. I say deliberately to the noble and learned Lord, Lord Ackner, and to the noble Lord, Lord Hutchinson, that judges are not the sole authorities in the situations that I have just illustrated. They will say that the jury have listened to the evidence before them and to the directions given. The judges will say that they have carried out their responsibilities. If that is the case and the judges have no further responsibility at either the main court or the appeal court, then the Home office must accept responsibility.

It is not right that a person's freedom should be decided according to whether or not eminent people outside the judiciary, like Robert Kee and the noble Lord, Lord Annan, are involved. What would have happened if we had decided not to lend our weight to the campaign to prove the Maguires innocent? It was a long campaign to prove the innocence of Annie Maguire and her family. I hope that never again a case such as that occurs in this country. The Home office should take note of all the circumstances and of all the years that have elapsed in which the family was wrecked and devastated, to use the words of the noble Lord, Lord Hutchinson, by the years spent in prison knowing that they were totally innocent.

Some other mechanism must be found to consider a case which causes so much disquiet. The Home office, either in conjunction with the appeal court or on its own, and thereby overriding the appeal court, must reach a decision. I know that the judiciary will not want to be overriden by politicians because they will say that they change from government to government. Some means will have to be found to make certain that the injustices connected with the Annie Maguire case in particular will never again be allowed to happen in this country.

10.39 p.m.

Lord Henderson of Brompton

My Lords, I am proud to follow the noble Lord, Lord Fitt, whom I much admire. I shall not be so eloquent in following him, except to say that I rejoice with him in the outcome of the Maguire case. I congratulate him on his magnificent persistence which has resulted in that verdict, or very near verdict.

I have always thought that one of the virtues of this House, and an incidental one, is that it can be admired as a museum. Every now and again one has a museum piece. When Lord Brockway and Lord Shinwell were speaking, I used to think that, apart from their many other qualities, they were living museum pieces in that they had learnt their oratory in the political life of the late 19th century. What an addition to our life they were. I had the same kind of feeling when the noble and learned Lord, Lord Ackner, spoke to us earlier this evening. I could not help feeling that here was another museum piece. In that respect he reminded me of Lord Brockway and Lord Shinwell.

In his jokey way he referred to warehousing people. He professed to prefer the interests of the victim to—and again he said it in his jokey way—the antenatal history of the of fender.

Lord Ackner

Prenatal, my Lords.

Lord Henderson of Brompton

That is very similar, my Lords, but a pertinent and, I am sure, judicial intervention. When he preferred, in his jokey way, the interest of the victim to the prenatal history of the of fender, he reminded me of the High Court judge who, in the days of corporal punishment, used to say that what the violent of fender really needed or wanted was a few strokes of pussy. That was the same kind of judicial humour. I am grateful to the noble and learned Lord for showing himself to us in that way as a museum piece.

I thank the noble Earl, Lord Longford, for introducing this important topic at this time. I say "at this time" because there is still an opportunity to influence the Government before the introduction of their Criminal Justice Bill which we all expect next Session, although I have heard ominous rumours that recent events may lead to the postponement of that Bill. I very much hope that the rumours are ill-founded. Many of the reforms adumbrated in the Government's mostly excellent White Paper, and indeed in their Green Papers, brook no delay, as they used to say about the reform of the House of Lords.

I refer not least to the proposal to extend to adults the requirement that sentencers should always explain their reasons for handing down a custodial sentence and rejecting a non-custodial option. They should do that in all cases except those involving the most serious offences. That is an absolutely acceptable fetter on the liberty of sentencers to do what they like within the law. It does not undermine the so-called independence of the judiciary, any more than does a maximum sentence laid down in statute. That gives a statutory guideline as would the requirement that judges and magistrates should have to explain why they have rejected a non-custodial option.

One might say that the abolition of the death penalty or of flogging had fettered the independence of the judiciary. Judges have had to put up with that hardship. Most of them are now quite happy that they no longer have those options. Equally, Parliament should have no hesitation in passing many, if not most, of the Government's recommendations in their White Paper Crime, Justice and Protecting the Public.

At this point, I should like to associate myself with what the noble Lord, Lord Hutchinson, said about Mr. John Patten, the Government and the Home office, regarding their remarkable series of state papers which we hope to see enshrined in legislation. I have some reservations about them, naturally enough; as indeed did the noble Lord.

One of the aspects I found unacceptable was that although the Government wish to lower maximum penalties, they do not propose to lower the maximum penalty for burglary of people's homes which they said in the White Paper "can be a very serious matter". However, the maximum sentence for committing burglary in people's homes is 14 years' imprisonment. Do we really need to have a maximum penalty of 14 years for burgling people's homes?

I ask: what burglarious offence of a home can justify a prison sentence of 14 years, unless it is aggravated burglary in which the of fender has committed violence? In my view, if that is the case, the extra sentence should be for the aggravation and not for the burglary; in other words, the aggravation should be dissociated from the burglary. To my mind, it is extremely excessive to keep on the statute book a sentence of 14 years for the offence of burgling people's homes. I very much hope that the Government will think again about that aspect of the matter.

Pending legislation, there are many measures which can be done (some of which are being done) which would lead to the involvement of fewer people in the criminal justice system, and hence to fewer people being sentenced to terms of imprisonment. This is relevant to the debate because assiduity in keeping people out of the criminal justice system can and does vary widely across the country, according to the policy of the police, the prosecution authorities and the judiciary. Therefore, there is no "general level"—to quote the words mentioned in the noble Earl's Question. The level fluctuates widely from area to area and illustrates the need for guidelines to be issued and abided by.

Let us take, for example, the policy of cautioning. The best practice may be debatable. Cautioning practice is left in the hands of chief constables, and therefore there is wide disparity between areas. A forward looking chief constable in an area such as Avon has extended its already good practice in cautioning children, instead of committing them to the courts, to the cautioning of adults, in conjunction with the probation service. This process has led to a saving in court time, in police time, and in probation service time. It also frees otherwise busy staff, enabling them to turn to much more rewarding tasks than committing offenders to court; for example, diversion from crime and encouraging and initiating measures of crime prevention. of course, new cautioning policy must be agreed between the police and the courts, especially as regards the citation of cautions in courts. But that aspect can be sorted out with a sympathetic bench of magistrates.

As regards the non-custodial sentences, there are wide disparities in their use between areas in the country, as there are wide disparities in the use of cautioning. That cannot be satisfactory. Here, again, I refer to the words contained in the noble Earl's Question. There can scarcely be said to be a "general level" of non-custodial sentencing because of these wide fluctuations in the country.

It cannot be fair to an of fender that someone in an area contiguous to his own should be treated differently from the way that he has been treated. Incidentally, there is wide agreement among those who know that there is no need for further types of custodial sentences. Many of the proposals contained in the Government's papers are redundant. What is needed is a greater use of the ample opportunities for passing non-custodial sentences which are already available to sentencers but which for one reason or another they are not too keen to adopt.

One means of encouraging sentencers to use non-custodial sentences that would inspire public confidence in the sentencers would be an appropriate system of day centres and residential hostels. I ask the Government to consider the possibility, which I know is considered heretical in some circles, of suspended sentences for young people. They do not exist at the moment. Apparently such sentences have been used with great success in the Federal Republic of Germany. I ask the Government to consider whether we could use suspended sentences for the more serious cases where they are considered appropriate.

As a matter of urgency the Government should think about requiring sentencers to consider the most appropriate sentence to ensure that offenders do not re- of fend. I remember at school, as I expect others do, that there were wretched boys who were punished and for whom the punishment did no more than encourage to commit further offences, which thus attracted further punishment. The same boys were punished time and time again while others seemed to escape. The punishment did no good, harsh and brutal though it was. There should have been a more understanding approach to ante-natal considerations. Harsh treatment and frequent beatings had no effect. The boy merely seemed to attract more.

There is a strong case for sentencers to consider treatment to be at least as important as punishment. Prison is counterproductive in the same way as harsh penalties were found to be counterproductive.

I should like to end by referring to an interesting conference that I attended this time last year. It was held by the Centre for Policy Studies (Mrs. Thatcher's think-tank) and it was called "Custody reconsidered". It focused on the excellent and then recently published pamphlet by Professor Andrew Ashworth, who recommended that there should be a sentencing council to include judicial and lay representatives to do the task which the Lord Chief Justice had started and which the Judicial Studies Board is, among other things, following up. I shall not discuss the sentencing council because it has been amply covered in the debate, except to say that I agree largely with Professor Ashworth.

I have always had the utmost respect for the judiciary in its findings of fact. I have had less respect for its sentencing competence. I have always felt that its sentencing function would be strengthened if it had lay assessors, but that is another matter. Among those present at the conference was Sir Frederick Lawton, who cannot be described by anyone as a wet. He recalled that his father, who was a prison governor, was of the opinion all that long time ago—well before the Second World War and perhaps before the first—that 75 percent, of those in his custody should not be there. What an indictment of the criminal justice system!

Many people believe that the same is true today—that 75 per cent. of those in prison custody should not be there. There are, for instance, 20,000 young offenders for whom non-custodial options ought to have been found; and non-custodial options should be found for their successors. Fine defaulters should not be there. There are also many mentally afflicted people who, if it is possible for them to be treated in the community, should not be there. But if not, they should be in custody under medical supervision, but not in the prison system, where they are now most unsuitably incarcerated. It is also thought—and this must be heresy to the noble and learned Lord—that many sex offenders might be successfully treated in less hostile surroundings. If they respond to treatment they may, with due caution, be integrated into the community without danger.

That amounts to a formidable number of people who should not be in penal custody. I remember that at the conference Mr. John Patten said that he was 75 per cent. NACRO in his thinking and 25 per cent. Judge Jeffreys. Perhaps we all have a little bit of Judge Jeffreys in us when we hear about the horrific crimes on which the noble and learned Lord, Lord Ackner, concentrated. However, I strongly recommend to the noble and learned Lord that he should reverse his priorities. Instead of being 75 per cent. Judge Jeffreys, he might consider being 75 per cent. NACRO in his thinking.

The younger judiciary think in the way that Mr. John Patten thinks. I hope that as they take over from the older judiciary, as Lord Justice Glidewell has taken over on the Judicial Studies Board, we can all hope for different things in the future from the judiciary.

10.57 p.m.

Baroness Ewart-Biggs

My Lords, since I came to your Lordships' House there has not been a single aspect of penal affairs which my noble friend Lord Longford has not presented to the House. The subject he has put before us this evening is as important as all the previous ones and I very much look forward to the reply that the noble Viscount will give my noble friend on the two crucial questions. The first was whether the Government are prepared to agree that a new approach to sentencing is required. The other was whether he can confirm the forecast of an increase of 14,000 in the prison population, which would be worrying.

It is important to remember at the beginning of a debate such as this that our position at the top of Western Europe's prison league table is due to punitive sentencing and not higher crime rates. That has been confirmed, as the noble Lord, Lord Hutchinson, said, by the Home Secretary. Therefore the present statistics should worry us. We have more people in prison than anywhere else in Western Europe, although we are told that four-fifths are there for non-violent crimes. The noble Lord, Lord Henderson, spoke about that.

We have prisons which are hideously overcrowded. That has now led to a series of prison riots in excess of anything that has been seen on the Continent of Europe. Police station cells are now filling up with surplus prisoners. Prison officers are under stress and care and rehabilitation of prisoners have assumed a low priority. We have also seen some high reconviction rates. I say to the noble and learned Lord, Lord Ackner, that that is the other side of the coin to his remarks that sentencing policy is following a proper course. We should consider the two sides of the matter.

On the credit side, I was happy to hear the noble Lord, Lord Hutchinson, speak with so much enthusiasm about the Government's White Paper Punishment Custody and the Community. I think everyone who has spoken agrees with the proposal for legislation allowing prison sentences only when they are necessary to protect the public from serious harm or when the offence is so serious that only a custodial sentence is justified. That would mean that the courts would have to give reasons justifying a prison sentence on one of those two grounds. The noble Lord, Lord Hutchinson, was again right when he said this could be the most radical step ever taken to reduce the use of prison sentences. We are happy to welcome the White Paper and to place as much hope in its beneficial effects as the noble Lord has expressed this evening.

I wish briefly to cover three aspects of the subject before us. I wish to give the views of a consortium of voluntary organisations called the Penal Affairs Consortium, say a few words about the system in the Netherlands and mention a point that was not made by the noble Lord, Lord Henderson, and others on a sentencing council. The Penal Affairs Consortium is a very important body. It is made up of 16 different voluntary agencies working in the penal field. It comprises agencies as different as the Prison officers Association, the Prison Governors Association, the Howard League, the Prison Reform Trust, Mew Bridge and others. Those 16 bodies meet regularly and draw up reports which they have agreed. Those who know as much about voluntary organisations as I feel I know will appreciate how hard it is for them to reach agreement on particular subjects. Those reports would be of great assistance to parliamentarians and all others involved in policy making and penal affairs.

In June of last year the consortium published its report Criteria for Imprisonment. A case was made for statutory guidelines on the use of imprisonment for adult offenders. Those 16 organisations, speaking with one voice, gave their support to the proposal which has now been put in the White Paper. They believe that if such a proposal were put into effect it would be as beneficial for adults as it has been for young people in restricting the inappropriate use of imprisonment. As I have said, great weight was given to the proposal.

I do not know how of ten our policy makers look at what is happening across the English Channel, but when one visits prisons in The Hague or elsewhere in the Netherlands, and talks to those who are involved in penal affairs, one sees an enormous difference between what is done and thought there and here. The number of prisoners in the Netherlands, which is third bottom of the Western European prison league table, is one-third of the number in England. It is important to recognise that that is not because the Dutch are less criminal. Until 1955 the Dutch prison population exceeded that of England. That low rate is due to other reasons. Public attitudes are very different from those here. The public prefer a remedial system to a punitive one.

Moreover, Dutch legislation does not allow more than one prisoner per cell. Home leave can be used flexibly so that only the most serious cases are admitted to prison. Mentally ill offenders are not held in prison but in institutions called TBSs. That means that overcrowding is an impossibility. It also means that prison staff work with difficult inmates with a genuine hope of therapy and rehabilitation.

Those are prisons in which there is no violence and no inmates are protected—there are no Rule 42 inmates. They are decent places for prison officers to work in. They are places in which a Strangeways ! situation could not arise. It is a very great achievement for a country which has a population which is just as criminal as ours to develop such a civilised prison system.

Furthermore, Dutch judges appear to have lesser expectations of imprisonment and greater expectations of rehabilitative ideals. In Britain we have a large range of alternatives to custody but, as we have seen, that has not stemmed the rise in the prison population. It is generally thought that that is because they are used as alternatives to other alternatives rather than to custody. In the Netherlands a more restricted range of alternatives used more flexibly seems to have worked better than our wider range of choices.

There is active debate within the Netherlands as to whether the criminal justice system is over or under-integrated. It is undoubtedly far more coherently integrated than that of England. The English criminal justice system lacks not only a framework for formulating criminal justice policy but also the means of implementing one were it to be constructed. The judiciary in Britain regard criminal justice policy as a contradiction in terms. Policy is viewed as inimical to their independence. That judges should be independent is a cardinal principal of criminal justice in both the Netherlands and Britain, but the British interpretation of independence allows great inequities to flow from the major variations in sentencing between courts, of which the noble Lord, Lord Henderson, spoke this evening. It is fair to say that the Dutch penal system is a model from which we could learn a great deal.

I should only like to add to what has been said about a sentencing council the fact that the 1989 NACRO report, The Real Alternative, proposed a different version of a sentencing council to that proposed by Dr. Andrew Ashworth to which the noble Lord, Lord Henderson, referred. NACRO's version of the proposal differed in making it clear that the sentencing council would be a judicial body, part of the Court of Appeal and consist solely of judges, and that the other people involved—the magistrates, the governors, and so on—would act solely as advisers. I believe that that was a slightly less worrying proposition to the judiciary.

I firmly believe that the subject of this debate is of enormous and critical importance. I hope that the Minister will have listened very carefully to the very constructive ideas which have been put before him this evening. There has been a consensus of opinion that something needs to be done to change our penal system, which at present can only be described as hideously costly, inhumane to both staff and prisoners, and also entirely irrelevant to the problem of controlling crime.

11.10 p.m.

Viscount Ullswater

My Lords, the House will be grateful to the noble Earl, Lord Longford, for giving us the opportunity to debate sentencing practice this evening. I must tell the noble Baroness, Lady Ewart-Biggs, that I have listened to the discussion with great interest.

The noble Earl asked about sentencing levels in Great Britain. I am sure that he will understand if I confine my remarks to England and Wales. He asked whether a new approach to sentencing is needed. He referred to the proposals for a new statutory framework for sentencing which was set out in the White Paper, Crime, Justice and Protecting the Public. I am sure that many noble Lords are by now familiar with the White Paper proposals. The noble Lord, Lord Hutchinson of Lullington, described the White Paper as an exciting moment in penal reform, and I agree with him.

The House gave the proposals a warm welcome upon publication on 6th February. We have been very gratified by the interest which the White Paper has stimulated. We have received over 170 responses, the overwhelming majority of which welcomed its objective to achieve a more consistent approach to sentencing. We shall consider the responses carefully. It is our intention to bring forward legislation based on the proposals as soon as parliamentary time permits.

I am glad that the proposals have the support of the noble Earl and the noble Baroness, Lady Ewart-Biggs, among others. I agree with the noble Earl that the Government should not interfere with particular judicial decisions. The independence of the judiciary is rightly regarded as a cornerstone of our liberties, but sentencing principles and sentencing practice are matters of legitimate concern to government.

The White Paper proposals are indeed very significant, but they do not represent a radically new approach. They build on developments which have taken place over the past 10 years. The Court of Appeal has encouraged a more consistent approach to sentencing in its recent guideline judgments on rape, drug trafficking and incest. The structured approach to sentencing decisions which the Court of Appeal has used has been a helpful development which has influenced our thinking.

Sentencing trends have been changing. Custody is now used more for violence and sexual offenders and less for burglary and theft. Sentencing trends have changed in the way described by the noble and learned Lord, Lord Ackner. The Court of Appeal has made it clear that a custodial sentence should be given only when it is necessary and that it should be no longer than necessary. We want to take that approach further by avoiding the use of custody for less serious, particularly property, offenders, while ensuring that the courts have adequate powers to deal with serious violent or sexual offenders.

In seeking to promote a more consistent approach to sentencing, the White Paper does not reflect an underlying lack of confidence in the way the courts sentence offenders. Much play is made of comparative statistics on sentencing practices in different courts to show that one court is more severe or lenient than its neighbour. However, I must tell the noble Lord, Lord Henderson of Brompton, that different courts will see different mixes of offences. A Home office research study carried out in 1988 on Crown Court sentencing showed that there was already considerable consistency of approach in sentencing by Crown Court judges. It is on this that we wish to build.

Nor do we confuse a consistent approach with uniformity of outcome, which is neither desirable nor attainable. We set much store by the use of judicial discretion in individual cases. Judges have shown great skill in the way in which they sentence exceptional cases. The courts will need to retain a wide discretion if they are to continue to deal justly with the great variety of crimes that come before them. For that reason we reject a rigid statutory framework or a system of mandatory or minimum sentences.

The noble Earl, Lord Longford, and the noble Lord, Lord Hutchinson, expressed their strong support for a sentencing council. The Government see no need for such a body. Composed of judges, magistrates, representatives of criminal justice services, Home office officials and academics, it would blur responsibility in particular if its guidance took the form of secondary legislation. Our proposals make the responsibilities clearer. The Government propose legislation, Parliament passes legislation and the courts interpret and implement it.

I am glad to hear from the noble and learned Lord, Lord Ackner, that both he and the Lord Chief Justice would support the idea of a research unit for the Court of Appeal. We believe that the Judicial Studies Board will play an important role in disseminating the guidance provided by the statutory framework proposed as developed in the Court of Appeal judgments.

Our intention is to provide a basic legislative framework on which the Court of Appeal can build in the future. We have seen how this works with the development of Court of Appeal guidance on the criteria for the use of custody for young offenders. The noble Earl welcomed the reductions brought about by the Criminal Justice Acts 1982 and 1988. Since 1983, as the noble and learned Lord, Lord Ackner, reminded us, the number of juvenile offenders given custodial sentences has halved, with no increase in crime by juveniles. The proposed legislation would bring a similar approach to all offenders.

The new framework which we propose will clarify the objectives of sentencing. This is essential if there is to be a consistent approach. Courts will be required to focus first and foremost on the seriousness of the offence before them when they sentence. The White Paper rightly emphasises punishment as the primary objective of sentencing. That is the only way to ensure that offenders are dealt with according to the gravity of their crimes. But other objectives are not excluded. There may be some offenders from whom the public needs to be protected. For others, we believe that the prospects for their reform are better if they are punished in the community.

The noble Baroness, Lady Ewart-Biggs, has held up the Dutch as a model for us to follow. The court's sentence will be the outcome of a series of questions, as outlined in some detail by the noble and learned Lord, Lord Ackner, and I think to a great extent welcomed by the noble Lord, Lord Hutchinson, starting with financial penalties.

We attach great importance to the award of compensation to the victim. A fine has great advantages in enabling the of fender to repay his debt to society without society having to spend even more upon him. If properly assessed, a fine can punish an of fender without damaging his opportunities for employment or his responsibilities towards his family. We intend to maximise the effectiveness of fines by improving their enforcement and assessment. The proposed unit fines scheme will have great advantage in enabling the fine to be linked more closely to an of fender's means.

Custody and community penalties would be linked in a system of graduated restrictions on an of fender's liberty. The degree of the restrictions on liberty will depend on the gravity of the offence. If the court considers financial penalties to be inadequate, it will have to consider how much restraint on liberty is needed to punish the particular crime. The court will have a wider and more flexible range of community penalties from which to choose. It will be able to combine a probation order with other disposals such as a fine or a community service order. The supervision which underpins community penalties will be strengthened to increase public and judicial confidence in them.

Custody is a serious deprivation of liberty. We believe that courts should think hard before imposing it on an of fender. In the case of all but the most serious offences, the court would need to be satisfied that custody was justified by the seriousness of the offence or needed in order to protect the public from serious harm—

The Earl of Longford

My Lords, will the Minister comment on the Home office forecast published after the White Paper that within the next eight years the number of people in prison will increase by 14,000? I gave the Minister notice of that important question.

Viscount Ullswater

My Lords, yes, I shall deal with that question if the noble Earl will be patient. The court would have to consider the options for punishing the of fender in the community which would be set out in a report from the probation service. It would have to say why it thought custody was justified. The noble Lord, Lord Henderson of Brompton, welcomed that fact most particularly.

The noble Earl, Lord Longford, referred to the recent incidents in Strangeways and elsewhere. I can only express sadness that so many lives could be so recklessly endangered and so much damage could be done in so short a time. It is deeply regrettable that there was loss of life and that both staff and prisoners suffered injuries and distress.

The noble Earl asked whether the Home office projections of prison population, which point to an increase of 12,000 to 61, 200 in 1987-88, are out of date as a result of the White Paper proposals. The long-term projections show what the population might be on the basis of trends during recent years unless our diversionary policies are further developed in line with the policies in the White Paper. Chapter 9 recognises the difficulties of accurately predicting the resource implications of the proposals and puts forward some illustrative examples. It would clearly be foolish to change the population projections on the basis of proposals which have not yet been approved by Parliament.

The noble Lord, Lord Hutchinson, asked whether there could be a judge in each criminal court complex who could be given special responsibility for juveniles. That is a responsibility of the Lord Chancellor's Department but it is an interesting idea. I shall pass it on to my noble and learned friend.

The noble Lord also asked about ethnic minorities. A more consistent approach to sentencing within the new statutory framework should ensure that all defendants, including those from the ethnic minorities, are fairly treated. The White Paper makes it clear that there should be no discrimination on grounds of race or sex.

The noble Lord, Lord Fitt, raised the case of the Maguires. I must say that Sir John May's inquiry into the cases of the Guildford Four and the Maguires is considering the circumstances surrounding the Maguires' convictions. My right honourable friend will respond to the inquiry's report when he has received it. I have noted what the noble Lord said about that and other cases. However, I am sure that he and other noble Lords will understand that I can comment no further until the report has been received.

The noble Lord, Lord Henderson, asked why we need to retain the penalty of 14 years for domestic burglary. We believe that it is right to retain 14 years as the maximum penalty for domestic burglary to mark the clear distinction which most people make between this and other burglaries. Some burglaries of homes, especially those where houses are ransacked and soiled, are regarded as being more akin to assaults and therefore that maximum penalty is considered fitting.

The noble Lord also asked me about suspended sentences for young offenders. We believe that young offenders should be kept out of custody whenever possible. That is best achieved by their being punished within the community where careful supervision can help them to tackle their of fending behaviour and live more law-abiding lives.

I hope that I have dealt with most of the points raised in this interesting debate and that the House will see from what I have said this evening that in bringing forward the proposals in the White Paper, we are not acting out of concern for the way in which our courts deal with offenders or advocating a sudden change of direction. Rather, we have built on trends over the past 10 years to produce a coherent statutory framework to assist the courts in their sentencing task.