Criminal Justice Bill

HL Deb 16 April 1991 vol 527 cc1345-410

The Minister of State, Home Office (Earl Ferrers)

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.—(Earl Ferrers.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 3 [Procedural requirements for custodial sentences]:

[Amendment No. 18 had been withdrawn from the Marshalled List.]

Earl Ferrersmoved Amendment No. 19:

Page 3, line 34, after ("sentence") insert ("which is passed in a case to which subsection (1) above applies").

The noble Earl said: In moving this amendment I wish to speak also to Amendments Nos. 20, 21, 44 and 75.

Amendments Nos. 19, 20 and 21 are essentially minor drafting amendments to clarify the Bill's provisions concerning the requirement to consider a pre-sentence report before imposing a custodial sentence under Clause 1. Amendments Nos. 19 and 20 simply make clear that the provisions in Clause 3(4) which deal with any failure of the court to obtain a pre-sentence report apply only to cases where, by virtue of Clause 3(1), a pre-sentence report is in fact required. Amendment No. 21 clarifies the purpose of the pre-sentence report. The amendment expands the definition of a pre-sentence report so as to make clear that its purpose is to assist the court in determining the most suitable method of dealing with an offender.

The amendment also ensures that the definition of a pre-sentence report in Clause 3 applies throughout Part I of the Bill generally. There is therefore no need to duplicate the provision in Clause 6 as the Bill's provisions currently do and Amendment No. 44 seeks to delete it. Amendment No. 75 is consequential. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 20:

Page 3, line 35, leave out ("subsection (1) (a) above") and insert ("that subsection").

On Question, amendment agreed to.

Earl Ferrersmoved Amendment No. 21:

Page 3, leave out lines 40 to 46 and insert:

("(5) In this Part "pre-sentence report" means a report in writing which—

1. (a) with a view to assisting the court in determining the most suitable method of dealing with an offender, is made or submitted by a probation officer or by a social worker of a local authority social services department; and
2. (b) contains information as to such matters, presented in such manner, as may be prescribed by rules made by the Secretary of State.").

[Amendment No. 22, as an amendment to Amendment No. 21, not moved.]

On Question, amendment agreed to.

Clause 3, as amended, agreed to.

[Amendments Nos. 23 and 24 not moved.]

Lord Richard moved Amendment No. 25:

After Clause 3, insert the following new clause:

("Criteria for passing custodial sentence on mentally disordered offender

.—(1) Subject to subsection (7) below, this section applies where a person is convicted of an offence and the court is told in good faith or has reason to suspect that the offender is suffering from a mental disorder within the meaning of section 1(2) of the Mental Health Act 1983.

(2) The court shall not pass a custodial sentence on the offender unless it is of the opinion that—

1. (a) the offender's mental condition and his need, if any, for treatment will not be seriously and adversely affected by such a sentence; and
2. (b) that all reasonable and practicable steps have been taken to investigate and secure for the offender such treatment, if any, as may be appropriate for his mental disorder.

(3) Where a court passes a custodial sentence, it shall be its duty—

1. (a) to state in open court that it is of the opinion that both of paragraphs (a) and (b) of subsection (2) above apply and why it is of that opinion; and
2. (b) to explain to the offender in open court and in ordinary language why it is passing a custodial sentence on him.

(4) A magistrate's court shall cause the opinion stated by it under subsection (3) above to be specified in the warrant of commitment and to be entered in the register.

(5) For the purpose of determining whether it is of such an opinion as is mentioned in subsection (2) above, a court shall obtain and consider a medical opinion on the offender's mental condition and the likely effect upon this of a custodial sentence.

(6) In this section "medical opinion" means an oral or written report which—

1. (a) contains information as to such matters as may be prescribed by the Secretary of State; and
2. (b) is made or submitted by a registered medical practitioner approved for the purposes of section 12(2) of the Mental Health Act 1983.

(7) This section does not apply where the sentence for the offence is fixed by law.").

The noble Lord said: I understand that the noble Lord, Lord Harris of Greenwich, cannot be here in the early part of the afternoon and that, as the amendment stands in my name as well as his, it is in order for me to move it.

In moving Amendment No. 25 I shall speak also to Amendments Nos. 26 and 46. The object of the amendments and the purpose of the clause is to aid the Government's clearly stated policy—stated indeed on many occasions—of trying to divert from what everyone agrees would be an inappropriate penal custody those people with a mental disorder who should be provided with treatment and care by the health and social services rather than receiving punishment in prison. Its purpose is to send a clear signal to sentencing courts of the unsuitability of prison for an offender whose predominant needs are for specialised treatment. It will reinforce the advice given in the recent Home Office Circular 66/90 and require of a sentencing court a careful and public consideration of the impact of prison custody on the mental condition of an offender who may be especially vulnerable. Sentencing courts which are contemplating the imposition of a custodial sentence will be obliged to obtain and consider a psychiatric opinion on the defendant's mental condition. What is different is that that psychiatric opinion must concern itself with the likely effect of a custodial sentence on the mental condition of the offender.

The first question that one should ask oneself in considering the amendments is whether there is a problem. As I understand it, based on interviews with probation officers seconded to work in prison establishments, the National Association of Probation Officers estimates that between 400 and 800 prisoners are mentally disordered within the meaning of the Mental Health Act 1983. The Committee will know that the definition of mental disorder within the meaning of that Act is pretty tight.

All those prisoners need transfer to specialist care. In addition, it is estimated that up to 25 per cent. of the entire prison population exhibit disturbed behaviour or are chronically addicted to drugs or alcohol. The overwhelming majority of those prisoners should not be in gaol. They do not benefit from their experience. It does them no good. It does society little good. A study by the West Yorkshire Probation Service in 1990 revealed that 23 per cent. of the divisional caseload were experiencing a mental health problem, but that only one in 10 were receiving even general psychiatric support. Of those 23 per cent., 98 per cent. of the males and 94 per cent. of the females had previous convictions. If one analyses the offences for which they have been convicted, it is interesting to note that 51 per cent. were for theft, 20 per cent. for violence, 11 per cent. for sexual offences, 9 per cent. for driving offences and 4 per cent. for drugs offences. The overwhelming majority of the group were aged between 16 and 40.

I think it is true to say that probation officers throughout the country describe a significant increase in the number of offenders who experience personality disorders and an increase in bizarre behaviour and report no pattern to the behaviour with which probation officers now have to deal. Offending by those clients of the probation service was described as unpredictable so that the traditional methods that the probation services use of confronting offending behaviour were in themselves difficult to use.

From time to time one reads histories of individuals who have been caught up in the system. I have a number of cases. I do not propose to read all of them. However, I should like to refer to one case which indicates the scope of the problem. An 18 year-old youth with four previous convictions for indecent exposure had experienced a sentence of imprisonment in a young offenders' institution. Shortly after the expiry of his licence period he committed a further offence. He was referred to a local psychiatric hospital for assessment. The magistrates' court remanded him in custody for the assessment to take place. The consultant psychiatrist who provided the report stated: He suffers from a personality disorder characterised by poor social skills, incapacity and emotional immaturity … a custodial sentence may protect society from him, but would certainly not be conducive to his maturation and to inculcating normal social behaviour in him. I think a placement such as [a hospital] would be suitable for him".

At the hearing the Crown Prosecution Service decided that the case should be committed to the Crown Court. The same report was submitted to the judge at the Crown Court. The judge sentenced him to 26 months in a young offenders' institution, stating that a secure hospital place was just not available. It is against that sort of background that the amendments are being moved.

The new clause would have application wherever a court had to sentence a defendant for an imprisonable offence and the court was contemplating the passing of a custodial sentence. Clearly it would not apply to those cases where the sentence for the offence is fixed by law, for example murder—at least, that is true until next Thursday.

The structure of the new clause is modelled on Clauses 1 and 2 of the Bill. Its intention is to require a sentencing court actively to investigate the question of whether or not the defendant suffers from a mental disorder within the meaning of the Mental Health Act 1983 and, if so, whether the imposition of a custodial sentence will "seriously and adversely affect" the defendant's mental condition. Under the clause the court would be required to obtain a psychiatric opinion on that question and if, after investigation and consideration of such an opinion, the court decided to pass a custodial sentence, it must state in open court its satisfaction that prison would not be inappropriate bearing in mind the defendant's mental condition. Further, it must then explain to the defendant its reason for imposing a custodial sentence. Those are the very means already adopted by the Bill in Clauses 1 and 2 to influence the sentencing practice of courts.

Subsection (1) describes the circumstances when the clause will come into operation. It means that where the court reasonably suspects or has knowledge that the defendant is mentally disordered it will not be able to sentence that person to custody unless it complies with the requirements of the clause.

Subsection (2) provides the hurdle which the court must overcome if it is lawfully to send into custody a person to whom the clause applies. For the court to do that it must form an opinion on the mental condition of the offender and his need for treatment. Having done so, it has to decide that the imposition of a custodial sentence will not cause those matters to be "seriously and adversely affected" and that all reasonable and practicable steps have been taken to investigate and arrange a non-custodial—treatment —option where this is indeed appropriate.

Currently courts are not obliged to express such an opinion; frequently they send into custody persons whose mental condition will be affected by prison regimes, unrelieved, perhaps I may say, by the inadequate treatment they will receive from the prison medical service; and also courts do not sufficiently investigate non-penal treatment options where these may be of benefit to the defendant and to society at large.

Subsections (5) and (6) simply require the court to obtain and consider a medical opinion to assist it in forming its opinion. When this issue was raised at Report stage in the House of Commons and a new clause almost exactly like this one was tabled, it was rejected by the Government. Two arguments were put by Mr. John Patten on behalf of the Government in another place. On 20th February he said that there were not enough psychiatrists able to do the work involved: Not enough of them have been trained to do this difficult job. The Royal College is tackling that problem now".

The second argument was that imposing this duty upon the courts would mean that defendants would be unnecessarily remanded into custody so that reports could be prepared, which he said would destroy the whole object of the clause.

To the first of those objections, it has to be said that all Section 12 approved doctors are frequently required to carry out rapid assessments, often in police stations, for the purposes of deciding whether a person should be admitted to hospital for treatment under a power in Part II of the Mental Health Act. Further, these same psychiatrists have to visit defendants in prison for the purpose of deciding on court recommendations. It is entirely wrong for the Government to argue that resources are not available for the assessments to be made. What is required is the better organisation of those resources, and that could be achieved by making it a condition of approval by regional health authorities under Section 12 that the doctor assisted with the reports required by this clause.

As to the second objection, there may well be reasons to examine the Bail Act and the power of the magistrates' court to remand into custody a person for a medical opinion. If the clause became law but its implementation was delayed until such time as the resources and necessary arrangements were in place, some of the difficulties envisaged could be avoided. It seems to me that the provision to each remand court of a duty psychiatric rota scheme would prove crucial in preventing unnecessary remands into custody for reports.

I turn now to the second part of the amendments, relating to the Mental Health Act 1983. That Act already provides some mechanisms to aid the policy of diversion from custody of the mentally disordered defendant or offender. Home Office Circular 66/90 emphasises that courts should be willing to use the powers given under that Act more frequently. However, it is generally recognised in relation to certain sections that changes would be of benefit so as to encourage greater use of the power and positively to improve the chances of mentally disordered offenders receiving the health care which they may need. The proposed amendments would achieve those objectives.

Perhaps I may say a word or two about guardianship under Section 37 of the Mental Health Act. That power is very rarely used, often because social services authorities are reluctant to agree to it. We think the inclusion of a power for a court to seek information about guardianship from the authority responsible may encourage its greater use as an appropriate non-custodial outcome.

Finally, paragraph 4 of the new schedule would have the effect of altering the criteria for the exercise by the Home Secretary of his power to arrange the transfer by warrant of a remand prisoner or civil prisoner to a psychiatric hospital for medical treatment. Currently the law allows this only where the prisoner is in urgent need of treatment. The amendment would remove from the criteria the word "urgent". It would mean the power could be employed to arrange for the removal of any prisoner needing treatment which the prison medical service cannot provide.

Although in a recent letter to voluntary organisations (of 13th November 1990) the Home Office claimed that use of the section had increased to 100 times in 1989 and it was not felt to be too restrictive, it is noteworthy that the same letter acknowledged that efforts had been made in the largest prison medical wing—Brixton—to encourage its greater use with absolutely no success at all. In 1989 a consultant psychiatrist was retained to visit Brixton one day per week expressly to seek Section 48 transfers for prisoners who were severely mentally ill. Not one Section 48 transfer was arranged during the six months for which that consultant, Dr. MacKeith, was retained. Although the availability of facilities and the attitudes of doctors may have contributed to that, the limited criteria cannot have assisted.

This is a difficult and sad area. Time and again one reads of instances of people with mental disorders of one form or another being caught up in the criminal justice system and, frankly, treated in ways difficult to justify on any set of civilised criteria. Perhaps I may give just one example. It is that of Mr. Billet, who is 60 years old and has had a long history of severe mental illness. A friend of Mr. Billet wrote to the Home Secretary on 27th September 1990 complaining about the way in which this vulnerable man had been treated since his arrest and remand into prison custody. An extract from the letter reads: Taken to Brixton, [he] was not brought before a magistrate before, he thinks, another week. There he met with a solicitor for the first time. He was pronounced unfit to plead. Because of this his case was referred back to the Crown Court. Meanwhile [he] stayed in Brixton … He went back to court and was remanded again … and was taken to Albany Street Police Station for a few weeks … Here he began to deteriorate—refusing medication".

The correspondent continues: I spoke with police officers who were concerned about him and mystified about what he was doing there for a case of actual bodily harm"—

which was all that he was charged with. Finally on the 21st August [he] was found guilty and was put in the custody of a psychiatric hospital. The court was extremely concerned about the amount of time he had spent on remand. [He] was returned to Brixton Prison. But the order of the Crown Court

—that he should go to a psychiatric hospital— was not carried out. He remained in prison for almost a further month—until … 19th September".

So for a period of six months for somebody in need of treatment—it was accepted that he was in need of treatment and the sort of treatment of which he was in need was known—the system could not cope. These amendments are designed to try to make our system work a little better in this respect. I beg to move.

3.30 p.m.

Lord Mottistone

This amendment is not dissimilar from Amendment No. 24, to which I spoke on the first day of the Committee stage. I shall not detain the Committee by repeating what I said before. However, there are one or two points which emerged from that debate which perhaps the Committee, and in particular the Government, might like to consider further in tackling this amendment.

I am puzzled by the statement of my noble friend the Minister which he made on 26th March. With one breath he said that my Amendment No. 24 would: make it extremely difficult, if not impossible, to pass a custodial sentence",

on a mentally disordered offender. With the next breath he said that the Government's amendment, Amendment No. 17, made it clear that courts: should not pass a custodial sentence if that would adversely affect an offender's mental condition and his treatment".— [Official Report, 26/3/91; col 1055.]

The latter statement of my noble friend is exactly what is said in subsection (2) (a) of Amendment No. 25, the amendment that we are considering, and in subsection (4) (a) of my Amendment No. 24. However, that is not spelled out in government Amendment No. 17, which merely asked the court to consider what might be the likely effects of a custodial sentence on a mentally disordered offender. That is what many do not like about Amendment No. 17 which I said at the time went some way toward meeting our wishes but did not go nearly far enough.

I agree with the noble Lord, Lord Morris of Castle Morris, who said (at col. 1056 of Hansard) that courts are not qualified to consider the likely effects and would need a professional psychiatric opinion to enable them to do so. Hence comes my support for subsections (5) and (6) of Amendment No. 25.

In Amendment No. 46 I particularly support paragraph 2. Short of directing hospitals to care for mentally disordered offenders as suggested in Amendment No. 23, put forward by my noble friend Lady Faithfull and which my noble friend the Minister said would be unworkable, arid I agree, this would at least bring before the court those responsible for the necessary provision in terms of beds or services to account for availability or otherwise. That would prod them into action or show up their inadequacies.

Having said that, I hope that the Minister is able to have a second thought about this amendment which, as the noble Lord, Lord Richard, said, was turned down in another place. If not and if the Minister seeks a compromise, I have in mind to table an amendment on Report to amend subsection (5) of the existing Clause 3 which defines pre-sentence reports to include specifically the offender's mental condition where appropriate and in that case require the report to be made by a registered medical practitioner approved under Section 12(2) of the Mental Health Act. That would meet the point of the noble Lord, Lord Morris of Castle Morris, and ensure that pre-sentence reports give due weight to psychiatric assessment where a mentally disordered offender is involved.

I throw that suggestion at my noble friend although, as he knows, I try to avoid doing so without warning. He might not wish to comment on it at this stage. Depending upon how the rest of the debate goes, I shall consider whether to make a proposal of that sort when we reach Report stage.

I am advised that any doctor approved under Section 12(2) would be competent to 'make such an assessment and that there is no shortage of such psychiatrists. In that connection a forensic psychiatric who has been consulted cannot understand the Government's insistence, which my noble friend the Minister repeated when we debated Amendment No. 17 at an earlier stage, that very few people are available to make psychiatric assessments to the courts. That forensic psychiatrist says that there is no such thing as a qualification in forensic psychiatry; people may go on courses to learn more about it, but that is all. To provide the information the court does not need such a requirement but it needs psychiatrists whose job description includes providing a service to the courts and a way of paying for it through Home Office funds.

Perhaps I could suggest to my noble friend that he needs to look into the advice that he has received to the effect that there are not enough psychiatrists to advise courts. That is a line which might well be pursued further. He might like to think about that matter now.

What is lacking is a mechanism for requiring some of the psychiatrists to perform that function as part of their duties and a Home Office willingness for them to do so. That would certainly be cheaper than the cost of inappropriate prison sentences. Also lacking is a determination on the part of the Department of Health to ensure that hospital beds are available for such mentally disordered people. They may have offended but very often they are the same people who were previously treated in the hospitals and who have committed an offence because of their mental condition. To regard them as lower in the patient's pecking order because they have offended is to misunderstand their problems. Often the offence results from lack of aftercare and, for example, may be theft from hunger.

It is ludicrous to suggest that hospital beds should not be made available through, as my noble friend the Minister said: anxiety that those who suffer from mental disease should not be kept incarcerated in certain buildings".—[Official Report, 26/3/91; col. 1065.)

The vast majority of mental hospital patients come and go as they please while the fate of the mentally disordered offender is too often literal incarceration in prison.

All the arguments for keeping most mentally disordered offenders out of gaol are well known. It is longstanding government policy to enable them to be cared for by the health or social services. Indeed, in another connection I received a letter from my noble friend Lady Hooper at the Department of Health repeating the fact that it is government policy that people who are mentally ill should not be put into prison but should go to hospital. It goes on to say that they are seeking to provide secure accommodation where necessary throughout the land. That has been the policy, as I am advised, for 15 to 20 years. It has been a very sensible policy. However, nobody is doing anything about it.

On the last occasion when we debated Amendment No. 17, the Minister told us that a joint committee —about which we know—of the Department of Health and the Home Office will report in July 1992. That is over a year away. There have been previous reports. The report will be published and consideration given as to what will be done about it. Then we shall find for one reason or another that action has slipped: there is not enough money to provide proper accommodation or for the hospitals; the regional health authorities have to make their own decisions and cannot be told what to do. Such arguments can go on indefinitely. We must have more positive action more quickly to deal with the problem which everyone recognises. The position is not only desperately unfair to the people involved but also involves much more expense than need be for the Government. That is an argument that I should have thought would cut some ice with them.

Lord Hutchinson of Lullington

I briefly support the amendment. One's experience as an advocate in the criminal courts over and again, as the noble Lord, Lord Mottistone, has said, is to come into court with a person who one knows perfectly well is mentally disordered because one has spent time with that person and the court is unable or unwilling to deal with that person other than by sending him to prison. That has gone on for years. The only possible solution to the problem to begin with must be to impose a statutory duty on the court to do various things in those circumstances.

At present, as everyone knows, it is a nuisance to have someone around in public who cannot be professionally certified under whatever section of the Mental Health Act may be invoked. Therefore courts simply, in hurried way, get on with their work and send those people to prison in order to get them out of the way. In prison they are again a nuisance. There is no provision for dealing with them. Again they are simply ignored. They serve their sentences and cause a great deal of disruption and trouble in the prisons.

Perhaps I may plead with the noble Earl that before the Bill leaves this Chamber a perfectly straightforward and simple procedure is laid down in the Bill for that situation. It is no good saying, "Oh, there aren't enough psychiatrists", or, "Oh, there are difficulties about hospitals", and so on. If someone is run over and injured, provision is made; and provision can be made for such people with a little political will. The matter is not as difficult as the authorities have made out over the years.

I urge on the Minister the first step which appears in the amendment: to lay a statutory duty on every court when this matter is brought to its attention to do one, two or three things from which it cannot escape. That is the start of the whole matter. If that duty is laid upon the court, then all the administrative matters and procedures will follow. Provision will be made. I implore the Minister not to let the Bill leave this Chamber without those perfectly straightforward, simple provisions being made.

3.45 p.m.

The Earl of Longford

I strongly support the amendment of my noble friend Lord Mottistone and the ideas propounded by him and by the noble Lord, Lord Hutchinson. However, one or two ideas ought to be in the minds of those in the Chamber before we reach the next stage.

In a sense my main thought is implicit in what the noble Lords, Lord Mottistone and Lord Hutchinson, said. It is all very well to say that one can make this or that provision in an Act of Parliament which states that people ought to be sent to this or that hospital, but the money has to be available. We are talking now of providing money to make that possible. Moving people from one institution to another may be slightly beneficial, but there must be much more financial provision. There is no way of getting away from that. I hope that at the next stage that factor will be taken note of.

My other thought may not be so much in the minds of everyone. The noble Lord, Lord Richard, told us that there might be between 400 and 800 people who could be transferred to other hospitals under the existing Act. One would have to ask in the first place how many want to go. It is assumed in this Chamber in these discussions that anyone who is mentally disturbed who should be transferred to a hospital actually would like to move. In my experience a lot of people do not wish to be moved. Many people would rather he in prison than in Broadmoor. One must state that plainly because I know people who have been in both. They have preferred prison because in Broadmoor one is treated as a child; and people would rather be regarded perhaps as an unpleasant adult in prison. People must bear in mind that thought when we discuss these matters.

If there are many thousands of people who require and would benefit from psychiatric treatment—as I believe there are and as the noble Lord, Lord Richard, said—they will not be sent to hospitals, whichever way one works it out. The long and the short of it is that one has to provide a far better psychiatric service in prisons than is now provided. Most of the people who can be called mentally disordered, if not within the terms of the Act, should be treated in prison; but there is not the service to treat them. Judge Tumim laid the greatest possible stress in the report that he undertook with Lord Justice Woolf of the need to provide psychiatric services in prison equal to those in the mental hospitals. That may not be achieved quickly. But unless we tackle the psychiatric service provided in prison, we are playing with the problem. Nevertheless, I support the amendment.

Baroness Faithfull

I made my views known when I spoke to Amendment No. 23; but perhaps I may make two points. First, will the Minister make representations to the Department of Health not to close any more mental hospitals? Secondly, although I agree with the noble Lord, Lord Hutchinson, that courts must be instructed not to send such patients to prison, it is a question of bricks and mortar. Perhaps I may make a plea to the Department of Health—and I appreciate that the Minister is in some difficulty because he speaks for the Home Office and not for the Department of Health—that what is needed is secure units built for such people and which are attached to mental hospitals. That involves bricks and mortar. Whatever one tells the court, however we may wish to amend the Mental Health Act—and it needs amending—what is needed from the Department of Health is a number of secure units up and down the country.

Baroness Seear

I wish briefly to add one point only because I believe that nearly all the important points have been made. One aspect has not been mentioned. The position of people with mental illness is very important. Nobody has made a point which seems to me of the greatest importance. To ask prison governors and prison staff to deal with people who have mental disorders is to put on the staff a burden which it is quite unreasonable to expect them to bear. That is not within their training. It is extremely difficult for them. They have quite enough on their plates without having to act as amateur psychiatrists which is one of the most dangerous acts one could ask them to take on. They should not be asked to do so. In the interests of making the task more feasible for governors and prison staff, quite apart from what is good for the persons concerned, it is essential that such persons should not be kept in prison.

Lord Renton

The three amendments that we are discussing refer to people who are mentally disordered. They are of two types; the mentally ill and the mentally handicapped. It is not surprising that almost all the discussion so far has referred to the mentally ill. I am keeping an open mind about the effect of the amendments upon such people.

However, Members of the Committee should know that, since the passing of the Mental Health Act 1983 and the code of conduct made under it, the mentally handicapped have been treated with more certainty, effectiveness and compassion than was previously the case. Whether one is thinking about the handling of the mentally handicapped by police officers when making arrests and taking statements or of the way in which they are treated in the courts there is less complaint to be made. I hope that in approaching the merits of the amendments the Committee will think of the mentally ill who vary considerably. However, I wished to give the Committee that assurance in respect of the mentally handicapped.

Baroness Phillips

I had no intention of speaking in the debate until the noble Lord, Lord Hutchinson, spoke. Like certain other Members of the Committee he always makes me rise to my feet. Yesterday I spoke to two young magistrates. The noble Lord said that magistrates hurriedly reach a verdict, although perhaps he did not mean that. I cannot speak for the judges but I know that the lay magistrates act with a sense of service. They are most anxious about the additional directives which are constantly put upon them. In reaching a verdict they must take account of conflicting views in current Government thinking and the sentences that they are expected to impose if they are left alone.

I have the greatest sympathy with people who are mentally disordered. However, every crime has two parties; the other party is the victim. We heard of a case of someone being charged with actual bodily harm. It is not much satisfaction for the person attacked with a baseball bat and hit on the head to know that the attacker suffers from a mental disorder. It does not mean much to the victim although it may mean a great deal to the people who must deal with the accused.

For heavens sake, do not confuse the courts any more. If offenders must be referred to a hospital, provide the hospitals. However, it must be recognised that such people only come before a court if they have committed an offence. My noble friend Lord Richard mentioned the case of a man charged with indecent exposure being sentenced to 26 months in prison. Circumstances must have changed because when I sat in court in central London people charged with indecent exposure were fined £1 and told to go away and not do it again. I was astonished to hear that someone was put in prison for indecent exposure.

I ask Members of the Committee to think of the lay magistrates who do a marvellous job and are unpaid. They are a dedicated group of people and do not want to be further confused by more directives. Today everybody suffers from directives, introduced mainly by a few professors who sit in universities but who have never been up against it. The police, hospital doctors and teachers, for example, are subject to directives. That is fair enough but they should make common sense.

I say to the noble Lord, Lord Hutchinson, that magistrates are most concerned about the Bill because there will be increasing confusion. I speak cunningly not for nor against the amendments. I am in a situation in which I must not offend my noble friend but I shall not obtain a seat in the Government. I appeal to the Committee to think of the people who must carry out the sentences. We must ensure that any provisions we introduce can be followed through.

Lord Donaldson of Kingsbridge

The noble Lord, Lord Hutchinson, brought the noble Baroness to her feet but I must say that sometimes she brings me to mine. We are not making any criticisms of the courts in discussing this amendment, although other parts of the Bill might be used to do so. The amendment is intended to make clear to the courts that if they know that someone is mentally abnormal, that person must not be sent to prison unless the courts are sure that that will do more good than harm. However, if that conclusion is reached, presumably the offender will be sent to a hospital. In nine cases out of 10 the hospital will say, "This chap is not fit to be in an open ward. We do not have an enclosed ward so we cannot accept him".

Mr. R. A. Butler put forward a perfectly sensible solution to that problem which has been achieved in about one fifth of necessary cases. He proposed that in every court area there should be attached to a hospital or elsewhere under local authority control secure accommodation which is a great deal less than a hospital or a prison. That can be done only by spending a great deal of money. I understand that money was granted for such a purpose but that local authorities spent it on other items. However, that might not be true. The solution is clear; the Minister must find the money to try to achieve that.

Lord Elton

I am brought to my feet not by the noble Baroness nor by the noble Lords, Lord Hutchinson and Lord Donaldson, but by the memory of seeing in prison some unfortunate mentally disordered people when I was then the Minister responsible. It was a moving and disturbing experience. It was then and has since been the policy that they should receive treatment appropriate to their condition, preferably in hospital if not in prison. My noble friend's amendment seeks only to implement that policy and I have great sympathy with it. I am glad to see that the noble Baroness, Lady Hooper, has entered the Chamber at this moment. There are two areas of the criminal justice system in which the Department of Health and the Home Office must work in tandem; they are those relating to young offenders and the mentally disordered. Each department has some responsibility for each category of person.

The mentally disordered fall into two classes; they are the mentally ill and the mentally handicapped. Whichever category the offender falls into, the victim must be borne in mind. However, there is no reason why treating the offender in an appropriate way and at an appropriate place should have any effect on the victim other than to reduce the likelihood of a repetition of the offence. The shortage of appropriate hospital accommodation for violent offenders was a matter of great concern in 1984–85. It is a matter of great concern today. I agree with my noble friend Lady Faithfull that we are talking about bricks and mortar and resources. That is always difficult during the process of legislation through a Chamber which does not command those resources and with a Minister whose department is not required to provide those resources.

My reason for intervening is to suggest that, when my noble friend replies to the debate, he may think it appropriate to defer a decision until he has consulted his colleagues who, happily, are present now and the officials of the Department of Health and perhaps give us a substantive reply backed by a programme to which he is able to allude at a later stage. However, at that stage I hope that we shall be able to do something which turns a long-standing policy into an effective action programme.

4 p.m.

Baroness Macleod of Borve

Perhaps I may share with Members of the Committee the experience of what happens in my court. During the 30 years of my involvement with the courts, we have never sent to prison a convicted person who is allegedly mentally ill or subnormal. We remand such a person on bail for three weeks to a psychiatric hospital however local or distant that may be. A bed is found for three weeks during which a psychiatrist makes an assessment and reports back to the same Bench. We then decide whether the convicted man should go to prison or should have treatment. That is how we administer justice where it is needed.

Earl Ferrers

This is an important and sensitive amendment, which concerns us all deeply. The noble Lord, Lord Richard, described this as a difficult and sad area. He is quite right about that. He gave a distressing example of how a great deal of misery can be caused when the system does not work as it should. He said that the system cannot cope and I tend to agree with him. There are areas in which the system does not cope as we all wish it to cope.

My noble friend Lord Elton said that he hoped that I would defer a decision until I had consulted colleagues in the Department of Health. I assure my noble friend that I have done that, because this is an important amendment and we are very anxious to take the right course.

I have considered with great care the amendment of the noble Lord, Lord Richard. My noble friend Lady Faithfull said that she hoped that there would be no more closures of mental hospitals and she asked me to convey that hope to my right honourable friend. I can tell my noble friend that the Department of Health is well aware of her views and indeed the views of all Members of the Committee who are anxious about this matter.

We had a very full debate on the earlier amendments relating to the treatment of mentally disordered offenders in the criminal justice system. Amendment No. 23 in the name of my noble friend Lady Faithful] and Amendment No. 24 in the name of my noble friend Lord Mottistone were discussed before the Recess. The new clause proposed by the noble Lord, Lord Richard, is very similar to the proposal made by my noble friend Lord Mottistone in his Amendment No. 24.

In both cases the court would be prevented from passing a custodial sentence on a mentally disordered offender unless it was of the opinion that the offender's mental condition and its treatment would not be harmed by such a sentence and that there had been an exhaustive investigation of the options for dealing with the offender without sending him to prison. The court would be required also to obtain a medical opinion on the offender's mental condition.

As I said in my reply to the earlier amendments debated before the Easter Recess, I do not believe that there is any disagreement between us as to the objectives. However, we must be careful about imposing legislative requirements which may prove to be counter-productive. For example, we do not wish to see more remands in custody while awaiting psychiatric reports. I am bound to tell Members of the Committee, as my right honourable friend Mr. Patten told another place, that it is our considered view that that would be the effect of Amendment No. 25, especially for those offenders who are of no fixed abode. Because of that, they are less likely to be given bail unless additional or alternative arrangements are set up.

My noble friend Lord Mottistone stated that Mr. Patten had pointed out that there were not enough psychiatrists and my noble friend claims that there are. He suggests that there is no such thing as a specialised qualification for forensic psychiatry. My understanding is that there is a shortage of psychiatrists and also that the Royal College of Psychiatrists has a prescribed course of training which forensic psychiatrists must follow be Fore they are recognised as such and before they are qualified to prepare reports on offenders.

The arrangements put forward in this amendment would carry with them serious resource implications in terms not only of finance but also of health and social services facilities. However much we may wish it, those facilities could not be expanded immediately to cope with such a major increase in demand. The noble Lord, Lord Hutchinson, argued that there is no point in saying that there are insufficient psychiatrists. However, that is a fact of considerable relevance if one places an obligation on courts for which, whether or not one likes it, there are not sufficient resources at the time.

Government Amendment No. 17, which the Committee approved on 26th March, requires the court to consider the information available about the offender's mental condition and to have regard to the likely effect of a custodial sentence on that condition and its treatment before passing a custodial sentence. I believe that that course is preferable to what is prescribed by the amendment of the noble Lord, Lord Richard, because it will give the right steer to the courts as they try, without bringing about an undesirable increase in the number or remands in custody for psychiatric reports, to find the correct balance between the need to secure prosper treatment for offenders who may be mentally disordered and the need to protect the public from offenders who may simply be dangerous. In the meantime, we shall endeavour to identify and to remedy the gaps which we acknowledge may exist in the current health and social service provision.

As regards the new schedule proposed by the noble Lord, Lord Richard, we should all like the procedures for the admission to hospital of mentally disordered offenders to work as quickly and as smoothly as possible. However, I have grave reservations as to whether it is reasonable to reduce by three weeks to seven days the statutory time limits in Sections 37 and 40 of the 1983 Act, although the proposals and the suggested changes to Sections 39 and 48 of the Act have a superficial attraction. It is always dangerous to tinker with existing legislation in this way without extensive work to identify the precise nature of any deficiencies in the Act in question and the views of representatives of the various agencies involved in operating it. We are trying to carry out such work.

My noble friend Lord Mottistone said that we must take action to deal with the problem which we all know exists. I can understand my noble friend's anxieties. Indeed, I can understand the impatience of Members of the Committee who want to deal with the problem which we all know exists. However, it is important to assess the size and complexity of the problem before taking what may prove to be overall blanket decisions which may in themselves not cater for what is a wide variety of difficult and different mental health problems.

The fact is that those difficulties are not yet fully known, although Members of the Committee may say that they should be. The requirements for treatment and security for the mentally handicapped are different from those for the chronically mentally ill. I am glad that my noble friend Lord Renton drew that distinction. There are provisions for both.

Most Members of the Committee consider that in some cases there are gaps in the provision for the mentally ill, whether they are mentally handicapped or chronically ill. I do not dissent from that. What no one knows is exactly where those gaps are or their size or extent. Indeed some people may be in the wrong place at the wrong time; we need to find out whether that is so and where they are before we can address the problem. It is therefore difficult—I venture to say impossible—to provide for the lack of provision without knowing its extent.

We are, accordingly, at present engaged in trying to find that out. We are closely examining recent research findings. The Home Office recently received a report on the sentenced prison population by Professor Gunn, and the Department of Health commissioned a study into where the mental health system and the criminal justice system meet and overlap, or possibly do neither.

The correct approach to overcoming the problems which have been identified should be one of working to develop and improve the practical arrangements and the facilities which are available, rather than to alter the legislation. In that respect I am bound to tell the noble Lord, Lord Richard, that what he seeks to do in the amendment can already be done under existing legislation without altering the practical arrangements.

I have already mentioned that there is a review of services for mentally disordered offenders being conducted jointly by the Department of Health and the Home Office. My noble friend Lord Elton said that we must work in tandem on the matter. I can assure him that we are doing so. The review is concerning itself with this specific area. It is an intensive and important exercise. It will take time to bear fruit. But Ministers have made clear that they expect regular progress reports before it completes its work finally in mid-1992, for the very good reason that whatever action proposed can be taken meanwhile and need not be delayed.

Home Office Circular 66 of 1990 is a very helpful guide to all those in the criminal justice system concerned with the care of mentally disordered offenders. Reactions to and the use of the guidance is being monitored. The growing number of duty psychiatrist schemes, where a psychiatrist is regularly on hand at court to assess offenders, is proving very effective.

In regard to the facilities, the review of the services for mentally disordered offenders will give us a more precise picture of the position nationwide and of the problems and the needs which exist at all levels and in all parts of the various services. In the meantime, the programme of building more secure facilities in the NHS is continuing. An additional £3 million of capital is available during the current financial year for the development of regional secure units and seven NHS regions have further RSU development plans in hand. That is practical work being done now in order to keep mentally disordered offenders out of the prison system. I hope that the Committee will agree that we should rest on the legislative encouragement which is given in the Government amendments discussed earlier, and I assure the Committee that all which has been said today will be drawn to the attention of those who are at present studying the problem and will be taken account of in their work.

I suggest that that is the course to adopt rather than the course proposed by the noble Lord, Lord Richard.

Baroness Faithfull

Before the noble Earl sits down, perhaps I may thank him for the meeting that he arranged in the Home Office together with colleagues from the Department of Health. All those points were clearly made to the Department of Health officials who were present at the time and who undertook to do exactly as he said. I was grateful to have been present and to have heard the representations that were made to the Department of Health.

Lord Richard

Perhaps I may answer the noble Earl who replied with great charm and firmness. However, I am afraid that we received from him this afternoon an almost total turndown of the proposals that we seek. I must also say that the problem has been known for a long time. It must have been clear at the time when mental homes were being closed and people were being thrown out on the streets that that would have a consequential effect upon the criminal justice system. To say now that greater research needs to be carried out to find the scope of the problem is an argument that I find singularly unconvincing.

I am not satisfied with the present situation. I do not propose to ask the Committee to divide on the matter this evening. However, I give the Government warning—I hope it is fair—that we may return to the issue on a subsequent occasion when I may seek the opinion of the Chamber. I beg leave to withdraw the amendment.

Earl Ferrers

Perhaps I could add one point. I do not wish to delay the Committee because the noble Lord was kind enough to say that he will withdraw the amendment. He said that the Government have flatly turned down the proposal. Let me make it perfectly clear that I take a great deal of interest in the proposal. I considered it with a great deal of depth. It is not a question of turning it down; we are all attempting to reach the same objective. It is a question of the best way of doing so.

The only point I put to the noble Lord is that by his amendment he may be imposing duties and responsibilities on courts which at the moment the system cannot take.

4.15 p.m.

Lord Richard

Of course I acquit the noble Lord of not taking an interest in the matter; of course he takes an interest. However, as he is aware, any Minister must take responsibility for Government inertia as a whole. There is no way in which one can evade that. The fact is that not much has been done about the issue. It has been known for a long time and something should be done.

As I am on my feet and before the noble Earl sits down for the fourth time, perhaps I may say that he referred to the report of Professor Gunn. Rumours have circulated regarding what the report will contain. Can the noble Earl say when we shall see it and have an opportunity of judging precisely how many mentally disordered people there are in our prisons? We may then share in the knowledge of the scope of the problem and perhaps contribute something towards the Government's thinking on the matter. It would he nice to learn when we shall see the report.

Earl Ferrers

I did not sit down for the fourth time; it was merely for the second. In Committee proceedings I could sit down 20 times if I so wished. In answer to the noble Lord, Lord Richard, the report will be available in due course.

Amendment, by leave, withdrawn.

[Amendment No. 26 not moved.]

The Chairman of Committees (Lord Aberdare)

If Amendment No. 27 is agreed to, I cannot call Amendment No. 27A.

Clause 4 [Suspended and extended sentences of imprisonment]:

Lord Richard moved Amendment No. 27:

Page 4, line 1, leave out subsection (1) and insert:

("(1) Section 22 of the 1973 Act (suspended sentences of imprisonment) shall cease to have effect.").

The noble Lord said: Amendment No. 27, as drafted, seeks to abolish the suspended sentence. It is a probing amendment designed to elicit an explanation from the Government regarding the provisions of subsection (1) of Clause 4. That subsection restricts the suspended sentence to cases where there are exceptional circumstances. The Government have gone so far in restricting the use of suspended sentences; why have they not taken the logical step of abolishing them altogether?

There have always been two logical difficulties attached to suspended sentences. The first is that it involves the courts in the somewhat tortuous process of initially deciding that they think a prison sentence is essential and immediately afterwards reaching the self-contradictory conclusion that it need not after all be imposed. That leap of logic is questionable enough at present but is even more difficult to reconcile with the new criteria for custodial sentences contained in Clause 1. That restricts such sentences to cases where the offence is so serious that only such a sentence can be justified for the offence or where custody is necessary to protect the public from serious harm.

If it is not strictly necessary to send the offender to prison immediately, it would be more sensible to impose a non-custodial sentence such as community service. If the offender fails to comply with that and returns to court, then the court retains the power to send him to prison for breach of the order.

The second difficulty is that, in contrast to someone who has committed a less serious offence who is given a fine, a probation order or a community service order, an offender given a suspended sentence has no immediate punishment imposed on him. It is difficult to defend the notion that someone who commits a more serious offence should incur no punishment unless he reoffends while less serious offenders are given penalties which require them to forfeit their money, their time or part of their liberty. Clause 4 goes a considerable way to meet these points. First, it restricts the suspended sentence to cases of exceptional circumstances, and, secondly, it requires the court to consider imposing a fine or a compensation order in addition to any suspended sentence. However, even then the offender will be given an immediate penalty of a fine or a compensation order, which is regarded as lower in the sentencing tariff than a community service order or a probation order with additional requirements.

One has to ask the question why, if the Government have accepted the criticisms of the suspended sentence to the extent of imposing these very substantial restrictions on its use, they have decided to retain the suspended sentence at all? One possible argument for retaining it is the fear that its abolition would increase the prison population. However, the results of abolishing suspended sentences for young adults aged between 17 and 20 years, which was a provision of the Criminal Justice Act 1982, do not bear out that fear. Approximately 6,000 suspended sentences a year were imposed on young adults before this change was implemented in May 1983. Following the change most of those sentences were replaced by non-custodial sentences.

At the same time as abolishing a suspended sentence for young adults the 1982 Act also introduced statutory criteria for imposing custodial sentences on young offenders. The result was a fall in the number of custodial sentences from 24,300 in 1983 to 16,700 in 1989. I wait with interest to hear what the noble Lord the Leader of the House has to say, but there does not seem to me to be any logical argument, having gone down the road as far as they have, for the Government to retain the suspended sentence at all. I beg to move.

Lord Ackner

My Lords, perhaps I may first express my regret at not being present on the first day of Committee. I wrote my apologies to the noble Earl, Lord Ferrers, explaining that the Law Lords did not usually sit in the week before Easter although they come back a week before Parliament reassembles. Accordingly, I had accepted an invitation from the chief justice of Poland to visit him. I was in Czechoslovakia when the Committee had its first sitting. I regret not being present for a number of reasons. One reason is that for four years I was required by the then Lord Chief Justice, Lord Widgery, to be in charge of the sentencing seminars for circuit judges. I learnt some of the difficulties and complications which sentencers face. I shall no doubt return to the fact that this Bill will add considerably to their difficulties.

As regards suspended sentences, I support their retention. They play a very useful part. I also support the proposition that they should usually be coupled with another sentence such as a fine. That was certainly one of the messages I sought to give to circuit judges some 15 years ago when I was in charge of those conferences.

I went to one of the assizes in Wales many years ago. A man was up for trial and he pleaded guilty. He was known locally as "Jones the Milk". He was in charge of the distribution of milk over a very large area. He was a pillar of the church (a deacon, I believe) and no doubt leader of the choir and involved in all sorts of other fine activities. He had a 1,000-gallon milk tank into which the Milk Marketing Board poured its milk. He had a run-off system so that he was able to get secretly 200 extra gallons on each delivery. The problem was how on earth one was to sentence him for the three specimen offences with which he was charged. Naturally, he had an excellent record.

I imposed on him a sentence suspended for two years. This was 18 years ago. I fined him £ 750 on each of the three charges and ordered him to pay £ 500 towards the costs of the prosecution. Fortunately, there was a very Welsh assize judge present. I asked him whether he thought I had done the right thing. I remember him saying "God, man! He would rather have been sent to prison any day". That was a very good indication of how the combination of the suspended sentence and the penalty was a very effective one and kept the man out of prison, which would have done him no good at all. The suspended sentence is an excellent idea.

However, I have raised in my Amendment No. 27A the question of the phrase: that the exercise of that power can be justified by the exceptional circumstances".

There is already a considerable body of jurisprudence which is to be found quite conveniently in Archbold. I have it here somewhere. It sets out the very narrow circumstances in which a suspended sentence should be imposed and how it is not to be used as a means of merely reinforcing an accused's statement that he intends to go straight. It is not to be used where community service, probation or some other community penalty can be imposed. It is only to be used if it is a proper case for imprisonment but just before one is to impose it one realises that there is justification for the sentence being suspended.

If the words "exceptional circumstances" are accepted we shall run up against the situation that, generally speaking, there are common features in cases where a sentence is suspended. A good record may be one feature, or the probation officer may give very strong support to the suggestion that a prison sentence will have an appalling effect on the family. The sentence may wreck a career which the accused will never return to. These are not exceptional circumstances, but common features. That is why I have suggested that instead of the words "exceptional circumstances" one puts in the words "in all the" circumstances of the case if one has to say anything at all. I would prefer that nothing at all was said in any way to restrict the very effective use which is being made of this particular option.

Lord Donaldson of Kingsbridge

Before the noble and learned Lord sits down can he give an explanation of the Welsh situation? Why was it obvious that the man would prefer to be sent to prison than fined? I cannot see that the suspended sentence had anything to do with it at all. I thought it was a clear case of preferring to go to prison to paying £ 2,250.

Lord Ackner

The suspended sentence marked in one respect the very serious nature of the fraud which the defendant had perpetrated on his fellow citizens over a long period while putting forward this external indication of being holier than thou. Therefore it was important to show that he had just escaped imprisonment for that offence. But, as the public would— and do— say if you impose a suspended sentence alone, "That is a let-off; he got away with it", the financial penalty was the reinforcement that he had not got away with it. He would have preferred to go to prison because under our parole system he would have been out in six months if I had given him a sentence approaching 18 months. If I had passed a lesser term of imprisonment he would have served an even shorter period. He would also have saved several thousands of pounds out of his taxed income. He regretted that situation very fervently.

4.30 p.m.

Baroness Phillips

I do not want to delay the proceedings— said she, proceeding to do that— but I am puzzled by the noble and learned Lord's words. He said that because the offender was "holier than thou" — that was the phrase used— he got extra punishment. I cannot follow that.

Lord Ackner

With great respect, I can. If a person has emphasised his sanctimonious hypocrisy and then has been calmly going on perpetrating a swindle that he realised would be difficult to find out, it seems to me that he is in one of the more serious categories of dishonesty.

Lord Renton

I should like to support everything that the noble and learned Lord, Lord Ackner, has said in favour of retaining suspended sentences. The one point that I would stress, however, which he did not stress, is that the suspended sentence acts as a deterrent upon the particular offender from committing further crimes. That is very much a point in its favour.

The lower we go down the scale of judicial responsibility it is a strange paradox that the more cases we have to try. I was at the middle range. I did a lot of work as a recorder, deputy chairman of quarter sessions, and relief judge at the Central Criminal Court. I did all of it in the days before the suspended sentence was introduced by the 1973 Act, and indeed before the other remedies introduced by that Act had been suggested by Parliament, and one was in a great difficulty. There were many cases in which one realised that one should avoid sending the person to prison, and if one did not send him to prison there was the opportunity of fining. But often fining was ineffective because the person had no hope of paying without committing further crime. As a result one tended to place heavy obligations upon the probation officers.

If we were to accept the amendment of the noble Lord, Lord Richard, that is what would happen again. After all these years I think I can disclose that I was once reported to a Lord Chancellor of the day for not sending enough people into custody and for placing too big a burden upon the probation officers. But that was because there was no opportunity of suspended sentences. For goodness sake, do not let us get rid of them.

Lord Hutchinson of Lullington

I should like to support the amendment moved by the noble Lord, Lord Richard, and admit to being a bit depressed by what I have heard from the last two speakers on the sentencing policy of keeping the suspended sentence. This Bill recognises, very much to its credit, the failure and unpopularity of the partly suspended sentence and the extended sentence, and both have gone.

Turning to the present clause, it very nearly recognises the same unpopularity and the same failure of the suspended sentence but does not quite go so far as to abolish it. It draws back by introducing strict restrictions on its use (which the noble and learned Lord, Lord Ackner, now wants to get rid of), and by dredging up that old lifebelt for waterlogged and sinking statutory provisions, the "exceptional circumstances".

I entirely agree with the noble and learned Lord that the exceptional circumstances are the essence of all mitigation in the criminal courts. Nearly all mitigation emphasises the exceptional circumstances of a particular case and a particular accused. Almost everything can be exceptions: the person's health; the person's age; the person's employing of a number of other people; sickness in the family; poverty; the fact that he or she made total reparation and repayment, and so on, and even the character to which the noble and learned Lord referred to in "milk the float". Therefore these words really mean nothing at all and are simply a way of retaining the, I would say, now discredited suspended sentence.

When a person is sentenced to a suspended sentence he walks out of court a free person at that moment, possibly with a fine or compensation order as well. It is a less serious penalty at that moment than the community service order or the probation order with conditions. So we have the situation where the person walks out of court a free man and has in fact a less serious penalty than the penalties of community service which are so properly provided for in this Bill.

Of course what happens, with the greatest respect to the noble Baroness, Lady Phillips, is that with 20,000 or so magistrates there cannot be consistency as to how the suspended sentence is used. All the statistics show that the suspended sentence has in fact been used over and over again where community sentences or probation orders could have been properly used instead. The result of the suspended sentence has been substantially to increase the number of people in prison.

Surely the time has come to get rid of that sentence. A conditional discharge, for instance, is far more useful than a suspended sentence. If there are breaches of a community sentence the person is brought back and can be sent to prison. That is exactly the same as a suspended sentence but it has flexibility. The trouble with a suspended sentence is that if the person is brought back he will be sent to prison except in, if I may use the phrase, exceptional circumstances. It is so rigid. Repeatedly people come back in circumstances where patience should be shown by a court. You must have patience with so many offenders. It is no good imposing an inevitable sentence at an early stage. If I may say so in the presence of the Leader of the House, the great thing about this Bill is that that flexibility is now to be found in the community sentences which are set out.

If we keep this sentence, we should be going absolutely against the whole spirit of the, Bill. We are trying and I say this to get the noble Baroness, Lady Phillips, to her feet— to move her away from her culture of sentencing. We are trying— to change the culture of sentencing that has been illustrated by the noble and learned Lord, Lord Ackner. For four years the noble and learned Lord was teaching the old culture of sentencing, with the result that the judiciary, and the young judiciary, continue on and on in the old culture, to use the noble and learned Lord's words today, that he "just escaped from prison".

It is always this question of coming back to prison being the ultimate sentence; the sentence that is in everybody's mouth all the time. All sentences are measured by "going to prison": "you have just escaped prison". This Bill gets rid of that idea. It gets rid of the idea that the only deterrence is prison, and brings in a completely new idea, a new culture, of treating people in the community in which they live, and having them do things that are difficult to do. It will involve a great deal of effort and a great deal of work by the probation service, but nevertheless it will be infinitely more effective. I ask Members of the Committee to support this amendment and also to have the courage to go one step further and get rid of this discredited form of sentence.

Lord Gisborough

I hope that my noble friend will resist the amendment. The task of sentencing some villains in the magistrates' courts is very often extremely difficult. We need more, not fewer, options. Indeed, the greater number of options available, the less difficult the task will be.

There is no similarity between a conditional discharge and a suspended term of imprisonment. I believe it is well known that the conditional discharge is used for comparatively minor crimes, whereas for the suspended sentence one needs to have a pretty rotten sort of offender before one considers its imposition. The two forms of sentence are totally different and they should not be confused.

Lord Monson

Amendment No. 28, which is tabled in my name and deals with partly suspended sentences, has been grouped not only with Amendment No. 27, which I fully expected, but also with Amendment No. 27A, which I did not expect. The revised Marshalled List was not available in the Printed Paper Office last night. Therefore, I only received a copy of it less than an hour ago.

In my view, to deal with three only partly related amendments would confuse the Committee inordinately. Therefore, with the leave of the Committee I shall speak separately to Amendment No. 28 after Amendments Nos. 27 and 27A have been discussed.

Lord Waddington

Different opinions are expressed in the amendments before the Committee. Moreover, a variety of different opinions have been expressed during the course of this interesting debate. We have before us two amendments concerning the fully suspended sentence. The noble Lord, Lord Richard, argued the case for its abolition whereas the noble and learned Lord, Lord Ackner, argued not only for retaining the fully suspended sentence but also for providing the courts with the possibility of using it more widely than is envisaged under the provisions of Clause 4. I listened carefully to both arguments but I remain of the view that the approach reflected in the Bill is the right one.

Amendment No. 27 would abolish the suspended sentence. However, in 1989, the courts imposed nearly 30,000 fully suspended sentences. They clearly found it a useful disposal for many offenders. It enables a court to denounce a serious offence, but to reduce the punishment to take account of an individual offender's circumstances so that he is not sent to prison.

From time to time it is argued that there is a temptation for the courts to give suspended sentences in cases where, if there were no suspended sentences, they would not consider imprisonment appropriate; and that offenders in such cases then break the conditions of the suspended sentence and find themselves in prison inappropriately. However, the suspended sentence can be appropriate where there is no need for supervision and where the services of the probation service are not required. In fact, most of the offenders who receive a suspended sentence complete them successfully.

In 1989 over three-quarters of offenders who were given a fully suspended sentence completed their sentences successfully. If we took away the suspended sentence we would lose an important means of mitigating the penalty for serious offences in cases where such mitigation was justified. One result could be more people behind bars. I am sure that that is not the aim of the noble Lord, Lord Richard.

I now deal with Amendment No. 27A, tabled in the name of the noble and learned Lord, Lord Ackner. As I said, we believe that there continues to be a place for the suspended sentence in the new sentencing framework. We also believe that the use of the word "exceptional" in Clause 4 correctly describes that place. Clause 1 provides that a custodial sentence should be imposed only where the offence is so serious that such a sentence could be justified or where the public needs to be protected. It follows, therefore, that there must be exceptional circumstances to enable a judge to come to the conclusion that whereas prison is justified within the terms of Clause 1, it need not in fact be implemented.

I do not agree with the argument put forward by the noble Lord, Lord Hutchinson of Lullington, that the word "exceptional" is quite meaningless and that any mitigating circumstance can be described as an exceptional circumstance. Indeed, the contrary has been proved often enough; for example, with the use of the word "exceptional" in the provisions concerning drink-driving offences where there was for years— though I am not certain whether it still exists — the provision that there had to be a disqualification unless there were exceptional circumstances. Everyone knew perfectly well— the courts clearly established the fact— that exceptional circumstances in that context certainly did not mean just anything which could be dredged up by the advocate and put forward as a mitigating circumstance. Therefore, the word "exceptional" clearly has a special meaning. I should have thought that an example might be the terminal illness of the offender or of a relative; some severe sickness or perhaps a situation where the offender runs a small business which would close down without him and would therefore mean the loss of jobs for his employees.

In all those circumstances, I suggest that the practice of the courts shows the usefulness of the suspended sentence. Moreover, to make sense of the new structure of the Bill and the restrictions on the use of custody, it is right to mark the fact that the power to use the suspended sentence should be restricted and only used in exceptional circumstances. Therefore, I urge Members of the Committee not to accept the amendment calling for the abolition of the suspended sentence, which is still a useful form of disposal, and to accept that the wording in Clause 4 is correct.

4.45 p.m.

Lord Richard

I listened with a great deal of interest to the noble Lord the Leader of the House explaining his position on this amendment. I trust that I am correct in assuming from what he said— though one cannot make a direct comparison— that the Government's view of "exceptional circumstances" in relation to this clause is at least as restrictive as is their view on the use of the phrase in the drink-driving legislation. The noble Lord will know, as indeed do I and any practitioner in the courts, that it is extraordinarily difficult to get oneself within the straightjacket of "exceptional circumstances" in terms of a drink-driving offence. However, if that is the way in which the Government are approaching the phrase "exceptional circumstances" in this Bill as regards suspended sentences the difference between their position and mine appears to be extremely slim. Assuming that to be the position, I shall beg leave to withdraw the amendment.

Lord Ackner

I view with some concern the response given by the noble Lord, Lord Waddington. My recollection is— though it is off the top of my head and, therefore, probably wrong— that the word "exceptional" in drink-driving cases has to be limited to the circumstances of the offence and must not relate to the individual circumstances of the person charged. Accordingly, the terminally ill person referred to by the noble Lord would not qualify.

However, if that is the noble Lord's definition of the phrase "exceptional circumstances" the noble Lord, Lord Richard, is absolutely right: it would mean that you are cutting down the use which you could make of suspended sentences to a great extent. The result would be an increase in the prison population because, as has been indicated, this option which has been used so extensively would no longer be used to the same extent. That is why I suggest to the Committee that we maintain the present jurisprudence.

I found the appropriate reference in Archbold, which is the criminal practitioner's Bible, at paragraph 5–209. It sets out a number of points which I believe the Government may have overlooked. The paragraph states: Before imposing a suspended sentence of imprisonment, the court must decide that a sentence of imprisonment is appropriate to the case, without regard to the question of suspension".

This is a way of avoiding sending people to prison who would otherwise do so. The paragraph continues: Any statutory requirements which apply to the imposition of imprisonment on the particular offender, in particular, those relating to social inquiry reports",

and all the rest of it, must apply in relation to the suspension. We must go through all the possibilities. Archbold cites the decided cases and says, as I tried to say, that one must go through all the gambits of other community disposals like community service before one ends up with a suspended sentence. I earnestly submit that the Government are reducing a valuable option. That is quite inconsistent with the theme which I strongly support that the fewer persons one can send to prison the better.

Lord Renton

The noble Lord, Lord Richard, wisely sought leave to withdraw his amendment. I believe it has not yet been withdrawn, so we are in order in discussing the next amendment, as the noble and learned Lord has done.

The Deputy Chairman of Committees (Lord Nugent of Guildford)

Will the noble Lord allow me to intervene? Was the noble and learned Lord, Lord Ackner, speaking to the amendment of the noble Lord, Lord Richard, or to his proposal that he should be allowed to withdraw it, or was he speaking to his own amendment?

Lord Ackner

The answer is that I was speaking to my own amendment, using some of the well-known advocacy of the noble Lord, Lord Richard, to support it.

The Deputy Chairman of Committees

I shall put to the Committee the request of the noble Lord, Lord Richard, that Amendment No. 27 be withdrawn.

Amendment, by leave, withdrawn.

Lord Ackner moved Amendment No. 27A:

Page 4, line 9, leave out ("by the exceptional") and insert ("in all the").

The noble and learned Lord said: I beg to move the amendment formally.

Lord Renton

I suggest that the noble and learned Lord, Lord Ackner, has given strong reasons for asking the Government to consider further whether it is wise to keep the word "exceptional" in the clause. I am sure that the last thing the Government wish to do is to weaken the opportunity for imposing suspended sentences. I can imagine the arguments people would get into in court as to whether the circumstances of a particular case were exceptional. We avoid all that difficulty if we accept the noble and learned Lord's suggestion. The court would merely consider all the circumstances and then decide whether there is to be a suspended sentence.

I see heads nodding on both sides of the Committee. I suggest to the Government that they would be wise to undertake to consider the point further.

Lord Waddington

I shall respond at once to that and say that I shall gladly consider the matter further. However, I ought to revert to something that was said earlier by the noble Lord, Lord Richard.

When I was replying to the noble Lord, Lord Hutchinson, I was meeting his point that the use of the word "exceptional" meant nothing. Indeed, despite the use of the word "exceptional", it would be open to any advocate to raise any matter in mitigation. I then referred, as an example, to the drink-driving legislation. I pointed out that there the courts had said that "exceptional" meant something and did not mean nothing. Clearly, it would be for the courts to decide what "exceptional" meant in this provision. Whether the courts would interpret it in precisely the same way as they have interpreted "exceptional" in the drink-driving legislation is another matter entirely.

Lord Hutchinson of Lullington

Does the noble Lord agree that the reason the matter was interpreted in that way by the Court of Appeal was that as a result of those words being used, all the advocates in drink-driving cases came before the courts with exceptional circumstances in relation to their clients? The result was that the Court of Appeal laid down the most extraordinary rule which has been referred to by the noble and learned Lord, Lord Ackner. It was that any exception in reference to the defendant could not be an exceptional circumstance. The only exceptional circumstances would be those which arose from the driving itself. That was how the Court of Appeal avoided the difficulty into which the Government have now fallen.

Lord Richard

I wish to say to the Leader of the House that it would be impossible to use the phrase "exceptional circumstances" in relation to a suspended sentence without it referring to the defendant, since it is the defendant standing before the judge and it is his exceptional circumstances that must be considered.

I am not sure whether the Government say this: there is no doubt that the purpose of the legislation is to confine radically the circumstances in which a suspended sentence may be imposed. However one tries to define "exceptional", it clearly means "not in normal circumstances". There has to be something which takes it beyond the normal circumstances into circumstances which are exceptional, for the court even to be in a position to consider whether or not a suspended sentence should be imposed. That is all we are talking about and it is the intention of the Government as expressed in this legislation.

Lord Waddington

That is entirely right. I believe that I made it abundantly plain that in order to bring these provisions into line with the theme of Clause 1 and the restrictions there on sentencing somebody to a term of imprisonment, it is logical in Clause 4 to put some restrictions on the use of the suspended sentence because of the restrictions which were earlier imposed in the Bill on the imposition of sentences of imprisonment.

However, I am prepared, as I indicated a moment ago, to consider whether the use of "exceptional" is appropriate and is the right way to reflect in Clause 4 the proper restrictions which have been agreed to by the Committee on sentences of imprisonment in Clause 1.

Lord Ackner

In view of the generous agreement by the noble Lord to consider the matter further, I shall withdraw the amendment. I end with my best point that these submissions are strongly supported by the Council of Her Majesty's Circuit Judges, and it is the circuit judges who carry out the bulk of the work in the Crown Courts. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5 p.m.

Lord Monson moved Amendment No. 28:

Page 4, line 17, leave out from ("offenders") to end of line 19.

The noble Lord said: As a complete layman, I am perplexed as to why the Government intend after almost 14 years to deprive the judiciary of a potentially extremely useful weapon in their armoury. I do not use the words "weapon" and "armoury" in any aggressive or fiercely punitive sense. Unfortunately, I happened to be in Lisbon on the day of the Second Reading debate. However, on my return I went through the Official Report with a toothcomb in the hope of finding a convincing explanation for this proposal. Unless I carelessly missed a significant phrase or sentence, only one noncommittal five-word reference was made to the proposal en passant, by the noble Lord, Lord Hutchinson of Lullington, as it happens, not by the Government or the Labour Opposition.

The Notes on Clauses supplied by the Printed Paper Office were not much more helpful; they did no more than claim that the power was little used by the courts. However, even a cursory daily glance at the pages of our national newspapers devoted to court cases seems to suggest otherwise. Even if it were the case that the powers are not much used, the argument would still be a weak one. When my noble and learned friend Lord Wilberforce and I were expressing misgivings not so long ago about the proposal to almost quadruple the maximum sentence for insider trading from two to seven years, the Government's reply was that even if people were to be rarely if ever sentenced to four, five, six or seven years' imprisonment for the offence, the higher maximum was a useful weapon to have in reserve. That would seem to apply with even greater force to the power to impose partly suspended sentences.

This amendment was due to be discussed before the Easter Recess but because of prolonged discussion of some earlier amendments it was postponed until today. The delay has given me the chance to see exactly what was said for and against partly suspended sentences almost 14 years ago. On 3rd May 1977 Mr. Patrick Mayhew (as he then was) in discussing the Criminal Law Bill, asked: Is there not now a strong case for a sentence that is suspended in part rather than wholly suspended as is the case at present?"— [Official Report, Commons, 3/5/77; col. 355.]

The House of Commons as a whole agreed with him because just such a clause was introduced into the Bill and it later became Section 47 of the Criminal Law Act 1977. When the Bill returned to your Lordships' House in July of that year the noble Lord, Lord Harris of Greenwich, speaking from the Government Front Bench (which was a Labour Front Bench in those days), said: The new sentence will, in our judgment, enlarge the scope of the sentencing power of courts. It should provide a salutary check to a number of offenders who will not only see how disagreeable deprivation of liberty can in fact be but will also be given an extra incentive to keep out of trouble".— [Official Report, 21/7/77; col. 469.]

The noble Lord, Lord Wigoder, who was and still is a Liberal, said on that occasion at col. 471 of the Official Report: I welcome this new clause because it is a further weapon in a range, which should be as extensive as possible, in the hands of the Judiciary in passing sentence".

The noble Earl, Lord Mansfield, speaking from the Conservative Front Bench, also welcomed the new clause and said at col. 473 of the Official Report: It provides a new part of a judge's or bench's armoury which I think, especially in the case of a short, sharp sentence, will be very welcome".

I am delighted to see the noble Baroness, Lady Macleod of Borve, in her place today. She also welcomed the new clause. The only speaker who expressed any serious doubts whatsoever was the noble Baroness, Lady Wootton of Abinger, but even her objections were more objections of detail than of principle.

It is true that on studying Section 47 of the 1977 Act — that is the section which introduced the possibility of a partly suspended sentence— a defect becomes evident in subsection (2) which would benefit from rectification. The noble Lord, Lord Wigoder, arrived at exactly that conclusion in his aforesaid speech of 21st July 1977 when he said at col. 472 of the Official Report: The other matter I would raise is this. Is it really necessary, where a part of a sentence is ordered to be served, that it has to be as much as a quarter of the whole term? … There is much to be said for the view that a short sentence, actually served, of perhaps two, three or four weeks, might be more than sufficient to ensure that a first offender in those circumstances is extremely unlikely to offend again".

That is my opinion also for what it is worth.

Only last weekend I read of a case of two young men who had travelled on a 125 InterCity train journeying south. The men had had too many cans of strong lager to drink in the buffet car and opened one of the train's doors when the train was travelling at 100 miles per hour "for a lark". They were sentenced to nine months' imprisonment. I have no wish to criticise this sentence from the point of view of abstract justice. Apart from anything else, I happen to be a friend of the judge in question. However, one wonders from the point of view of the public good whether it would not have been preferable to sentence the men to 12 months' imprisonment with 10 or 11 months suspended, had that been possible. Such a sentence would have delivered a shock which was undeniably sharp but also short.

The sentence would have been short enough for the convicted individuals to escape being tempted into criminal habits or taught the tricks of the trade by the experienced criminals to be found in every prison. With luck it would also have enabled them to keep their jobs in as much as most if not all of the four, five or six weeks' actual imprisonment could come out of their annual holiday entitlement. After all, to throw them on to the dole queue greatly magnifies the danger of their getting on to the criminal treadmill subsequently.

Retention of the powers to impose a partly suspended sentence, ideally amended by what the noble Lord, Lord Wigoder, suggested— that is to say, allowing nine-tenths rather than three-quarters of the sentence to be suspended— would reassure the public. As regards most crimes, and certainly crimes of violence, the public regard sentences that involve no element of imprisonment whatsoever to be tantamount to meting out no kind of punishment at all. I was interested to hear the noble Lord, Lord Richard, effectively say as much when speaking to Amendment No. 27. Such a course of action might meet some of the complaints made by the noble Lord, Lord Gisborough, in his Second Reading speech based on his experiences as a magistrate. It might also help to resolve the dilemma outlined by the noble Lord, Lord Irvine of Lairg, on Second Reading who referred to the problems posed by young car thieves, particularly joyriders.

On a topical note— no doubt my following comment will be controversial— such a course could provide the ideal means of dealing with impulsive, self-centred, but by and large not basically evil young people, such as bomb hoaxers. They certainly deserve a short, sharp shock even for a first offence, but a long period of imprisonment— except for a repeat offence — is generally unnecessary and is possibly counter-productive.

It would not be appropriate to press the amendment this afternoon. However, I should like to hear the opinions of noble Lords and noble and learned Lords who have more experience than myself on this matter. I should also be interested to hear why the powerful arguments that were advanced 14 years ago, not least by the noble friends of the noble Lord, Lord Hutchinson of Lullington, are deemed to be no longer valid. I beg to move.

Lord Ackner

I wish respectfully to support this amendment. In reading through the Official Report of the first day of the Committee stage, I was saddened to note that the noble Lord, Lord Richard, with the enthusiasm for which he is well known, had been frustrated in his search in the Library for the handbook issued by the Judicial Studies Board on sentencing, and in particular on sentencing guidelines. As the Library had removed our copy from the Law Lords' Corridor, I felt particularly saddened as I had advised the noble Lord to go in quest of it there. He can now be assured that a copy is to be found there. I refer to that matter because in document C1 of that bundle there are guidelines issued by the Court of Appeal in the case of Clarke in 1982 on partly suspended sentences. I should have thought those guidelines were unlikely to have been issued unless partly suspended sentences are used and used frequently. I believe that to be the case.

I wish to quote a portion of the judgment given by the Lord Chief Justice on behalf of the court where he stated: If imprisonment is necessary, and if a very short sentence is not enough, and if it is not appropriate to suspend the sentence altogether, then partial suspension should be considered. Great care must be taken to ensure that the power is not used in a way which may serve to increase the length of sentence. It is not possible satisfactorily to forecast the precise way in which the provisions of section 47 might be used. In general the type of case that we have in mind is where the gravity of the offence is such that at least six months' imprisonment is merited, but when there are mitigating circumstances which point towards a measure of leniency not sufficient to warrant total suspension. Examples are always dangerous, but we venture very tentatively to suggest a few: first of all, some serious `one-off' acts of violence which are usually met with immediate terms of imprisonment: some cases of burglary which at present"— — that was 1982— warrant 18 months' or two years' imprisonment, where the offender is suitably qualified in terms of his record: some cases of fraud on public departments or some credit card frauds, where a short immediate sentence would be insufficient; some cases of handling involving medium-range sums of money; some thefts involving breach of trust; some cases of stealing from employers. All these are examples of cases where it may be possible to suspend part of the sentence without harm to the public and with benefit to the prisoner. We would like to echo the words of the Advisory Council on the Penal System in paragraph 282 of their 968 report on the review of maximum penalties: 'We view the partially suspended sentence as a legitimate means of exploiting one of the few reliable pieces of criminological knowledge— that many offenders sent to prison for the first time do not subsequently reoffend. We see it not as a means of administering a "short, sharp shock," nor as a substitute for a wholly suspended sentence, but as especially applicable to serious first offenders or first-time prisoners who are bound to have to serve some time in prison, but who may well be effectively deterred by eventually serving only a small part of even the minimum sentence appropriate to the offence. This, in our view, must be its principal role".

Having reached the age of anecdotage, perhaps I may be allowed to give one reminiscence from the occasion when I was in charge of sentencing seminars. In groups of no more than four we used to attend at various prisons to get the advice of the prison governor. I remember going to Wormwood Scrubs with a group of three others. The governor said to me, "We are not involved in psychiatric work but we do find for some odd reason that group therapy among some of the odder inmates here— the compulsive drug takers, the sexual deviants and the like— is of some value. Perhaps one of you, and I only invite one so that it does not interfere with the day's proceedings, might like to go and listen". Being used to having to volunteer on an alphabetical basis, I agreed to go.

As I marched across with the warder a terrible thought suddenly struck me and I said, "I am going there merely to listen to what is going on?" "Yes", he said, "of course." We arrived at the three cells which had been converted into one. The warder in charge stood up and saluted. He said, "I have told everybody present that we have the advantage of a High Court judge's presence, and we are cancelling our present programme so that each and everyone here may have the opportunity of asking you questions".

One of the questions I was asked was, "What does it feel like for one of you judges sentencing the likes of us to prison?" Thinking fast on my seat, I said, "In many cases you know before I do that you are going to prison, particularly those who have had suspended sentences". Then we passed on to something else. A little while later the person who had asked that question said, "I thought that was a very unfair answer that you gave". I said, "About what?" He said, "About suspended sentences. I had a suspended sentence. I didn't know". I said, "Are you telling me that the judge who imposed the suspended sentence didn't tell you that if you committed an offence of any significance hereafter to prison you would go?" "Oh, yes", he said, "he told me that". I said, "Then what on earth are you complaining about?" "I didn't know what it was like", he said. I said, "If the judge had taken you to the front door and pushed your head through and said, 'Take a look at that', would that have made any difference?" "Oh, yes," he said, "I wouldn't have been there". That is an indication of how the first experience can be so particularly therapeutic.

In the old days the wise old judge on Assize, visiting an Assize town for only about a fortnight, would have those who pleaded guilty brought up for the plea. On the first day he would then say in many cases, not intending to send the person to prison, "Well, this is a very difficult case. I shall want to think about it during the course of this Assize. You'd better be remanded in custody until the last day and then I shall see what I ought to do". On the last day he would make the appropriate speech, saying how nearly the prisoner had gone to prison, how fortunate he was to have the advantage and that he was going to be put on probation. Those 14 days inside waiting for the Assize judge to pronounce what the prisoner thought might well be a prison sentence was very valuable. It is not permitted nowadays, but let us not lose the partially suspended sentence.

5.15 p.m.

Lord Waddington

The Government's reasons for abolishing the partly suspended sentence were clearly set out in the White Paper Crime, Justice and Protecting the Public. They followed the proposal to that effect put forward by my noble friend Lord Carlisle of Bucklow in his most valuable review of the parole system. My noble friend pointed out, and the Government agree with him, that the partly suspended sentence does not fit easily with the new arrangements proposed for parole.

Under my noble friend's proposals, which as the Committee is aware are very closely reflected in Part II of the Bill, all those who receive a custodial sentence will serve at least 50 per cent. of their sentence in custody and the remaining term in the community either under supervision or at risk of being returned to custody if they commit a further imprisonable offence. That places them in a very similar position to people who might currently be given a partly suspended sentence. As such we can see little purpose in keeping this disposal.

It is also fair to say to the Committee that in the seven or eight years during which the courts have had this disposal available to them they have not chosen to make much use of it. In 1987 there were 2,700 partly suspended sentences; and in 1989 there were 2,200, only 5 per cent. of all sentences of imprisonment which were passed by the courts.

In those circumstances, I cannot advise the Committee to accept the amendment.

Lord Elton

The noble and learned Lord, Lord Ackner, has underlined the merits of the very short sentence, in effect of 14 days. Perhaps it is unfair to ask him this question at such short notice; but before my noble friend sits down, can he tell the Committee what is the shortest sentence that can be imposed under the present Bill if partially suspended sentences are removed as proposed?

Lord Waddington

I do not know that there is any restriction on the court. I should imagine that it is possible for the court to impose the shortest sentence which it thinks is feasible in the circumstances. However, one cannot imagine a court in practice imposing a sentence of one day, because by the time the fellow had got to court he would be entitled to be released again. So far as I can remember, there is no restriction in the Bill on the length of the prison sentence.

Lord Gisborough

I support the amendment. As the noble and learned Lord, Lord Ackner, has said, from all accounts the first few days in prison and the regime are a shock. However, after a number of days— perhaps a week or a fortnight— people become accustomed to prison and the shock wears off. In many cases the ideal sentence would be that one week before the villain had had time to get used to imprisonment so that he would not want to go back. After two weeks he begins to get used to it and finds that it is not so bad and he knows that he can stand it. The partially suspended sentence would be helpful.

Lord Renton

I was beginning to think that the arguments for and against the amendment were rather finely balanced until my noble friend the Leader of the House came to the last fact that he presented to the Committee when he said that 5 per cent. of sentences were partly suspended and partly for imprisonment. That 5 per cent. is significant and useful. If we seek to achieve a certain degree of flexibility of powers for the courts, it is important for them to be able to continue to send 5 per cent. of prisoners to prison for a partly suspended sentence. It would be a great pity if my noble friend were to invite the Committee to turn down the proposal. I hope that we can consider what he and the noble and learned Lord have said and perhaps come back to the matter at a later stage. It is not an easy matter and the arguments are finely balanced.

Lord Waddington

I must point out to my noble friend that the small number of people who were subjected to a suspended sentence which was part of a total sentence, part of which was put into effect, related to a time before the new proposals on parole had been implemented. Even under the present set-up, comparatively few people receive partly suspended sentences, but there will be little point in the partly suspended sentence when the new parole regime, which is dealt with in a later part of the Bill, comes into effect.

Lord Monson

I am grateful to the noble Lord the Leader of the House for his reply. I admit that I am at fault in not having had time to read the Carlisle proposals, although I believe that I am right in saying that no Government a re under any obligation to accept such proposals in toto: they can pick and choose.

Like the noble Lord, Lord Renton, I was somewhat staggered by the statistic given by the noble Lord, Lord Waddington. Five per cent. is quite a substantial proportion. I should have thought that that in itself proves the merits of retaining the power.

The noble Lord, Lord Gisborough, put the arguments very cogently. It is the experience of two or three weeks in prison that deters people. As we have had one anecdote this afternoon, perhaps I may briefly relate another. About 13 years ago, just after the measure became law, I spoke to an elderly judge one evening and asked him whether he approved of these powers. He said, "Not a bit of it. Prisons are so soft and cushy nowadays. Young people will go to prison for a few weeks and think, 'My goodness me, there's nothing wrong with a life of crime if this is all I face". As I said, he was a fairly elderly judge and I do not think that in practice many young people today would react in the way that he suggested.

I am most grateful to my noble and learned friend Lord Ackner for his extremely powerful support, even though we may have some minor quibbles over the precise interpretation cif the phrase "short, sharp shock".

I believe that there is much more support for the principles of the amendment than is evident this afternoon and that it is riot solely confined to any one party. I do not therefore propose to press the amendment this afternoon but reserve the right to come back at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clause 5 [Restrictions on imposing community sentences]:

Lord Ackner moved Amendment No. 28A:

Page 4, line 21, leave out subsection (1).

The noble and learned Lord said: The amendment is designed to inquire, when dealing with community sentences, particularly a probation, community service, curfew or supervision order, on what basis one can justify that such an order can be imposed only where the seriousness of the offence warrants it. That seems to be inconsistent with the philosophy regarding probation orders. If one looks at Clause 7 at the bottom of page 5, one sees the express reference to one of the aims being to secure rehabilitation. Clause 10(2), which deals with supervision orders, contains the same reference towards the bottom of page 8 and states that the making of a combination order is desirable in the interests of securing rehabilitation.

If, as has certainly been my experience, rehabilitation has generally been the main motivation for a probation or supervision order, to pui: in its place a provision that it can be imposed only because the seriousness of the offence warrants it seems to be a departure which is inconsistent with the philosophy in Clauses 7 and 10. It may be that you must remove a probation, curfew or supervision order from the community order defined in Clause 5(5), but to impose seriousness as the test seems to frustrate a great part of the reasons for imposing some community sentences. I beg to move.

Lord Renton

What I find rather curious about subsection (1) is that it is there at all bearing in mind that the courts are asked not to make community orders unless the offence is serious enough for the sentence. Does that not apply to every kind of sentence that the court must consider and impose? Are we not teaching our grandmothers to suck eggs when we say that? It may be that I have failed to understand the significance of the point, but it is not the kind of thing that we normally need to say in the course of legislation on common law.

Lord Mishcon

The noble Lord the Leader of the House is most courteous. I wanted to intervene so that the Committee may have an opportunity to see the wider area which the noble and learned Lord, Lord Ackner, has in part covered. As I see it, the new clause to which he refers makes probation a matter of a conviction. That situation has not obtained until now.

Some of the debate is complete. I shall not weary the Committee by repeating my speech when we come to Amendment No. 45. I thought that I would make the point now so that it can be discussed.

Lord Waddington

The simple answer to the point made by my noble friend Lord Renton is that one goes right back to the beginning of the Bill and finds in Clause 1 the concept of the sentence being the one which is appropriate according to the seriousness of the offence and which concentrates the mind of the sentencer on the instant offence and nothing else. That is refined a little subsequently, but it is the origin of the concept.

Lord Renton

With respect, that refers to custodial sentences. I found that understandable. I do not find this quite so necessary or understandable in the case of those non-custodial sentences of the kind listed here as those to which a community order may be applicable.

5.30 p.m.

Lord Waddington

With respect to my noble friend, he has moved on to the second point. The first point is that the clauses quite logically start with the proposition that the sentencer must concentrate initially on the seriousness of the offence. That concept is clearly spelt out in Clause 1.

When one goes down from sentences of imprisonment to community penalties one can well understand the initial surprise with which the concept of "seriousness" may be greeted. But I hope to persuade the Committee that the idea is both a logical, important and practical step towards achieving the Bill's object of making sure that each offender, whatever the crime, receives the appropriate sentence.

It is too easy to see community penalties as a bit of a soft option. In the case of a probation order, that view up to now has been rather reinforced by its not having the status of a sentence of the court. But we are changing all that, and doing so not least because of the way in which probation orders have changed over the years. When the order was first introduced the intention was that it should be used mainly for first or relatively trivial offenders. Probation orders have recently been used increasingly for persistent offenders and those whose offences put them at risk of custody. In 1989, 86 per cent. of people given probation orders had previous convictions, and 38 per cent. had served a custodial sentence. Probation orders are now used for quite serious offences. In 1989, 11 per cent. of those given probation orders were convicted of violence against the person and 20 per cent. of burglary.

The probation order is now a penalty which can make significant demands on relatively serious offenders. For the vast majority of offenders (some 86 per cent. in 1989) a fine or discharge is the appropriate disposal. There is no point in taking up the time and expertise of the probation service looking after offenders who can be dealt with perfectly well by fines.

At the other end of the scale are custodial sentences, which in general, according to Clause 1 of the Bill, are to be imposed only where such a sentence can be justified to mark the seriousness of the offence. Community penalties are for those offences which are not so serious as to require the use of custody but which are more serious than can be adequately dealt with, for instance, by a fine or conditional discharge. The wording of Clause 5(1) reflects in relation to community penalties the principle that the first factor to be considered in determining the penalty to be imposed is the seriousness of the offence. Clause 5 does not set an absolute standard of seriousness which has to be satisfied, nor does it make the seriousness of the offence the only matter to be taken into consideration when awarding a community penalty.

In encouraging the trend for the probation service to work increasingly with more serious offenders, we do not suggest that the service abandons its work with less serious offenders whom it can help; but we feel there needs to be some threshold of seriousness before the resources of the probation service are committed. The court will have to be satisfied that the offence is serious enough to justify this, but it will be up to the courts to make the necessary judgment. The offence would not have to be all that serious to warrant a straightforward probation order without additional requirements. On the other hand, if the court were minded to give a combination order, with the maximum number of community service hours coupled with intensive probation supervision, I think it is right that the offence should be quite a serious one before that is done. Having decided under subsection (1) of Clause 5 that community service is justified, the court will be able to consider under subsection (2) which community sentence will provide a restriction on liberty adequate to punish the offence as well as being the most suitable for the offender: for example, by providing help to tackle the causes of his offending.

I hope that with that explanation the noble and learned Lord will accept that subsection (1) of Clause 5 serves a necessary and useful purpose and fits into the scheme and concepts of the Bill developed right from Clause 1.

Lord Mishcon

With his usual kindness, the noble Lord, Lord Renton, has pointed out to me that I used a wrong word in my brief intervention. I should not have said "conviction" but "sentence". At the moment probation orders are not sentences but they will be if the Bill is passed in its present form. I am most grateful to the noble Lord.

Lord Hutchinson of Lullington

I should like to resist the noble and learned Lord's amendment and to say to him, if I may, that he is clearly stuck in the old sentencing culture. I entirely support what the noble Lord the Leader of the House has said. The whole purpose of the Bill is that community penalties are not soft options. They are in many ways more demanding of offenders than just rotting in prison doing nothing whatsoever. It seems to me that the purpose of the Bill is to try to alter the judiciary's present view that community sentences are soft options and that the only hard option is prison. With the greatest possible respect to the noble and learned Lord moving the amendment, I think it essential that if the Bill is to be successful when it eventually leaves the Chamber, the judiciary, of which he is such a distinguished ornament, should appreciate that those days are now over.

The present philosophy of sentencing is to get away from the total failure of the past philosophy and the complete negativeness and uselessness of sending people to prison over and over again, merely teaching other people how to get through the same circulating door. Here at last is a Bill which is going to stop that eternal practice and make it perfectly proper to impose community sentences, not prison sentences, over and over again. Therefore, I am very much against the amendment. I hope that the noble and learned Lord will, by the time the Bill leaves this place, realise that perhaps the Government are right on this occasion.

Lord Gisborough

Though I do not agree with the proposal, I can see some point in it in relation to community service orders. However, I find it very difficult to see that curfew orders should be subject to subsection (1) of Clause 5.

The noble Lord, Lord Hutchinson, referred to people going to prison aver and over again. However, there are some villains who continue to do the same thing over and over again and are a danger to the public. I dread to think what the public would say if such offenders were just given more and more community service which they failed to carry out and could not go to prison.

Lord Ackner

With the deepest respect to the noble Lord, Lord Hutchinson. once again the needle has got stuck on the record with his constant refrain. He has missed the whole point of the amendment, which I am sure is my fault. The amendment is designed to ensure in particular that probation and supervision orders are not restricted but should be available in the widest possible way and accordingly should not be tied in with the seriousness of the offence.

I refer the noble Lord to a memorandum which I understand was sent to the Home Office by the Council of Her Majesty's Circuit Judges: We consider that it is wrong in principle to associate the making of, in particular, Probation or Supervision Orders with the seriousness of any offence/s committed. Judges"—

perhaps the noble Lord will pay particular attention— have always taken the view that what is important above all in very many cases is the rehabilitation of the offender and/or preventing him/her from further offending. In innumerable cases it has been found that the making of supervision or probation orders for obviously minor offences"—

that is to say, those that are not serious— has introduced a measure of sanity into the chaotic domestic background of a persistent petty offender or a young person frequently cautioned".

How that personifies the carnivorous judge that the noble Lord constantly shows us I totally fail to follow.

This is a request by the judiciary, particularly those dealing with this: "Please do not restrict us in the use that we make of, in particular, probation or supervision orders. We want to rehabilitate people. We do not want to send them to prison. In fact we never have". That is the whole purpose of this amendment.

On Question, amendment negatived.

[Amendment No. 29 not moved.]

Lord Waddingtonmoved Amendment No. 30:

Page 4, line 35, leave out subsection (3).

The noble Lord said: I beg to move.

Lord Elton

I should like to speak briefly to this amendment. I should do so more lucidly had the piece of paper which contained my notes not escaped from my hand in the past 30 seconds. The purpose of the two amendments which I tabled to the subsection which this amendment seeks to remove from the Bill is to elicit a response from the Government. I hope therefore that I may speak briefly on the subject.

The amendments to which I refer are Amendments Nos. 30A and 30B. They fall within the subsection which Amendment No. 30 now before the Committee seeks to remove from the Bill. I do not resist the proposal to remove it. I speak to the two pilot fish which I have put to swim beside this shark before it disappears.

The Deputy Chairman of Committees (Lord Nugent of Guildford)

I should have explained to the Committee that Amendment No. 30 pre-empts the two amendments of the noble Lord, Lord Elton, which is the full justification of his wish to speak.

Lord Elton

I am most grateful. The difficulty which this amendment addresses is that many people who are sentenced by the courts for a second time arrive in court not because they are highly organised and vicious criminals but because they are highly disorganised, inadequate people. The effect of a second sentence is often to put before them requirements in addition to the requirernent of the first sentence which in itself was almost as much as they could cope with. In some statutes the court is required to consider the ability of an offender to discharge the requirements of a sentence before it is made but in other statutes it is not so required.

It has been represented to me that there is a large number of cases in which inadequate people, very often inadequate young people, are given requirements by a court making a second sentence which are too complicated for those people satisfactorily to carry out. One would expect that a court would have in mind the ability of the convicted offender to meet its requirements before it imposed those requirements on him. However, it seems odd that that requirement should be explicitly put on the courts in some legislation and completely omitted in other legislation. As a result there are cases of practitioners in this field being worried by the phenomenon.

The amendments are simply to draw this concern to the attention of the Government. I shall listen to their reply, in the light of which it may be possible to decide whether I ought to put something down to a part of the Bill that will remain in the statute at a later stage.

5.45 p.m.

Lord Waddington

Perhaps I may be allowed to rise to allay the fears which have been expressed by my noble friend. In fact there are several provisions already to ensure that unsuitable community sentences are not given.

Clause 5(2) (a) provides that the particular community order passed on the offender by the court must be the most suitable for him. Clause 6(2) requires a court to consider a pre-sentence report before deciding whether an offender would be suitable for a supervision or probation order with additional requirements, a community service order or a combination order. In addition to all that, Section 14 of the Powers of Criminal Courts Act 1973, as amended by Clause 9, prevents a court making a community service order unless it is satisfied that the offender is a suitable person to perform community service work. Then again, when a court makes a probation order with a requirement to undertake specified activities or to attend a probation centre, or when it makes a community service order or a curfew order, it is required as far as practicable to avoid any conflict with the offender's religious beliefs or with the requirements of any other community order to which he may be subject, or interference with the times at which he works or attends school or any other educational establishment.

So far as curfew orders are concerned this appears in the Bill in Clause 11 and the conditions apply to the other orders by virtue of the Powers of Criminal Courts Act 1973. No community penalty could be held to be suitable for a particular offender if that offender was unable to comply with its requirements. Of course the courts will have to distinguish between a genuine inability to comply with a particular requirement— for example, because the offender was too ill to be able physically to do the demanding work of a community service order— and cases in which it was merely inconvenient for the offender to comply — for example, because the offender could not be out and about when he wanted. But community penalties are a restriction on liberty and that implies a certain amount of inconvenience to the offender.

I hope that when my noble friend reads in Hansard the report of the discussion and goes through all the various references which I mentioned, he will see that indeed it would be quite inappropriate and wrong for the court to impose a community sentence when the offender was not able to comply with the requirements of the sentence.

Lord Elton

I am most grateful to my noble friend for that lengthy and detailed reply. He is quite right. I shall have to study it between now and the next stage. I can assure him that I am not concerned with cases in which either illness or mere convenience are the matters at issue but with those in which the disorganised nature of the young person is concerned. All of us have in our families, if not children, at least nephews or nieces— I say that in order to absolve noble Lords who are sensitive about their immediate family— who with the best will in the world cannot get their act together and fall into great difficulties as a result. It is those people with whom I am concerned.

I am most grateful to my noble friend. I shall see whether his catalogue covers all cases. In the interim I hope that his officials will also consider why there is this general anxiety that inappropriate orders are nevertheless made. At the next stage we can cover that ground.

On Question, amendment agreed to.

[Amendments Nos. 30A and 30B not moved.]

[Amendments Nos. 31 to 32A had been withdrawn from the Marshalled List.]

Lord Richardmoved Amendment No. 33:

Page 4, line 47, leave out paragraph (d).

The noble Lord said: I speak in relation to two matters which have been grouped together. The first is the new curfew order and the second is the enforcement of the curfew order by electronic tagging.

This group of amendments would delete Clause 11 of the Bill which introduces the curfew order as a sentence of the court; and Clause 12 which provides for curfews to be enforced by electronic monitoring of offenders. Perhaps I may say a few words about curfews and then about electronic tagging.

The curfew order in our view is a wholly negative measure which does nothing to change offenders' attitudes towards criminal activity. In contrast, measures such as community service, probation orders and reparation to victims involve working with offenders to try to change their attitudes and to divert their energies in more constructive directions. Curfew orders do none of that. They are indeed exactly what they say: an attempt to impose a curfew on an individual as a sentence of the court.

It is interesting that the courts so far appear to agree with the analysis that it is a negative and not very helpful power. Since 1983 curfew requirements have been available to juvenile offenders as a condition of supervision, but they are hardly ever used. In 1988 fewer than 10 curfew requirements were imposed on juveniles in England and Wales. In contrast, during the 1980s the courts have made extensive and very successful use of constructive measures such as intensive supervised activity schemes for juveniles and probation day centres for offenders aged 17 and over. The power regarding juveniles has existed since 1983. If it has not been used, one is bound to ask why not. The short answer is that the courts are not prepared to impose sentences which they know they cannot enforce. That must have been apparent at some stage to the Government when, having decided that they liked the idea of curfew orders, they had to find some way of enforcing them. The idea of electronic tagging therefore emerged.

The origin of the tag was in Albuquerque in New Mexico in the United States of America. Judge James Love studied the exploits of someone called Spiderman in a comic cartoon. I am told that Spiderman in that issue of the cartoon had been trapped in a net by the evil Mr. King Pin. Mr. King Pin bragged apparently that Spiderman would be his permanent prisoner. He therefore attached an armlet to the beleaguered hero in order to track him over the city on a giant monitor screen. Judge Love was a person of technological bent, with some experience in electronics, who had some contacts in the electronics industry. He briefed some friendly technicians— and so penal policy in Albuquerque, New Mexico, was developed.

By the time tagging arrived in this country via Marconi UK it had been developed in Florida. Marconi UK concluded from their knowledge that: of the current American experience besides the normal professional recommendations from probation, Legal and Psychiatric Reports, the following is the basic criteria for allowing/selecting suitable potential wearers".

First, they should be a minor or first-time offender or have a previously clean record. Secondly, they should have some form of fixed abode. Thirdly, they should be in employment. Fourthly there should be an available telephone. In other words, the blueprint tagee (if that is the right word) is exactly the person who would not need the tagging anyway because of his nature and social background.

In August 1988 the Home Office invested in three electronic tag pilot schemes for remand prisoners. The numbers were small. Three courts were involved in Tyneside, Tower Bridge and Nottingham. The Home Office hoped for 150 tags. In fact only 50 people were monitored, including one man who was counted twice. Of the 49 individuals, some 29 either breached their house arrest conditions or were charged with a further offence. Three of the 29 were allowed to continue in the scheme. Of the remainder, six had their tag removed because the criminal charge was varied, in one case because there was a need for a leg operation. In three cases the charge was withdrawn. Eleven defendants completed without breach. Of those, five were imprisoned, three received community service, two were put on probation and one found not guilty. Nearly 80 per cent. therefore breached, violated or removed the device.

Throughout the six-month period, there was a steady stream of disaster stories. In Tyneside a defendant was about to be tagged but escaped from the court by jumping out of the dock before the anklet could be fitted. Another absconded to the South East of England losing his tag on the way. In London two young men from Scotland were tagged with a condition of residence. Later they appeared on television. The reporter, who ought to have known better, paid them a fee. They hit the pubs, went on the run, and, so far as is known, one of them certainly has not been seen since.

In Nottingham, the very first man to be tagged complained of the number of home visits from Securicor, the scheme operators, to check alleged violations. He claimed that the device did not work in certain parts of his flat. Many landlords were reluctant to accept bailees with tags because of the intrusive nature of the scheme. The authorities therefore found a lodging house that agreed to accept them. Unfortunately the first defendant referred demanded to be returned to court because he said that the lodgings were infested and that Lincoln Prison would be a preferable residence.

Finally, the experience of Mr. T offers a fair summary of the scope of the problem. He was charged with burglary and ABH. He had 17 previous convictions. During the experiment probation staff reported that he had 28 violations— which did not lessen police hostility towards tagging. He absconded last January, was rearrested, de-tagged and remanded in custody. His case officer believes that he was later hailed but failed to turn up for his sentence. A Bench warrant was then issued. In all there were 217 violations, 159 equipment failures including tamper alerts, dead spots, home unit failures, battery failures, and— the Committee will not be surprised to hear— British Telecom line faults.

This scheme has been in use at some stage in the United States of America. In Washtenaw County, Michigan, a study from 1987 to 1988 revealed that offenders were rejected from tag schemes on the grounds of probable failure, if (1) they were convicted of assault; (2) they had a history of flight behaviour (which I assume means running away and does not refer to aviation); (3) they had been involved with drugs; (4) they did not have a permanent residence; or (5) they did not possess a 'phone. As a result only 12 offenders were accepted out of the 223 considered.

With that background and with that history on the Government's experiment, seriously to suggest to the Committee that it is a method that a reputable court would be prepared to attempt to use in order to enforce a curfew order is, I hope, a suggestion that the Committee will not accept.

The total cost of the experiment was £ 700,000 to deal with 50 defendants. If my arithmetic is correct, that is about £ 14,000 per defendant. That is about the annual salary of a probation officer. For the £ 700,000 which the Government spent on producing this farcical scheme we could have employed 50 probation officers for one year doing a far more: useful job.

Electronic monitoring would do little or nothing to divert offenders from crime or prison. Courts in the experimental areas have considered few people to be suitable for electronic monitoring. Most people have broken their bail conditions and more than £ 500,000 has been spent on experiments which have proved a dismal failure. Unlike community service and probation orders— regrettably the Government appear to be serious about the matter so it behoves us to look at it seriously— it is a wholly negative measure which does nothing to change offenders' attitudes towards criminal activity.

If the same resources which are to be used to set up the system of curfew orders backed by electronic monitoring were used to finance more constructive community penalties, many more people could successfully be diverted from custody. These measures are more likely to divert the offenders at whom we are aiming, most of whom have disorganised and chaotic lifestyles, not from crime but towards it. I beg to move.

6 p.m.

Lord Harris of Greenwich

In the light of what was said by the noble Lord, Lord Richard, I must make an admission. When the matter was first put before some members of the all-party penal affairs group, I did not oppose it. At that time my view was that those of us who spend a great deal of time telling i he Government to reduce the number of prisoners on remand should be sufficiently open-minded when such proposals come before us.

On the basis of what I then saw, I became sceptical for one reason. All the evidence put before us by a well-motivated private citizen who talked to us about the matter drew on American experience. Even on the basis of what he put before us as an enthusiast that experience indicated to me that it was unlikely to be reproduced in the British courts. I took that view for one reason; that on the basis of cases in the state of Florida if the measure were seen as an alternative to custody, it was highly unlikely that any of the people who had a tagging order made against them would be remanded in custody in this country. They were alleged to have committed extremely minor offences.

Nevertheless, Mr. Patten was a great enthusiast for the measure. I say that with no criticism because many of the sensible proposals in the Bill appear as a result of his energy as a junior Minister in the Home Office. It is now almost inconceivable that we shall solemnly pass the proposals. The research was carried out by the Home Office whose evaluation report stated: Magistrates and judges did not seem to have much confidence in the applicability of electronic monitoring as an alternative to a remand in custody, and commented on the difficulties of finding suitable candidates for it. They were willing to countenance a trial with a limited time-span, but if monitoring were to be introduced on any national basis then much greater confidence in the system on the part of both these groups would be vital".

On the basis of the evidence that we have from the three magistrates' courts in different parts of the country it is obvious that there is little support for the idea in the magistracy. Furthermore, some of the police officers involved have reacted with a gale of laughter. Notwithstanding the evidence of the experiments, are we to be asked by the Minister to put the measure on the statute book? The noble Lord, Lord Richard, was entirely justified in making his devastating analysis of the situation. I hope that at this late stage the Government will not proceed with this wholly daft idea.

Lord Donaldson of Kingsbridge

I congratulate my noble friend Lord Richard on a splendid knock-about turn. We all enjoyed it very much. I fully support his objection to the use of the idea as proposed. I do not argue with my noble friend Lord Harris; I believe it is wrong to introduce the measure in this context. However, looking at the issue as an ordinary person one might ask whether it would be better to be in prison while one's wife and family are receiving assistance or with the governor's permission, whose confidence after some time one has acquired, go out on a tag at one's request and risk?

That is not an issue for discussion tonight because it does not yet arise; but I believe that eventually the measure will be used in that way. It is an inappropriate weapon for the courts and certainly inappropriate for the police. However, after much refinement it would be an appropriate method for a governor who, like the governor at Grendon 15 years ago, could let out for weekends people who had done the most terrible things saying, "I shall take the responsibility because I trust that chap and he will be back". He never failed. Many more governors would like to do that but they do not have the confidence and courage of Bill Gray. This measure might provide that and should not be dismissed only with laughter, although the suggestion is ridiculous as it appears in the Bill.

Earl Ferrers

We can conclude from the speech of the noble Lord, Lord Richard, that he does not like curfew orders. The effect of his amendment would be to diminish the range of community orders from which a court could choose in imposing a community sentence. In following the sentencing provisions in the Bill, a court will ask itself whether an offence is so serious that it must impose a custodial sentence. If the answer is no, the court will then consider a community sentence. However, if the amendment were accepted, the court would not be able to include a curfew order. It would not be able to combine it with other community orders such as a probation order. Therefore, a court would have fewer options for imposing a suitable sentence for the offender which also accorded with the seriousness of the offence.

The noble Lord, Lord Richard, made an engaging speech described by the noble Lord, Lord Donaldson, as "knock about". So it was and it was jolly good fun to listen to. However, it was a Queen's Counsel at his best. Poor defendants pay Queen's Counsel a great deal of money to make engaging and jovial speeches diminishing a good cause. I was worried because the noble Lord, Lord Richard, reminded me of the politician who noted at the side of his speech, "Weak points! shout!". The noble Lord made a jolly speech over a weak point. The weakness was in saying that all these people have escaped and disappeared or appeared on television. That is a good argument for putting them in prison. The point of not doing so is in order that they can serve their community outside.

The curfew order and electronic tagging will not prevent a person from escaping. However, it will indicate when he has absconded and not fulfilled his obligations. If the noble Lord, Lord Richard, says that that is wrong and people subject to an order will abscond, it is an argument for keeping them in custody. I do not believe that that is in accord with measures for which Members opposite have been pressing; and certainly not with the noble Lord, Lord Hutchinson, whom I had thought would jump at such a proposal.

Curfew orders fill an obvious gap in the range of community sentences available to the courts. I should have thought that they would be welcome by all those who wish to see more offenders being dealt with within the community and not kept in custody. The noble Lord, Lord Richard, said that a curfew order is a negative measure. I see nothing negative about an order which not only keeps the offender out of prison but which also helps him to keep out of trouble. A curfew order rightly restricts his liberty and it is restricted by him being at home. That is the punishment for the offence which he has committed. However, the restriction is for no more than 12 hours per day and could be for as few as two hours per day.

The noble Lord, Lord Richard, said that there are many failures in the monitoring system. Fifty defendants were monitored in three trial areas. A number absconded and were charged with other offences. It is not sensible to compare those results with general violations of bail. Obviously monitoring allows violations to be detected which would otherwise remain undetected.

The noble Lord referred to the total cost of the electronic monitoring trials. He said that £ 700,000 is a lot of money. Of course it is. However, it was a trial scheme. It established three different schemes on an experimental basis and involved special production of the equipment needed. That does not provide a realistic average cost for the use of electronic monitoring on a large scale.

Let us be perfectly clear that a curfew order enables a person to be sentenced not to custody but to a sentence within the community. It enables him to be at home under surveillance at times when the court may deem it suitable. In other words, if the person has been convicted of causing trouble at football matches, he may be told to be at home during the time a match is taking place. If he has been in trouble during pub opening times, he may be told to remain at home at those times. Electronic monitoring merely ensures that he is serving his sentence properly. If he does not, that is an offence.

If one does not accept that argument, one is really saying that people must be allowed to serve their sentence in the community without any check or those people are so bad and so likely to abscond that they cannot be allowed to serve the sentence within the community. With the greatest respect to the noble Lord, Lord Richard, he made a very good fun speech but it does not stand up. Electronic monitoring enables people to serve their sentence within the community with a check.

6.15 p.m.

Lord Harris of Greenwich

The noble Lord, Lord Richard, made a very good fun speech but he was drawing on the Home Office research study of these experiments. These experiments have been an abject failure. The cost does not concern us. If the cost had been double or treble the sum of £ 700,000 but the scheme had worked, we should be very much in favour of it. As I indicated, many of us began this process some years ago by being in favour of the experiment.

One purpose of an experiment is to find out whether or not something works. This does not work and has been a disaster. All one can say in the light of that situation is that it was right to attempt to see whether it would work. It has failed and it seems to me the Government are being stubborn by insisting on proceeding with a project which will, if developed throughout the rest of the country, cost substantial sums of public money.

If the noble Earl has any doubt about that perhaps he will look at the Home Office research study. It states: If electronic monitoring is to be developed then it will surely be on a national basis. This will ensure that the costs of the system will be high. Given the low numbers deemed suitable for monitoring during the trials, and the moves towards individualised disposals for offenders which focus on their specific offences, will there be enough candidates to make electronic monitoring financially cost-effective?".

Those of us who participate in debates on the criminal justice system of this country know that in many respects this is an argument about resources. Ministers constantly tell us— rightly, in my view— that they cannot do everything at the same time and they must make difficult choices. We are merely saying that in our view this is an ill-judged choice if it is decided to proceed. In fact the Government will be deciding to have not enough probation officers in some areas or police officers in other areas to carry out the work. Resources will be poured into this project, which, on the basis of the Government's own experiment, has been a failure. That seems to me a great pity and I believe it to be a profound mistake.

Earl Ferrers

I find the argument of the noble Lord, Lord Harris— to whom I always listen with great interest— slightly difficult to follow. He says that the experiment has failed. Perhaps I may suggest that he should be careful when he says that because he is saying that sentencing in the community has failed. The noble Lord shakes his head but that is the case. The system has worked. It showed that 29 people absconded who were sentenced in this way. That does not mean that the system failed. It showed that those serving such a sentence did not stick to their part of the bargain but technically the system worked. Therefore, I do not believe that the Committee should be under any misapprehension. The system by which it is possible to electronically monitor people works.

The noble Lord says that it will cost a lot of money if the system is developed across the country. Of course it will. However, if he wishes to see prisons emptier then there must be a commensurate cost. The cost of running an electronic tagging system is far less than keeping people in prison. Therefore, I dispute the assertion by the noble Lord, Lord Harris, that the system has failed. It has not failed; it has worked because it has shown when people have not been where they should have been. That is the whole point.

Lord Richard

It seems to me that there have been two failures. The electronics of the system have been shown not to be universally applicable to precisely the sort of people whom one would wish to tag. The second failure is the idea that somehow or other it is possible to have, as an effective sentence of the court, a curfew enforced by that electronic system. That has failed. I am in exactly the same position as I was at the beginning of the debate. I believe it right to test the opinion of the Committee on this issue.

6.18 p.m.

On Question, Whether the said amendment (No. 33) shall be agreed to?

Their Lordships divided: Contents, 79; Not-Contents, 117.

Division No. 1
CONTENTS
Acton, L.	Hollis of Heigham, B.
Addington, L.	Houghton of Sowerby, L.
Airedale, L.	Hughes, L.
Ardwick, L.	Hutchinson of Lullington, L.
Birk, B.	Jay, L.
Blease, L.	Jeger, B.
Bonham-Carter, L.	Jenkins of Putney, L.
Boston of Faversham, L.	Kennet, L.
Bottomley, L.	Kilbracken, L.
Brooks of Tremorfa, L.	Kirkhill, L.
Carmichael of Kelvingrove, L.	Lawrence, L.
Carter, L.	Lloyd of Hampstead, L.
Cledwyn of Penrhos, L.	Lockwood, B.
Clinton-Davis, L.	Longford, E.
Cocks of Hartcliffe, L.	Lovell-Davis, L.
David, B.	Mackie of Benshie, L.
Dean of Beswick, L.	McNair, L.
Donaldson of Kingsbridge, L.	Mason of Barnsley, L.
Dormand of Easington, L.	Mishcon, L.
Falkland, V.	Morris of Castle Morris, L.
Foot, L.	Morris of Kenwood, L.
Gallacher, L. [Teller.]	Murray of Epping Forest, L.
Galpern, L.	Nicol, B.
Gladwyn, L.	Parry, L.
Graham of Edmonton, L. [Teller.]	Peston, L.
Grey, E.	Phillips, B.
Harris of Greenwich, L.	Pitt of Hampstead, L.
Hatch of Lusby, L.	Prys-Davies,
Hayter, L.	Rea, L.
Henderson of Brompton, L.	Richard, L.
	Rochester,L.

Russell of Liverpool, L.	Thomson of Monifieth, L.
Seear, B.	Tordoff, L.
Sefton of Garston, L.	Walston, L.
Serota, B.	Whaddon, L.
Stedman, B.	Williams of Elvel, L.
Stoddart of Swindon, L.	Willis, L.
Strabolgi, L.	Wilson of Langside, L.
Taylor of Blackburn, L.	Winstanley, L.
Taylor of Gryfe, L.	Winterhottom, L.

NOT-CONTENTS
Allenby of Megiddo, V.	Joseph, L.
Annaly, L.	Kimball, L.
Arran, E.	Kinloss, Ly.
Ashbourne, L.	Lauderdale, E.
Astor, V.	Lindsey and Abingdon, E.
Belhaven and Stenton, L.	Long, V.
Belstead, L.	Lucas of Chilworth, L.
Blake, L.	Lyell, L.
Bledisloe, V.	McColl of Dulwich, L.
Blyth, L.	Mackay of Clashfern, L.
Boardman, L.	Malmesbury, E.
Borthwick, L.	Mancroft, L.
Brigstocke, B.	Margadale, L.
Broadbridge, L.	Merrivale, L.
Brookeborough, V.	Mersey, V.
Brougham and Vaux, L.	Milverton, L.
Caithness, E.	Monson, L.
Campbell of Alloway, L.	Mottistone, L.
Campbell of Croy, L.	Mountevans, L.
Carnock, L.	Munster, E.
Cavendish of Furness, L.	Nelson, E.
Clanwilliam, E.	Newall, L.
Colwyn, L.	Norfolk, D.
Constantine of Stanmore, L.	Norrie, L.
Cork and Orrery, E.	Nugent of Guildford, L.
Cox, B.	Onslow, E.
Craigavon, V.	Orkney, E.
Craigmyle, L.	Oxfuird, V.
Craigton, L.	Palmer, L.
Cross, V.	Pender, L.
Davidson, V. [Teller.]	Platt of Writtle, B.
Denham, L. [Teller.]	Prior, L.
Donegall, M.	Rankeillour, L.
Elliot of Harwood, B.	Rees, L.
Elton, L.	Renton, L.
Erroll, E.	Renwick, L.
Faithfull, B.	Rodney, L.
Ferrers, E.	Romney, E.
Fisher, L.	Saltoun of Abernethy, Ly.
Flather, B.	Seccombe, B.
Fraser of Carmyllie, L.	Sharpies, B.
Gardner of Parkes, B.	Shrewsbury, E.
Gisborough, L.	Skelmersdale, L.
Greenway, L.	Slim, V.
Grimston of Westbury, L.	Stodart of Leaston, L.
Hailsham of Saint Marylebone, L.	Strathmore and Kinghorne, E.
Halsbury, E.	Swansea, L.
Hardinge of Penshurst, L.	Swinfen, L.
Harmar-Nicholls, L.	Thomas of Gwydir, L.
Harvington, L.	Tranmire, L.
Hemphill, L.	Tryon, L.
Henley, L.	Ullswater, V.
Hives, L.	Vaux of Harrowden, L.
Holderness, L.	Waddington, L.
Hooper, B.	Wade of Chorlton, L.
Hylton-Foster, B.	Whitelaw, V.
Jenkin of Roding, L.	Wise, L.
Johnston of Rockport, L.	Wynford, L.
	Young, B.

Resolved in the ne gative, and amendment disagreed to accordingly.

6.26 p.m.

Lord Morris of Castle Morris moved Amendment No. 34:

Page 5, line 2, leave out paragraph (f).

The noble Lord said: With the consent and authority of my noble friend Lord Richard I shall move the amendment standing in his name, which is a probing amendment seeking to elicit detail on the Government's policy and practice with regard to attendance centres. We believe strongly in attendance centres. For 40 years and more they have been cheap, local and realistic responses to certain kinds of crime. However, government policy at present seems to be strangely contradictory and paradoxical. In this matter the Home Office appears to be moving, like God, in mysterious ways its wonders to perform.

The Bill rightly places strong emphasis on community sentences. It is part of the underlying philosophy of the Bill that the greater number of offenders should be dealt with within the community. We applaud that; we support and encourage it. However, Clause 5(5) states that community sentences include attendance centre orders. Those orders should thus increase in significance, particularly in relation to young offenders where the emphasis on keeping offenders out of custody has always been much greater. Recently we have heard much of the "university of life". Prisons must not become the comprehensives of crime.

The latest edition of Attendance Centre News, a Home Office publication, glorifies 40 years of the attendance centre. It praises that method of sentencing. At page 15 it draws attention to the significance of such centres under the present Bill and states, the Bill will make a number of changes affecting young offenders. Seventeen year olds will be brought within the juvenile category. Along with 16 year olds they will form a new sub-group to whom special provisions will apply. The maximum length of Attendance Centre Orders for 16 year olds will be brought into line with that for 17 year olds at 36 hours (ie an increase of 12 hours). The Home Office is continuing to consider the implications of these proposals for the management of Attendance Centres".

The natural implication of those words is that an increase in facilities might be required. The only indication of any scaling down in provision is a relatively cursory one— again at page 15— indicating temporary closures at Oxford and Tonbridge. However, in December 1990 reports came to the Justices' Clerks' Society that junior attendance centres were being closed or amalgamated. There seems to have been no consultation or discussion; edicts have simply been issued to places like Basingstoke and Slough that they are to rationalise.

Inquiries established that the Home Office is currently closing junior attendance centres under a policy of rationalisation apparently based on present levels of use. Surely that is premature, given this Bill. The Justices' Clerks' Society wrote on 28th February 1991 to the Home Office complaining and asking for details, numbers and for a full explanation. As yet no reply has been received. Rationalisation in a matter like this is surely a dangerous policy. Attendance centres must be local or the clients will not bother to turn up.

We suggest a better alternative. Junior attendance centres that currently cater only for those below the age of 17 should be opening their doors to 17 year-olds in anticipation of the Bill's provisions. That would extend the facility to a marginally older group but one which is not adequately served in many areas of the country by existing senior attendance centre provision.

There is every reason to believe that courts would make good use of attendance centre orders for 17 year-olds if provision was increased in this way. I do not know what it costs nationally to provide attendance centres. I hope that whoever answers from the government Front Bench will be able to tell me. But common sense dictates that the attendance centre is one of the more economic provisions in the sentencing range. Typically, the costs are limited to the hire fee for a school hall on a Saturday afternoon plus two sessional fees of around £20 each for those employed to run the centre. To retain those we have, and to provide some more is surely not going to impose such a financial strain as will bring this great nation to its knees. If we do not, then Clause 5(5), as it stands, is no more than a pious hope willing the end but not providing the means. I beg to move.

6.30 p.m.

Lord Waddington

I think I understand what the noble Lord is saying; namely, that the Government are not prepared in future to provide enough attendance centres. If that is what the noble Lord is saying, then this amendment seems a most curious way of expressing that view. All this amendment does is to delete an attendance centre order from the list of orders which are community orders. Therefore the only effect of this amendment would be to maintain attendance centre orders but to free the courts from the disciplines which are imposed on them in respect of all other community orders when the courts are thinking of passing an attendance centre order. In effect, it would mean that the courts could still pass an attendance centre order but they would not have to be satisfied that the offence was serious enough to warrant the passing of an attendance centre order. The courts would not have to be satisfied that the passing of an attendance centre order was the most suitable way of dealing with the offender.

I cannot see much rhyme or reason in the amendment which has been tabled. The matter which the noble Lord raised does not seem to have any bearing on the amendment before the Committee. I have taken instructions quickly and if I have not been able to give the noble Lord as much information as he would like, I undertake to write to him and to give him any more information which I can obtain. The network of attendance centres exists to meet the demands of the courts for this provision. It is the case that some centres have been closed, but that is part of our programme of making sure that centres are available where they are needed and of not making them available where they are not needed. As I have said, I undertake to write to the noble Lord and answer any specific question which he raised as regards the provision of attendance centres.

Lord Morris of Castle Morris

The noble Lord the Leader of the House is marvellously diplomatic. As we know, a diplomat is the kind of man who can tell you to go to hell in such a way as to make you positively look forward to the journey. However, I find that his reply says nothing very much about the future of attendance centres save that there will be some measure of rationalisation going on. However, I am grateful to him for his offer to write to me. I shall study what he has to say and, without prejudice to bringing back this matter at a later stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 35:

Page 5, line 2, at end insert: ("( ) A court shall not pass on an offender a community sentence unless it is satisfied that the necessary resources are available.").

The noble Lord said: This is a small amendment on which I have been advised by the Magistrates' Association. As I understand it, the problem with the community sentence of the kind described in this clause is that it must be credible, realistic and effective as an alternative to custody. That must be clear not only to the public and the judiciary but also to the offender. These criteria can only be realised if one can be sure that there are the necessary resources available. As I understand it, as concerns the various magistrates' benches throughout the land that is not always the case. So it would be helpful if we can have a small paragraph of this nature added to the Bill in order to make sure that there is enough pressure brought to bear to have the resources to implement a proper community sentence. I beg to move.

Lord Richard

I ask the noble Lord the Leader of the House a question based on the amendment moved by the noble Lord, Lord Mottistone. I have great sympathy with the thrust of the amendment and the thinking behind it. However, it raises the issue of what happens if a court is satisfied that, the necessary resources are not available. In those circumstances, it may have decided, having gone through all the hoops, that a defendant should be put on probation, but the probation service is not sufficiently well-resourced to take the man. I am not sure what happens afterwards. When the noble Lord the Leader of the House replies, I shall be grateful if he will address himself to that point.

Lord Waddington

Most of us would agree that a number of offenders are sent to prison at the moment who could be more suitably dealt with in the community. Therefore it is a central theme of this Bill that there should be adequate community penalties available and that the courts should be encouraged to use them. It was always recognised that this would mean more resources for the probation service.

I have just refreshed my memory by looking at the last few pages of the White Paper on criminal justice published in February when I was at the Home Office. In the chapter on resources we went to great pains to indicate that if this new regime was going to work, and if we were to be successful in our efforts in keeping more people out of prison, that was going to need more resources for the probation service.

That is still the position. We plan to increase expenditure on the probation service by 12 per cent. in real terms in the next three years. We have made provision for a considerable increase in probation service manpower over this period. There will be nearly 1,100 additional probation officers. That is in anticipation of the increase in the service's workload that will arise from the Bill. We have faced up to the need to put the money where our mouths are, and also to face the fact that extra expenditure will be required in order to make more community service work.

I also point out that for certain kinds of community order the courts must already secure the agreement of those who will operate the order before it is made. For example, a probation order with a requirement to attend a probation centre may only be made if the person in charge of the centre agrees to accept the offender. Clearly such agreement would not be forthcoming if the centre could not cope because of lack of resources. I therefore invite my noble friend to withdraw his amendment on my assurance that we indeed recognise that, in order to make more community penalties available, in order to carry out the theme of the Bill, more resources will be required and have been planned.

Lord Harris of Greenwich

I agree basically with the thrust of the argument of the noble Lord, Lord Waddington. There is one problem that I raised on a previous occasion concerning the probation service which I should like to mention now. I accept at once that there will be a significant expansion of the probation service as a result of the passage of this Bill. As I said a few moments ago, I know that everyone throughout the criminal justice system complains about the shortage of resources, and the probation service is no exception.

Nevertheless, there is one curiosity about the probation service which, so far as I am aware, applies to no other part of the public service—though no doubt having said that I will find that there are precedents. A substantial amount of work is carried out by probation officers in reality on behalf of the Lord Chancellor's Department for divorce court welfare work. The problem is that this type of work has been expanding at a substantial rate, for reasons that we all understand.

I realise that what I am about to say goes way outside this Bill, but it seems to me desirable first that, if the probation service is going to continue to carry out this work, there should be some specific vote from the Lord Chancellor's Department towards the cost of the probation service. It seems quite wrong that a service which is primarily a criminal justice service should in fact be subsidising the Lord Chancellor's Department in this way.

Secondly, I welcome the document produced by the Home Office a few years ago, Priorities in the Probation Service, which indicated to my complete satisfaction that the probation service should be seen primarily as a criminal justice service. All I would say to the Leader of the House is that I hope that at some stage this matter will be looked into. I was, speaking for myself, perfectly satisfied with the reply of the noble Lord on this amendment.

Lord Waddington

I can undertake to the noble Lord to convey to my right honourable friend the Home Secretary what he said.

Lord Mottistone

I thank my noble friend the Leader of the House for the comprehensive answer he gave to the questions posed by my amendment. There will still be difficulties because inevitably it takes time to do the build-up, as indeed my noble friend said it would. It is clear that the problem that it represents is fully realised by my noble friend and his noble friends, and I therefore request leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 5, as amended, agreed to.

Clause 6 [Procedural requirements for community sentences]:

Earl Ferrers moved Amendment No. 36:

Page 5, line 3, leave out subsection (1) and insert: ("(1) In forming any such opinion as is mentioned in subsection (1) or (2) (b) of section 5 above, a court shall take into account all such information about the circumstances of the offence (including any aggravating or mitigating factors) as is available to it. (1A) In forming any such opinion as is mentioned in subsection (2) (a) of that section, a court may take into account any information about the offender which is before it.").

The noble Earl said: I beg to move Amendment No. 36 and to speak to Amendment No. 37. We discussed these amendments on the first day of Committee with Amendment No. 10. They are mainly of a technical and drafting nature and are intended to clarify the procedures in Clause 6(4) determining a community sentence. I beg to move.

Lord Renton

I venture to suggest that subsection (1) in the Bill as it stands and the amendment that replaces it are both unnecessary. Each of them means that the punishment shall fit the crime and fit the offender. We could have said that incidentally, but the courts know this. They do this.

There are times when I feel that we are quite unnecessarily over-zealous in the way that we legislate. We are entitled to an explanation as to why the Government think, or the draftsman thinks, that we have to spell things out quite in this way. So far as the amendment is concerned, it is obvious that these are the matters that the court has to consider.

Earl Ferrers

I quite agree that the court has to consider these matters. But they are put in the Bill in order to make it crystal clear that when the courts have before them offenders they have to take all these matters into consideration. It is considered appropriate to put the matter in the Bill in the way suggested.

Lord Gisborough

Is it not extremely dangerous to pass this sort of legislation? If we spell out everything in detail and if subsequently we find something that is not spelt out, we assume that it is not meant.

Earl Ferrers

Of course there is always a danger of putting too much in a Bill and of putting in too little.

Lord Renton

It may be that my noble friend has some further information that he now wishes to present to the Committee?

Earl Ferrers

My noble friend is enormously encouraging in giving me the opportunity to rise to my feet again. I do not wish to delay the Committee in any way. The only information I would have imparted to my noble friend is that which I gave at the beginning. The amendment is part of the general scheme set out in the Bill to guide the courts on practice to be taken into consideration in such a matter. Therefore, what I said in the first place still continues.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 37:

Page 5, line 12, leave out ("for the purpose or) and insert ("before").

On Question, amendment agreed to.

[Amendments Nos. 38, 39, and 40 not moved.]

[Amendment No. 41 had been withdrawn from the Marshalled List.]

6.45 p.m.

The Deputy Chairman of Committees (Lord Strabolgi)

Before calling Amendment No. 42, I have to inform the Committee that if No. 42 is agreed to I cannot call Amendments Nos. 42A or 43.

Earl Ferrers moved Amendment No. 42:

Page 5, line 19, leave out subsections (3) and (4).

The noble Earl said: This amendment is also of a technical nature and is to improve the drafting of the Bill. I say with deference to my noble friend Lord Renton that the amendment was discussed on the first day of Committee with Amendment No. 10, and I hope that this, like all the other amendments, will attract my noble friend's approval. I beg to move.

Lord Renton

May I say what pleasure it gives me to congratulate my noble friend on leaving out any part of this Bill.

Earl Ferrers

My noble friend's generosity is always boundless, and I greatly appreciate it.

On Question, amendment agreed to.

[Amendments Nos. 42A and 43 not moved.]

Earl Ferrers moved Amendment No. 44:

Page 5, line 34, leave out subsection (6).

The noble Earl said: I shall be even more in favour with my noble friend because this also is a technical amendment to improve the drafting of the Bill and also leaves out a little bit of the Bill. I beg to move.

On Question, amendment agreed to.

[Amendment No. 44A not moved.]

Clause 6, as amended, agreed to.

Clause 7 [Probation orders]:

Lord Mishcon moved Amendment No. 45:

Page 6, line 4, after ("may") insert ("instead of sentencing him").

The noble Lord said: There is one principle that the Committee may wish to accept immediately. If something is working satisfactorily, do not alter it. Let us at least listen carefully to the people who are carrying out the job if we are asking them to alter the nature of the work that they are doing. That is the background behind the amendment, which I invite Members of the Committee to accept. lt would ensure that a probation order does not, as this Bill says it should, amount to a sentence. I ventured to intervene earlier in order to bring the Committee's attention to the position under the Bill. I do so again now in moving my amendment, but in rather more detail.

As I indicated, the amendment seeks to maintain the present position. Perhaps I may re mind Members of the Committee of that. It exists under Section 2(1) of the Powers of Criminal Courts Act 1973 which provides that a probation order may be imposed where the court, is of opinion that having regard to the circumstances, including the nature of the offence and the character of the offender, it is expedient to do so, the court may, instead of sentencing him, make a probation order".

Moreover, Section 13 of that Act provides that, a conviction of an offence for which an order is made … shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceeding which may be taken against the offender under the preceding provision, of this Act".

We carried that provision forward in that spirit in our legislation when we passed the Rehabilitation of Offenders Act in 1974. That Act declares that a probationer's "conviction" becomes "spent" as soon as the order is successfully completed, or a year after the person's court appearance, whichever is the longer. It provides the rehabilitated offender with limited protection against discrimination on the grounds of past offending history. As I asked at the beginning of my remarks, if something is working well and the principle is right, why alter it? However, if you intend to make alterations you should listen to the people who have to carry out the job and see what they have to say.

The National Association of Probation Officers is very definite in its view of this present position which was prophesied, if I may put it that way, in the White Paper. That prophecy did not have attached to it any reasoning whatever which I believe would be acceptable to the Committee. The association literally says that it cannot understand how probation (unless we are to abandon what is meant by that word) can possibly be changed into a sentence. 'That is exactly what it says. The association further states that the concepts involved are fundamentally incompatible; that a sentence is a determination of punishment pronounced by a court, and that punishment is, to cause to suffer for an offence".

On the other hand probation—that is how the association has always understood it and is the job it wants to carry out—involves putting aside, or deferring, any notion of sentencing and entails a period of proving and testing.

Probation officers are trained as social workers; they are not trained as people who are meant to carry out a punitive function. In this Bill we are ruining a whole history which goes back over the years, especially in regard to the treatment of young people. Despite those years of history of the probation service and the legislation which covers it, we are now making the probation order into a sentence and we are giving the court power to put conditions in the order which are of a punitive nature.

In dealing with another amendment in regard to probation the noble Lord the Leader of the House was good enough to give the Committee an analysis of those people who had been made the subject of a probation order. That analysis seemed to show that very serious offences were being committed in respect of which probation orders were being made. I inferred from that, as no doubt did other Members of the Committee, that we now have a different situation in regard to people who have committed serious offences and who have a pretty grievous criminal record being granted a probation order. However, that is not a reason for altering the whole principle of the probation order and the job of the probation service. It may be an indication that probation orders are being wrongly used. Perhaps we should look at an alternative within community service, which is a fairly novel position that the criminal and penal codes have taken up in our legislation.

It may be that in future probation orders will not be meted out in the circumstances outlined by the noble Lord the Leader of the House. However, for heaven's sake let us have the principle of a probation order. It has stood up well in seeking to ensure that young people especially are given the opportunity of proving their worth, despite the fact that there has been a conviction for what may be a relatively minor offence or indeed a first offence, when the court wants to try the possibility of rehabilitation.

Let us listen to the probation service—it deserves well of this Chamber, and indeed of the country—before we do something as serious as not inserting in this part of the Bill the words which I am endeavouring to put in the legislation by way of this amendment. I beg to move.

Lord Renton

The noble Lord, Lord Mishcon, has raised an extremely important matter of principle. I earnestly hope that the Government will either agree to accept the amendment or say that, as a matter of principle, they agree that something to the same effect should be done.

Ever since the probation service was introduced early in this century fundamental to it has been the fact that placing someone on probation is not a sentence. Indeed, when placing someone on probation the courts have always told the offender, "You are not being sentenced; you are being given a chance. But for the period of the probation order"—which varies generally between nine months and three years—"you will have to accept the guidance of the probation officer. You won't have the stigma of a sentence recorded against you as long as you accept that guidance. However if you are in breach of the probation by committing another offence, you will have to be punished not only for that offence but for the breach of the probation order. You will then be sentenced for the offence on which you have now been found guilty".

It is an important matter. It would be unfortunate if, in the desire to recast our system of treatment of offenders, the Government were incautiously to group probation with other matters mentioned in Clause 5(5), just for the sake of grouping them together as alternatives to custody. I hope that my noble friend will give a sympathetic answer.

7 p.m.

Lord Carr of Hadley

I support the amendment. I have to confess to the Committee that I came in at this moment by chance, I had not intended to participate in the debates today and in a way I need to ask forgiveness for doing so. As a former Home Secretary, I have a self-made rule that I would not intervene on home affairs matters unless I had given a great deal of time and thought to them.

However, I have also recently been elected president of the Rainer Foundation which gave birth to the probation service. Thus I have an additional cause, as well as being a former Home Secretary, to feel sensitive about the issue. It is an important point because it would be a fundamental change. I beg my noble friend to hesitate to give a final decision this evening, the matter deserves much more careful thought.

Lord Donaldson of Kingsbridge

Will the Leader of the House answer this question before we come to a decision? Am I right in thinking that the community service order is a sentence and that it is administered by the probation service? If that is the case, I cannot see the difficulty. Is there not some confusion here?

Lord Waddington

I listened with great attention to all that was said by the noble Lord, Lord Mishcon. At the end of his speech, he invited us to listen to the probation service. Earlier, he urged us to listen to those who would have to apply these orders when they became sentences of the court.

I am prepared to take that advice because I would not wish Members of the Committee to imagine that all those who have to apply the orders disagree with the policy adopted by the Government. That is far from being the case. I have to tell the Committee that NAPO, the National Association of Probation Officers, is about the only organisation concerned in these matters that opposes what the Government propose in the Bill. The Association of Chief Officers of Probation agrees with the policy adopted by the Government. The Magistrates' Association has expressed support for what the Government propose to do. The National Association of Senior Probation Officers approves of the policy adopted by the Government and NACRO approves of the policy adopted by the Government.

It is rash to give the impression that there is a great tide of opinion against the Government and that all those who fight the cause of probation somehow disagree with probation becoming a sentence of the court. I should have thought that having read out all those bodies, it is fairly obvious that the argument being advanced by the noble Lord, Lord Mishcon, is a minority view among those who are directly concerned with these matters.

Lord Mishcon

I do not know whether I heard the noble Lord correctly. I believe that he said that NAPO was in favour of this.

Lord Waddington

No, I was telling the noble Lord that NAPO is unique in being the only body which agrees with him in disapproving of what the Government propose in the Bill.

Lord Mishcon

I thought that the noble Lord subsequently said that NAPO was among the associations which he read out. I may have misheard him.

Lord Waddington

If I made an error, I am sorry; but I intended to single out NAPO as being the one body which disapproves of what the Government are doing. Far from this being a retrograde step, making probation a sentence of the court is, in my view, right and fits in well with the whole scheme of the Bill. It will encourage greater use of probation and therefore should point towards fewer rather than more people finishing up in prison. It fits in with the way in which probation has become used over recent years.

There is not the slightest doubt that the emphasis has changed. More onerous burdens are placed on offenders who are made the subject of probation orders. Conditions are attached to probation orders; conditions are attached which make people attend at a particular place for a number of hours and so forth. When one goes over the facts which I related when dealing with an earlier amendment and when one looks at the way in which probation orders are now used in cases of far more serious offenders than used to be the case, there is a difficulty. When one looks at the number of probation orders now made in quite serious offences it is difficult to reach a conclusion other than that the world has changed and that the view being expressed by the noble Lord, Lord Mishcon—1 say this with the greatest respect—is rather old hat. The trend is strongly in the direction which has been adopted by the Government, with the agreement of all the illustrious bodies to which I have referred.

I think that the noble Lord, Lord Donaldson, was mistaken. The amendment deals with only the narrow question as to whether a probation order should become a sentence of the court. That is the only matter that I address directly now. The probation order complements the other community orders available under the Bill. Its status as a sentence of the court more closely reflects its current usage. It is increasingly used for more serious offending; for example, in 1989, 86 per cent. of those given a probation order had previous convictions, and 38 per cent. had served a custodial sentence. The use of probation orders for more serious offending is in part because the probation order has been strengthened by the power to attach a requirement to attend a day centre. This means that in practice a probation order can be and often is a penalty which makes significant demands on the offender.

It seems absurd to suggest that a probation order is not a penalty on the offender when attached to it is a condition which requires a person to go to a great deal of trouble, give up a great deal of leisure and apply himself to doing something useful for many hours at an attendance centre or elsewhere. I understand the worry that has been expressed that the new status of the probation order might discourage its use for less serious offenders—and I know that this is my noble friend's anxiety—but I do not honestly think that it needs to be the case.

Baroness Seear

I am sorry to interrupt the noble Lord, but I am trying to get my mind clear on this. I cannot see that any change in kind has happened in what probation officers are being asked to do which requires this alteration. They have always had to put requirements on youngsters—the people who are put on probation.

People on probation have had to fulfil attendance requirements. Requirements have been laid on them which probation officers have had to supervise and insist upon. The fact that the requirements are now heavier does not alter this situation in principle. Surely the principle remains exactly the same. I cannot see that there is any necessity to change this provision just because more serious and heavier requirements will be involved. There is no difference in the position. It has always been like this. Why is it necessary to change it, or have I misunderstood the position?

Lord Waddington

There will be no difference in the position. I have sought to point out that the reality of the matter is that probation orders have changed and the kind of cases for which they are used have changed. I have sought to point out that it is very much a theme of this Bill that judges should look most earnestly at ways of keeping people out of prison and at the whole range of community penalties and ask themselves whether by passing a community penalty they can thereby meet the justice of the case and keep a person out of prison. It is extremely important that we should emphasise to them that a probation order need not be a let-off. It is a sentence of the court and it means something. It might carry with it serious conditions which make serious demands on the person concerned. I do not wish to repeat myself but I feel strongly that it would be entirely inconsistent with the main theme of this Bill to take the rather old-fashioned view that a probation order cannot be a sentence of the court when quite plainly now and for some time in the past probation orders have been so used. They have been used to great advantage in the sense that many people have been kept out of prison who otherwise would have finished up there.

Lord Renton

With great respect to my noble friend, I must say that I am not convinced by his strongly expressed arguments. Will he please answer the fundamental point that if probation is to become a sentence, what happens when there is a breach of probation? Is there to be no further sentence, or is there to be a procedure which the Bill has not described for dealing with the offender further? What exactly is to happen? Has that been thought through?

Lord Waddington

My understanding is that at present if someone on probation commits another offence and appears before a court, he is dealt with for the further offence. The judge, however, will also deal with that person for the breach of probation and will give that person a day's imprisonment for that offence. The only difference which will now pertain is that when someone appears before the court for another offence, having breached the probation order, he will be punished for the further offence. I do not think in practice there will be a ha'p'orth of difference in the position.

Lord Renton

It is important to follow this matter. Has my noble friend not realised that by having probation as itself not a sentence, the offender is told, "You are not being sentenced now, but if and when you are in breach of the probation order, then you will be sentenced for this offence"?

7.15 p.m.

Lord Waddington

I appreciate that that will no longer be the case. No doubt in putting someone on probation a judge will make it absolutely plain to that person that the court has taken the view that the justice of the case can be met by a probation order, that the accused has been lucky that the court has taken that view and that if he breaks the conditions of the probation order and reappears before the court for another offence, he cannot expect to be dealt with in the same way again.

Lord Gisborough

Is there not a parallel with the conditional discharge? Exactly the same situation pertains to that provision.

Lord Waddington

I am grateful to my noble friend for coming to my rescue. That provides a perfect answer to the point that has been made.

Lord Hutchinson of Lullington

I wish to make one further point for clarification. The noble Lord, Lord Mishcon, referred to the rehabilitation situation. Is not the position exactly the same now as it always has been as regards someone who has been put on probation? If one commits an offence one is convicted, whether one is put on probation or fined or whatever. The sentence of the court makes no difference at all. The point is that one is convicted and that conviction stands. If one is put on probation, from the rehabilitation point of view when one has served the period and completed the order, it is washed out. According to my understanding of the matter, precisely the same position remains today. I ask for guidance on that matter because it seems to me to be a complete answer to what the noble Lord, Lord Mishcon, was saying. If I am wrong, perhaps my view will change.

Lord Waddington

That is entirely correct, but I am not sure that I am qualified to give much guidance as I have now discovered that I have made a serious error. I am told that in Schedule 2 of the Bill there is provision for sanctions for breach of a probation order. I had forgotten that.

Lord Mishcon

I have been accused of uttering some old hat. If that is an accusation I ask for the probation of the Committee immediately because it is an old hat that I am not ashamed of wearing. The situation is this. For years and years we have had a system under which the court in certain circumstances can declare after conviction that it wants to place the convicted person on probation. The court asks for consent to do that. The court may inform the offender that probation is not a sentence and the offender can go away knowing that if he behaves sensibly with a kindly probation officer to look after him and obeys any conditions to which the order is subject, he can tell the world that he has not received a sentence. He can say that to his employer and to his parents. If he happens to be married, he can say that to his wife.

If the benefits of that position constitute old hat, am prepared to wear it with pride. As regards the conditions, this very Chamber, sitting in a judicial capacity, has outlined the principles of a probation order in the case of Cullen v. Rogers in a way which is completely contrary to the way in which the noble Lord the Leader of the House has presented this matter. The judgment of this Chamber confirmed that conditions imposed in a probation order cannot themselves be a sentence because, since the making of a probation order is a course taken by the court to avoid passing a sentence, a requirement imposed under Section 2(3) must not introduce such a custodial or other element as will amount in substance to the imposition of a sentence. This Chamber pronounced that judgment sitting in a judicial capacity. The judgment laid down a principle of the value of the probation order in our criminal system.

As I thought he would, the noble Lord repeated what he said earlier with regard to what may be the deficiency in these days of a probation order. He did not say that the probation order system was a bad one. He said that the courts were making probation orders in cases of a serious nature and where previous convictions had attached to the accused. Yet a probation order was still made. That is not a criticism of the probation order system as we have known it.

Lord Renton

Neither is it anything new. For years the courts have in exceptional cases decided that even previous offenders should be given a special chance, after a good warning, and be placed on probation.

Lord Mishcon

The noble Lord, Lord Renton, is absolutely right. Where the court considers that there are special grounds, having regard to the offence which has been committed and the reasons for it which have been advanced in mitigation, it is usual to say that in that case a probation order shall be made.

The only logical sequence from what the noble Lord the Leader of the House said may very well be that in this legislation we ought to be thinking of some half-way house between a probation order and a sentence of imprisonment. That may very well be a sensible way for a penal reformer of progressive views to consider this matter. However, it cannot be right to abolish what was so sensible in the past and say, "I don't care what your age is, provided a probation order is suitable the court will now have to make a probation order"; instead of saying, as it has over the years, that that is not a sentence, the court must now say that it is, whatever the circumstances, even in regard to a first offence.

That would tie the hands of the court, quite apart from any other point that I have made, in that the court might think that an absolute or conditional discharge is not suitable because there ought to be a period of probation and a probation officer should look after the accused but the court does not want to impose a sentence. Therefore, in a case in which a probation order would be suitable the court will consider that it has no alternative, although it may wish that there was an alternative. It will have either to adopt the unsuitable option of reducing the punishment by making it an absolute or conditional discharge or considering a short term of imprisonment. Is that what we want?

With great respect to the noble Lord, who is always so lucid in his exposition, I am afraid that I remain not only completely unsatisfied with his answer to the amendment but also proud of the fact that I put the amendment forward.

Lord Carr of Hadley

As someone who was Home Secretary 17 years ago i am very reluctant indeed to cross swords with my noble friend the Leader of the House who has been Home Secretary much more recently. Of course I accept that, proud though I may be of old hats, times change and hats should change with them.

I strongly support the policy direction in which the Government are leading us here, but I believe that there is a need for a sentence of this kind in this area. That is how I see probation orders having developed. However, one could ask, what is in a name? Sometimes not much, but sometimes a great deal.

I cannot help recalling that on the day on which I had the great honour of being appointed Home Secretary Lord Butler telephoned me from Trinity College, Cambridge, to congratulate me and wish me well. His final words were to ask whether he might give me some advice. I said that he certainly could and I would welcome it. His advice was: never leave the Home Office at night without having a good sniff round for rats, and at the slightest smell of rats do not go home. I have to say to my noble friend that I smell a rat here and we ought to think very carefully before we put this particular issue to bed.

Lord Hutchinson of Lullington

Can the noble Lord, Lord Carr, explain the advantage of not calling a probation order a sentence? I find it difficult to understand. Everyone agrees that the result is exactly the same. The only difference is that one is called a sentence and used not to be called a sentence.

Lord Carr of Hadley

It is difficult to say, and it is because it is difficult to say that I believe that we should not put the issue to bed tonight. I believe that it needs further reflection. The proposed change appears merely to recognise something that has developed and what a probation order has now become. However, if we formalise that and call it a sentence, as is proposed in the Bill, we may inadvertently change the attitude of the courts, the attitude of the probation service and the effect on the offender in a way which we cannot at this moment foresee and may not intend.

I am not sure what the right answer is. All I am saying to my noble friend tonight is that this is a matter which needs careful thought before we finalise it. I should hate to see it, for example, pushed to a Division now. I hope that we may give the matter further thought before we come to a firm decision.

Lord Mishcon

I apologise to the Committee for rising again but I have to do so in order to deal with the point raised by the noble Lord, Lord Hutchinson of Lullington. He asked what is the difference if one says that a sentence follows on a probation order automatically. First, it is and was always meant to be an indication to the outside world that if there was hope for somebody who had been convicted, the court said that he had a chance of proving himself, which is the very essence of the word probation' and although convicted no sentence was passed on him. That was extremely important.

In case any Members of the Committee feel that that is merely verbiage and does not mean anything, I remind the Committee once again of the language of your Lordships' House sitting judicially pointing out the difference; namely, that this is not a sentence, was never intended to be a sentence and therefore conditions should not be imposed in a probation order which amount to a sentence. Those are the words of your Lordships' House. There is a difference.

In answer to the noble Lord, Lord Carr, I do not cheaply—if the noble Lord will forgive the word— want to put the matter to the Committee in a Division. It is a very serious matter, and I hope that in view of what has been said, especially by noble Lords on his side of the Chamber, the noble Lord the Leader of the House will agree that this is a very serious matter. Possibly, as I indicated previously, before it is too late and before the Bill leaves this Chamber we should consider some intermediate stage, keeping the old probation order and no sentence. I ask the noble Lord to say, at least out of courtesy to this Chamber and this important debate, that he will agree to reconsider the matter before the next stage of this Bill.

Lord Harris of Greenwich

During the debate on the Queen's Speech I indicated that I thought that criminal justice issues when debated in this Chamber should not lead to the usual confrontation between political parties. I say that in order to explain why I agree with the noble Lord the Leader of the House and probably disagree with the majority of my colleagues. I say that because I have had knowledge of the probation service for a substantial period of time and am President of the National Association of Senior Probation Officers which favours the change that is incorporated in the Bill, as does the Association of Chief Officers of Probation. As the noble Lord the Leader of the House said, those are powerful organisations which represent middle and senior management in the probation service.

I agree with the noble Lord because I want to see, as we all do, more people diverted from custody. I want to see the probation service dealing with more and more difficult clients. I know that the noble Lord, Lord Mishcon, will not agree with me; but it is my view that, if a probation order is a sentence of the court, it is a recognition of the fact that it is the desire of Parliament that the service should supervise more difficult offenders and, in some cases, more dangerous offenders.

I recognise that many of my noble friends will not agree with that view. I agree with the noble Lord, Lord Mishcon, —and, speaking entirely for myself, I would not find it possible to vote against him—that, as he and others have asked the Government to look at the matter between now and Report stage, it would probably be prudent to do so. That is entirely a matter for the Leader of the House. I believe that the proposal is correct and I support it.

7.30 p.m.

Lord Waddington

Perhaps the Committee will bear with me while I deal with one other matter before coming to the rather beguiling invitation to look again at that aspect.

On reflection and with the greatest respect, the noble Lord, Lord Hutchinson, was in error. Making a probation order a sentence of the court has one important practical effect which again fits in with the scheme of the Bill. As a result of making a probation order a sentence, something can be coupled with a probation order and it will be possible for the first time to pass a probation order and fine someone as well. It fits in with the theme of the Bill because it increases the range of options as regards community penalties.

I should not be honest with myself if I were to say that I would think again in this case. I have paid the greatest attention to all that has been said and certainly realise that people with great experience have mentioned their worries about this matter. However, this is not something that has suddenly come to fruition. The policy was set out clearly in the White Paper which was published at the beginning of last year after the most extensive consultations. I believe that I can say with absolute confidence that, with a few exceptions—one of them being NAPO—that policy was formulated as a result of wide agreement among all the interested parties. It is therefore one of those cases in which I can say with my hand on my heart that the Government have thought most carefully about the matter and seen many advantages in making a probation order a sentence of the court as I have explained to the Committee today.

Lord Mishcon

I know that the noble Lord the Leader of the House will not think me discourteous if I say that it is a great pity that he did not accept the courteous invitation given to him from all sides of the House. Having said that, I regard the matter as of such importance that I think it would be—

Lord Elton

I hope that the noble Lord recognises that the opportunity to give time rests with himself as well as with the Leader of the House.

Lord Mishcon

I thought that I had made that clear. The noble Lord, Lord Elton, was not listening with his usual care when I said that I did not intend to divide the Committee.

Lord Elton

I apologise.

Lord Mishcon

The apology of the noble Lord, Lord Elton, is worth very much to me and I thank him for it. I was about to say that I think this principle is so important that it would be wrong, without a full Chamber and at a more appropriate time of the day, to test the view of the Committee. I intend to do that at a further stage of the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

Clause 8 agreed to.

Lord Cavendish of Furness

I beg to move that the House do now resume. In moving the Motion, perhaps I may suggest that the Committee stage does not begin again before 8.35 p.m.

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

House resumed.