HL Deb 18 April 1991 vol 527 cc1613-54

House again in Committee on Clause 23.

Lord Campbell of Alloway moved Amendment No. 70B:

Page 18, line 48, at end insert: ("( )) In section 1(1) (a) of the Children and Young Persons Act 1933 and in section 12(1) (a) of the Children and Young Persons (Scotland) Act 1937, for "ten" there shall be substituted "fifteen".").

The noble Lord said: This is a probing amendment which has the support of the NSPCC and the Association of County Councils. I shall not under any circumstances press it to a Division today. It serves to draw attention to a serious problem and an important gap in the law which ought to be dealt with as a matter of urgency under the Criminal Justice Bill.

I realise that in a thin Committee I speak for the benefit of Hansard but that in no way detracts from the importance, the seriousness and urgency of the situation. As the Committee may know, in a recent case the Court of Appeal was obliged to quash convictions for the manslaughter of a child because it could not be established which of the two accused, who both had the opportunity, inflicted the fatal injuries.

Where do we go from there? I am not entirely sure. However, I know that the Committee will wish to take action because we cannot leave the matter as it is. The object of the amendment is to seek consideration by Her Majesty's Government of the great, important and urgent concern and interest in the protection of children. The object is also at some stage under the Bill to secure a satisfactory and reasonable resolution of the problem.

In a case like this, it could well be that wilful ill treatment in a manner likely to cause unnecessary suffering or injury to health could have been established against either or both of the accused within the section to which the amendment relates. I am assuredly not being technical at this hour. I have not read the transcript of the evidence or the judgment in the case. That may be just as well because whether or not alternative proceedings could have been brought under the section to which I refer is perhaps not the point. It was thought, admittedly by me and probably erroneously, that some greater protection for children could be afforded by increasing the maximum sentence from 10 to 15 years. This is proposed in the amendment for serious cases where death results from the ill treatment of children. However, perhaps it is not appropriate.

Nevertheless, something must be done in the context where, first, two or perhaps three people, and only those people, have access to the child; secondly, that child is found dead; thirdly, that child is found to have been battered to death. Proceedings are instituted. Both of, or all, the people who had access to the child, and only those people, have the right to silence. The prosecution must prove its case. Everything is done in the privacy of this evil home.

Perhaps the only way to deal with a case in those circumstances is to reverse the burden of proof. I do not pretend to know the answer. All I pretend to know is that something must be done. I seek the assistance of the Committee. I beg to move.

Lord Mottistone

I wish very strongly to support the amendment. It seems to me quite incomprehensible that a child aged 16 months, quit:, clearly in the custody of two people, should be murdered and that in the long run nobody should be found guilty of the offence because it cannot be decided which of them dealt the fell blow. That must be wrong, and unjust. It must be something that we have the opportunity to put right in this Bill.

Whether my noble friend's amendment is ideal for the purpose, I do not know, he is more experienced in the law. The way in which he has phrased it does not seem to me to hit the nail on the head. I hope that somebody more expert could find a way of making sure that the law can find one or two people guilty under the circumstances which arose in the case of the murder of Doreen Aston.

Perhaps sometime during the passage of the Bill we shall be able to reach a solution which prevents that kind of crime happening again. I very much hope that my noble friend the Minister will be able to tell us that the Home Office has this well in hand and that he has in mind producing amendments at a later stage which will deal with the problem. As a mere layman, it seems to me extraordinary that the law cannot be phrased in such a way as to avoid this problem.

Lord Richard

I support the thrust of the amendment proposed by the noble Lord, Lord Campbell of Alloway. Prima facie the position is anomalous. If a crime has taken place in a situation where only one of two people could conceivably have committed it, it is anomalous for there to be no liability on anyone's part for what on the face of it is an admitted crime. In popular parlance at least one could say that there is the smell of an absurdity about that. The principle is not confined to crimes against children. It is a well established principle of the criminal law. If the Home Office is considering the matter, I shall be interested to read its comments in due course. If the matter is not being considered by the Home Office, I agree with the noble Lord, Lord Campbell, that it should do so.

Earl Ferrers

My noble friend Lord Campbell of Alloway was right to draw attention to a distressing case. On the face of it some people may feel that the outcome was unsatisfactory. Child cruelty is always a distressing offence. Everyone wishes to ensure that the offenders are properly punished For it. The amendment of my noble friend proposes that the maximum penalty for the offence should be increased from 10 to 15 years' imprisonment.

The worst offences against children are already covered by substantial maximum penalties in other legislation. For example, life imprisonment is the maximum sentence for manslaughter, infanticide, grievous bodily harm and for the most serious sexual offences. In Scotland the common law position is similar. The offence of cruelty to children is likely to be charged only when none of those other offences is suitable. The most obvious example is the offence of neglect or starvation which does not result in death. I do not wish to go into the details of the Aston case to which my noble friend referred.

The noble Lord, Lord Richard, said that the situation becomes difficult if liability cannot be attributed to anyone. It is important to remember that in the case mentioned this evening the couple concerned were freed because they had served their two year sentence while remanded in custody. That was then the maximum sentence for child cruelty. Since then the maximum penalty for child cruelty has been increased to 10 years' imprisonment by the Criminal Justice Act 1988. That increase was imposed after the date on which the couple were convicted.

To some extent the problem which my noble friends have rightly identified, and with which the noble Lord, Lord Richard, is concerned, has already been dealt with. I worry about increasing the penalty for a particular offence simply in order to punish more severely people against whom a different and more serious offence cannot be proven. We increased the maximum penalty for the offence from two to 10 years in the Criminal Justice Act 1988. I hope the Committee will agree that in that respect the problem should be covered.

Lord Campbell of Alloway

I thank my noble friend the Minister for what he said. I thank too all Members of the Committee who have spoken. But with the greatest respect, when my noble friend the Minister says that the issue has been covered, I must disagree with him. The point I am making, and the point made by the noble Lord, Lord Richard, has not been covered. It is not a question of increasing sentences. In that sense I accept that the form of the amendment is inept. A murdered child has been found and only certain people had access to that child. It is a question of whether those people should be entitled to have resort to the right of silence and ask the Crown to prove the case against them or whether the only people who had access to the child and the opportunity to commit the crime must explain what happened to the child. There are certain cases where the burden of proof is reversed.

All I can do is to ask my noble friend the Minister to take on board the situation that has arisen with a view to trying to deal with it on its merits in relation to what has happened and not merely in relation to the form of the amendment which is concerned with increasing sentences. At this stage I can say no more. I can only hope the Government will take the situation on board. If they do not do so by Third Reading, perhaps we shall have to produce an amendment to that effect.

Earl Ferrers

I hope that I can offer a little help. My noble friend's amendment suggests that we increase the penalty for this offence. With respect I believe he is now slightly shifting his ground and saying that we should deal with the right of silence. That is a different matter. My noble friend is further saying that if a child is killed and only two people were present with the child, one of whom must be responsible for the murder, both people should suffer a penalty even if it cannot be proven which one committed the murder.

Lord Campbell of Alloway

No, I am saying that they should merely be asked to explain what happened. That is the difference.

Earl Ferrers

That comes back to the point about the right of silence. I shall, of course, consider what my noble friend has said. I accept that this is an important point. However, I believe the points he has made go wider than the terms of his amendment.

Lord Campbell of Alloway

I am grateful to my noble friend. I accept that the points I have made go wider than the terms of the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23, as amended, agreed to.

Earl Ferrers moved Amendment No. 71:

After Clause 23, insert the following new clause: Savings for mitigation and mentally disordered offenders

(" .—(1) Nothing in this Part shall prevent a court from mitigating an offender's sentence by taking into account any such matters as, in the opinion of the court, are relevant in mitigation of sentence.

(2) Without prejudice to the generality of subsection (1) above, nothing in this Part shall prevent a court—

  1. (a) from mitigating any penalty included in an offender's sentence by taking into account any other penalty included in that sentence; or
  2. (b) in a case of an offender who is convicted of one or more other offences, from mitigating his sentence by applying of any rule of law as to the totality of sentences.

(3) Nothing in this Part shall be taken—

  1. (a) as requiring a court to pass a custodial sentence, or a custodial sentence for any particular term, on a mentally disordered offender; or
  2. (b) as restricting any power (whether under the Mental Health Act 1983 or otherwise) which enables a court to deal with such an offender in the manner it considers to be most appropriate in all the circumstances.").

The noble Earl said: We have already discussed this amendment with Amendment No. 9. It provides a general saving for mitigation and mentally disordered offenders. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 72:

After Clause 23, insert the following new clause: Effect of previous convictions

(" .—(1) Subject to subsection (2) below, an offence shall not be regarded as more serious for the purposes of this Part by reason of any previous convictions of the offender or any response of his to previous sentences.

(2) In so far as the circumstances of any offences of which an offender has been previously convicted are relevant for the purpose of forming an opinion as to the seriousness of the offence, nothing in subsection (1) above shall prevent the court from taking those circumstances into account for that purpose.").

The noble Earl said: This amendment was discussed on the first day of the Committee stage with Amendment No. 10. It tidies up the drafting of the Bill by bringing together in one clause the provisions of Clauses 3 and 6 on an offender's previous record. I beg to move.

Lord Ackner

I ask for the indulgence of the Committee because I do not know what my locus standi is in relation to the fact that this amendment has already been debated. was not present on the first day of the Committee stage for reasons that I expressed last Tuesday. Those reasons were the subject matter of my personal apology to the noble Earl, Lord Ferrers. I do not know to what extent I might at least raise a point for clarification which relates entirely to Amendment No. 72 and to the last six or seven words of subsection (1) of the proposed new clause which states: an offence shall not be regarded as more serious for the purposes of this Part by reason … or any response … to previous sentences".

I am sure that it is entirely my fault, but I do not understand why that is made irrelevant. Section 123 of the Criminal Justice Act 1988, which concerns custodial sentences of young offenders and is therefore directed to trying to control the extent to which young offenders receive custodial sentences, provides that an offender qualifies for a custodial sentence if he has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them. That makes it perfectly clear that in deciding whether or not a young offender qualifies for a custodial sentence it is looked upon as an important relevant factor to have regard to his inability or unwillingness to respond to non-custodial penalties. For the moment I do not understand why for an adult offender the judge, when considering the seriousness of the offence, must ignore: any response of his to previous sentences".

From the point of view of someone who has sentenced in the past that just does not make sense. It is of enormous relevance to know whether his response to previous sentences has been one of enthusiastic compliance or whether he has resolutely failed to comply with conditions of a probation order or a community service order. If I am in order I merely wish to know why the judiciary are to be blinkered in this way, which seems to impose upon them a sense of unreality which is quite unacceptable.

8.30 p.m.

Earl Ferrers

The noble and learned Lord was kind enough to tell me that he would not be able to be present on the first day of the Committee stage. He is entirely in order to ask his question. It so happens that a number of amendments were grouped together with the earlier amendment because they were linked. The noble and learned Lord is entirely within his rights to ask me what this amendment means. However, that sets me a gargantuan task because if the noble and learned Lord in all his wisdom cannot understand the amendment it is rather tough for a mere Minister to explain to a Law Lord what is meant, but I shall do my best.

The amendment concerns the response to a previous sentence. We deliberately did not follow the Criminal Justice Act 1988. That is a form of sentencing on record which we consider undesirable. Community penalties are penalties in their own right. We feel that once the punishment has been completed the offender should not be in jeopardy again for the earlier offence. That is why the different course was followed. I hope that I have explained the position to the noble and learned Lord. If he is still in doubt about it I shall seek further advice and write to him.

Lord Ackner

I am very relieved to know that I am in order, but I am still puzzled. If this material is relevant, and Parliament has said in Section 123 of the Criminal Justice Act 1988 that it is relevant in reference to young offenders, I remain confused as to why it is irrelevant in relation to more adult offenders who should be much more responsible in their response to previous sentences than the youngsters may be expected to be. That is the cause of my concern. Given that Parliament has said that this is a relevant consideration for the young I do not see why —and I use the word relatively—it should be an irrelevant consideration for the more mature.

Earl Ferrers

The best that I can do is to consider what the noble and learned Lord has said because it is obviously a matter about which he has some anxiety. If I may, I shall write to him on the subject and if he wishes to take up the matter he may do so at a later stage of the Bill. That is probably the best way of dealing with the matter.

Lord Ackner

I am most grateful, as always, to the noble Earl for his kindness and generosity. I should be most grateful if he would do as he suggests.

On Question, amendment agreed to.

Lord Hylton moved Amendment No. 73:

After Clause 23, insert the following new clause: ("Amendment of Criminal Justice Act 1961

. In section 26(4) of the Criminal Justice Act 1961 for the words "his sentence shall be treated" there shall be substituted the words "his sentence may be treated".").

The noble Lord said: I rise to move Amendment No. 73 standing in my name and that of the noble Lord, Lord Hunt. I am extremely grateful to the noble Lord, Lord Hunt, for adding his name to the amendment. I saw him earlier this evening and he explained that although he was present earlier in the day he could not stay on to this late hour.

It may come as a mild surprise when. I say that the purpose of the amendment is to benefit prisoners' families and to sustain their relationship with persons in custody. That is not immediately apparent from the text of the amendment. However, on 2.3rd January I gave notice of the underlying point to the right honourable lady the Minister with responsibility for prisons and wrote to her again on 26th March. I sent copies to the noble Earl, Lord Ferrers.

I emphasise again that the purpose of maintaining access and good relations between prisoners and their families is to help make imprisonment a positive rather than an entirely negative experience. Above all, it facilitates rehabilitation and the reintegration of prisoners into the normal life of society. That is why prison rule 31(1), states: Special attention shall be paid to the maintenance of such relations between a prisoner and his family as are desirable in the best interests of both".

I wish to stress the importance of the word "both". That means that the family has a direct interest in the question of the prisoner's location within the prison system. That was a point which I believe the noble Lord, Lord Stallard, had in mind during his intervention on an earlier amendment. It is a point, furthermore, which I understand the report of Lord Justice Woolf strongly underlined. If I am correct I am delighted that it did so.

It will be well known to the Committee that the United Kingdom is divided into three jurisdictions, each with its own separate legal and prison system. These are England and Wales, Scotland and Northern Ireland. It is normal for those convicted to serve their sentences in the jurisdiction in which they were tried. Section 26 of the Criminal Justice Act 1961 provides for prisoners to apply to serve their sentence in their home jurisdiction.

If we examine the question of transfers between England and Northern Ireland there should be no problem in the case of life sentences. The rules governing release for such prisoners are fully discretionary in both jurisdictions. It is therefore perfectly open to the two Secretaries of State to agree that a transferred prisoner shall be treated for the purposes of release in the same way in Northern Ireland as he would have been in England. I trust that the Secretaries of State will take advantage of that ability.

The issue of fixed sentences is, however, more difficult. That is because Section 26(4) of the Act lays down that a transferred person shall be treated as if he had been sentenced in the receiving jurisdiction. The Secretary of State for Northern Ireland therefore has no discretion. He must give a transferred prisoner the benefit of the more lenient remission available in Northern Ireland as compared with England and Wales.

That point was well illustrated by the recent case of Mr. John McComb, a prisoner from Belfast whom I visited in gaol in England and whose mother I have met in Belfast. He applied for judicial review of the Home Secretary's refusal to transfer him to Northern Ireland. The High Court upheld the Home Secretary because transfer would have resulted in an extra two years or so of remission on a 17-year sentence.

Our amendment seeks to enable the receiving Secretary of State to apply the rules for release and remission that apply at the time of transfer within the sending jurisdiction. I cannot believe that that would be administratively impractical, given the small numbers likely to be involved. I doubt whether there can be more than a few dozen prisoners from Northern Ireland serving long, fixed sentences in England. I speak from some experience, having visited some of the prisoners in England and having called on some of their families in Northern Ireland. I should add that our concern is supported by the National Association of Probation Officers, the Northern Ireland Association for the Care and Resettlement of Offenders and the Committee on the Administration of Justice in Northern Ireland.

The reality that we are addressing is that prisoners transferred to Northern Ireland will be sited within reasonable distance of their families and will be entitled to one visit per week. On the other hand, if they remain in England, they are entitled to only one visit per month. Because of the long distances and the high cost of travel and lodging, they will in practice be lucky if they receive two or three visits per year. Furthermore, there is ample space available within the Northern Ireland prisons.

I was encouraged when the right honourable Lady, Mrs. Rumbold, wrote to me at the end of March. She said that she and her colleagues would consider the steps that they might take to alleviate the problems faced by prisoners and their families in maintaining their links. I trust that those steps include legislative ones. Now seems to be the opportunity. In my view, it would be quite wrong that families should be punished because of technicalities, however heinous the crimes of their relations.

On technical grounds, the amendment may not be perfect and it may require consequential amendments to Clause 86(5). Our amendment concerns the treatment of offenders and is therefore well within the Long Title. The Bill already applies in part to Scotland and I fail to see why it can be wrong to apply it also in part to Northern Ireland. I beg to move.

Lord Stallard

I rise briefly to support the amendment standing in the names of the noble Lords, Lord Hylton and Lord Hunt, and so ably interpreted by the noble Lord, Lord Hylton. As he said, it is along the lines that I mentioned with regard to an earlier amendment this afternoon, so I shall not repeat my argument.

I hope that the Minister will consider this to be a serious issue, given the atmosphere that the present Secretary of State for Northern Ireland is trying to create in that part of the United Kingdom. Given his attempts, would it not be better if we could remove some of the major obstacles—and this is a major obstacle—in that part of the United Kingdom? It might make the Secretary of State's task that much easier if people knew that something constructive was being done to help the families and children involved. The noble Lord, Lord Hylton, referred to the tremendously long journeys which in my view and the view of all those people who understand the situation are totally unnecessary.

However—this is where the credibility of the system comes into doubt—it appears that someone has said that we shall release or transfer the statutory Irishman every five years. The criteria for parole are then changed, so we catch another few of them in the trap as a result of the new rules. As I said earlier, there have been about six changes in the criteria since 1973. Out of six prisoners who were all sentenced in the same court for the same crime at the same time by the same judge, five have been sent back, mostly one at a time, although in one instance two at a time. The one who is left is now trapped and told that he cannot be considered because the criteria have again been changed. That does not help the atmosphere that the Secretary of State for Northern Ireland is trying to create. I hope that the Minister will at least agree to reconsider the amendment tabled by the noble Lord, Lord Hylton.

8.45 p.m.

Earl Ferrers

I know that the noble Lord, Lord Hylton, is concerned about prisoners both here and in Northern Ireland and that he has been in touch with my right honourable friend Mrs. Rumbold about the matter.

Under the present law, a prisoner, who is sentenced in England and transferred at his own request to Northern Ireland, will be subject to the early release arrangements which operate in Northern Ireland. If he were transferred in the other direction, from Northern Ireland to England, to serve out his sentence in an English prison, then the early release arrangements to be introduced for England and Wales by this Bill will in the future apply to him. The procedures on early release and recall to prison are complicated, but at least under this arrangement all parties know where they stand. All prisoners in a Northern Ireland prison are subject to the Northern Ireland rules, and all prisoners in a prison in England and Wales are subject to the rules for England and Wales.

I have some sympathy with the noble Lord's underlying concerns, but I see some serious difficulties with his amendment. It would introduce an element of discretion into the existing arrangements. It would provide that a prisoner's sentence "may" be treated as if imposed in the jurisdiction to which he is transferred and not that it "shall" be so treated. So a prisoner who is moved from one part of the United Kingdom to another could be subject to the early release arrangements operating in either. He could be transferred to Scotland but remain subject to the English arrangements, or vice versa.

That seems to me to be a recipe for confusion. It is not as simple as the noble Lord, Lord Hylton, suggests. It is not clear, for a start, who is to decide to which arrangements a transferred prisoner will be subject. Is it the prisoner, the transferring authority, the receiving authority, or some combination of those? The early release arrangements in Northern Ireland are different from those applying in England and Wales. The differences between England and Wales on the one hand, and Scotland on the other, are fewer, but some may remain even after implementation of the Kincraig proposals which are similar to those of the Carlisle Committee. The decision on which rules to apply could therefore affect the date of the prisoner's release. In such an important matter, it seems to me that there should be a clear and unambiguous rule. It should not be left to an administrative decision of some kind. The clearest and most practical rule is that the prisoner should be dealt with according to the arrangements in force in the jurisdiction where he is held.

There would be difficulties on a practical level too if we departed from that rule. For example, the prison authorities in Northern Ireland would have to work out how the English procedures applied before releasing someone transferred from England. Cases involving long-term prisoners transferred to Northern Ireland would still have to be considered by the Parole Board for England and Wales perhaps many years after those prisoners had last had any contact with the prison authorities in England and Wales.

Furthermore, Section 26(4) of the Criminal Justice Act 1961 extends to a prisoner's detention as well as to his release. That presumably includes the application of prison rules and adjudications on breaches of these. To have an inmate who is accommodated in one jurisdiction but who is subject to the day-to-day regulations governing another would be unfair both to the individual and to the other inmates and would be administratively unworkable.

However, I have some sympathy with the noble Lord's concerns. The current arrangements sometimes create difficulties for families of prisoners who have to travel a long way to visit them. As the noble Lord said, he has recently met my right honourable friend Mrs. Rumbold to discuss those issues and has had some correspondence with her. He knows that we are considering further the scope for alleviating the very problems which are caused to prisoners and families by the operation of the 1961 Act, to which he has quite correctly referred. I hope that, if that is the case, he will agree that it would be suitable for my right honourable friend to consider how best we can alleviate these problems.

Lord Hylton

I am grateful to the noble Earl at least for his sympathy, but that is about as much as I can say. He told us that prisoners now in England know where they stand. That is true, but the practical result seems to be that they fail to get transferred when they ask for it, as I believe I brought out reasonably clearly in the case of Mr. McComb.

It is somewhat difficult to avoid at least the suspicion that the Home Office is not very anxious to help. Had the noble Earl been able to say what practical steps the Government have in mind for alleviating the situation caused by the long journeys to visit and by the cost of visiting, we should have made a little progress. But that does not seem to be the case and I regret it.

The hour is late, and the issue is a complicated and technical one. I do not intend to press the matter tonight. However, I reserve the right to come back to this point at later stages of the Bill and indeed any other relevant legislation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Henderson of Brompton moved Amendment No. 73A:

After Clause 23, insert the following new clause: (" .—(1) (a) Where a person has been convicted by a court of placing himself or herself in any public place, street, highway, court or passage to beg or gather alms under section 3 or 4 of the Vagrancy Act 1824 as amended, then he or she shall be liable only to:

  1. (i) a fine not exceeding level 1 on the standard scale, or
  2. (ii) a conditional discharge, or
  3. (iii) an absolute discharge, or
  4. (iv) a probation order.

(b) Before imposing a fine on such an offender as is mentioned in paragraph (a) the court must be satisfied beyond reasonable doubt that the offender was not begging for money on which to support himself or herself.

(2) Where a person has been convicted by a court of wandering abroad, or lodging in any barn or outhouse or in any deserted or unoccupied building or in the open air or under a tent, or in any cart or waggon and not giving a good account of himself or herself contrary to sections 3 and 4 of the Vagrancy Act 1824 as amended, he or she shall be liable only to—

  1. (a) a conditional discharge, or
  2. (b) an absolute discharge, or
  3. (c) be made the subject of a probation order.

(3) Section 5 of the Vagrancy Act 1824 as amended is repealed.").

The noble Lord said: This amendment stands in my name and the name of three other Members of the Committee. Perhaps I may say at once that, although I move the amendment with the utmost intention to persevere with it, I do not for two reasons seek the Division of the Committee today. The first reason is because I feel that the Committee, and the Government in particular, will already have had enough of Divisions for one evening. Secondly, I very much hope that after two-thirds of the Members have gone to bed happily, between us we can persuade the Government there is absolutely no need for a Division and the noble Earl will be able to say that this amendment or something like it which he may be able to improve upon will be acceptable to the Government.

I say that with a certain amount of confidence because the Prime Minister, Mr. Major, has so notably expressed his sympathy with the people who sleep rough on the streets. Not only has he expressed sympathy but without dithering at all he has done something practical for them and done it quickly. I hope that with that kind of support the noble Earl will view this amendment with sympathy just as, I hope, will the Prime Minister, if he hears of it.

This is not the first time that this matter has been raised in the present session. Members of the Committee will remember that, greatly to his credit, the noble Lord, Lord Stallard, introduced the Crime of Vagrancy (Abolition) Bill in 1990. Although there were reservations by the Government, it went unopposed through this Chamber and is now in the House of Commons, where it languishes. During the Second Reading debate on 11th December last year I suggested that an alternative means of achieving perhaps most of the purposes of that Bill would or could be found by way of amendment to the Criminal Justice Bill and would have a better chance of success than a friendless Private Member's Bill coming from this Chamber with no one to take it up and ensure that it prospered in the House of Commons.

Therefore I and my noble friends have tabled this amendment, with due regard—I say this particularly to the noble Earl —to the reservations that he expressed on the Bill of the noble Lord, Lord Stallard, and also with due regard to the Long Title of the Bill. I say that because on Second Reading the noble Earl expressed the view that the proposal could possibly be incompatible with the Long Title of the Bill. As we have carefully drafted the amendment it is compatible with the Long Title. We hope to secure the meat of the Bill of the noble Lord, Lord Stallard, in the Criminal Justice Bill.

I shall not say—because it would be dishonest of me to do so—that I would not have preferred the Bill of the noble Lord, Lord Stallard, to go through. But I hope that the meat of his Bill will be accepted in the Criminal Justice Bill. In these propositions the meat is that there seems to be no rational defence of a law which makes it an offence to sleep rough on the streets. Moreover, there can be no rational defence of a law which makes it a crime peacefully and without aggression to ask a passer-by for money, particularly when the person asking for money has no other means of support. As I said, the Long Title of the Bill is too restrictive to enable us to repeal entirely Sections 3 and 4 but it is enough for us to be able to seek to amend those Sections so as to alleviate the misery of those against whom this Act is used.

This amendment has the support of the noble Lord, Lord Stallard, and also, I am happy to say, the support of the noble Lord, Lord Alexander of Weedon, and the noble Lord, Lord Meston, who cannot be here today, from the Liberal Democrats. So it has all-party support. It seeks to meet the issues raised by the noble Earl at Second Reading of the Bill of the noble Lord, Lord Stallard.

From the Second Reading debate I gather that the Government believe that not all those who beg do so because they need to beg. Here I refer to what the noble Earl, Lord Ferrers, said on Second Reading. In so many words he said that those who beg are not necessarily genuinely needy or homeless. I have sought to meet that objection by subsection (1) (b) so that before a court could impose a fine on someone convicted of begging, the prosecution would have to satisfy the court beyond reasonable doubt that the offender was not begging solely to support himself, herself or dependants.

It seems reasonable to place that burden on the prosecution because it is the police who say that there is a problem with professional beggars. The police say that that problem exists and, if so, when they prosecute surely they must prove that it does exist in each particular case. Should the prosecution be unable to prove that the person in question is a professional beggar, then the court is restricted as to the sentence which it can impose. It may impose an absolute discharge or a conditional discharge or make the offender subject to a probation order. The same applies under subsection (2), where the powers of the court to sentence someone convicted of sleeping rough are similarly restricted. This amendment removes the power to fine such an offender.

Many people would find it repulsive to fine someone who is sleeping rough. The court would be enabled to impose only an absolute discharge, a conditional discharge or to make the offender subject to a probation order. That seems to me very much in line with the purposes of the Bill which is to keep such people out of the criminal justice system and certainly out of prison.

The amendment also seeks to repeal Section 5 of the Vagrancy Act which enables an offender to be committed to the Crown Court for sentence. It seems to us that that part of the Vagrancy Act has been repealed. Following the report of the Home Affairs Select Committee in 1980–81 and the Criminal Justice Act 1982 which implemented that committee's recommendation, both begging and sleeping out ceased to be imprisonable offences. It is therefore no longer appropriate to commit such people for sentence to the Crown Court. The reason for committing someone to the Crown Court for sentence would be that the sentencing powers of the magistrates' courts are inadequate. But when Parliament decided in 1982 that those should not be imprisonable offences, it was, I presume by oversight, that this provision was left in the law. For that reason we do not argue that issue any further but propose, I hope with the agreement of the noble Earl, that that provision should be repealed as a consequential amendment. It is consequential upon what was enacted in 1982.

I have great reservations about the continuance of the offence of sleeping rough. It is not the number of people who are brought to the courts for sleeping rough that matters so much as the use which is made of the offence by the police in threatening prosecution unless those who sleep rough move on. That use of the power is not reported by the police. We therefore cannot know how often it is used. However, those who work among the people sleeping rough on the streets find that it is frequently used but not recorded among the offences. The offences recorded by the police under this section are no indication of the extent to which that power is used.

The amendment proposes to remove the power of a court to fine people for sleeping rough. A fine seems totally inappropriate for people who cannot find enough money to sleep at home. However, it gives the court an opportunity to offer help and assistance to people in that unfortunate position. That help and assistance comes through a probation order which the court may order, or a discharge. That must be preferable to a fine for someone who is so low in life that he sleeps rough. I invite the noble Earl to consider that as the more humane course of action.

In the Official Report of the debate on the Second Reading of the Bill of the noble Lord, Lord Stallard, on 11th December 1990, at col. 489, the noble Earl states: The Act also provides for action to be taken against unlicensed pedlars, riotous or indecent behaviour by common prostitutes, dishonest fortune tellers and those who are found on enclosed premises for an unlawful purpose, as well as the offence of indecent exposure which the noble Lord would wish to be retained".

Again I suggest that the noble Earl was perhaps wrongly advised and that by oversight the Government overlooked Schedule 1 to the Statute Law (Repeals) Act 1989 which repealed the offences committed by unlicensed pedlars and so on. In view of that repeal I hope that that part of the amendment satisfactorily disposes of that objection and that the noble Earl will agree accordingly.

In another observation of the noble Earl, he made the point that only aggressive beggars were prosecuted. But aggression is not apparent in the offence, look for it as one may in the Vagrancy Act. The experience of those working directly on the streets is that people can be, and frequently are, prosecuted where no element of aggression or intimidation whatever has been present. That cannot be right. Leaving aside the broader issues, I believe that it is right to restrict the court's sentencing powers to enable them to assist offenders rather than to punish them by way of a fine. After all, none of them—except possibly professional beggars—can afford to pay even a low fine. Those who are professional beggars will still be able to be fined.

I shall spare the House from listing them, but I shall be happy to give the noble Earl the alternative offences by which the more objectionable forms of behaviour of those who are on the streets could appropriately be dealt with.

I conclude briefly that the only people liable to be fined under the Vagrancy Act after the passage of this amendment would be professional beggars. In 1982 Parliament decided to remove imprisonment as a sanction. We therefore do not mention imprisonment. Of course it would still be possible for the police to arrest and detain people in police cells overnight prior to their appearance in court when the police believe that there is no address at which a summons can be served. One night's stay in prison is still a possibility.

We further propose to restrict the powers of the courts by keeping fines only for those who can be shown to be professional beggars. That is a reform which I hope the Committee will agree is reasonable and takes into account the Government's objection on a previous occasion. I commend the amendment to the Committee.

Lord Alexander of Weedon

My interest in the issue arises because, in common with the noble Lord, Lord Murray, who I am glad to see in his place, I am a trustee of the charity, Crisis. Throughout the year the charity is concerned with the problems of homeless people not only in our capital city but in urban and rural areas throughout the country.

I declare my firm interest in the issue on a clear basis. I believe homelessness and the begging associated with it to be a social problem. I regard it as bizarre that in the last decade of the twentieth century such an act should be criminal under a law passed in the immediate aftermath of the social problems of the Napoleonic wars. That argument may have a familiar ring to my noble friend Lord Ferrers. He will recognise speaking in support of the amendment a number of Members who debated earlier in the Session the abolition of the Vagrancy Act in a Bill introduced by the noble Lord, Lord Stallard. The Bill passed through this Chamber but I understand that there is no reasonable prospect of it passing through another place. If I am wrong and my noble friend tells me that the Government intend to give the Bill time, I shall readily be party to the withdrawal of this amendment.

On the assumption that the Crime of Vagrancy (Abolition) Bill will not become law we must deal with the situation as it exists. Therefore we must consider within the scope of this Bill what is the right penalty for begging for subsistence and for sleeping rough. I am sure that the common ground will be that the punishment for those offences —if offences they must be, and for this purpose I loyally accept that to be the state of the law—must fit the crime.

I need add little to what was said by the noble Lord, Lord Henderson. However, perhaps I may comment briefly on the amendment's two central proposals. The first proposal is that only those beggars shall be fined who are begging for purposes other than subsistence, or who commit other conduct such as intimidation or aggression that gives rise to a breach of the peace or is punishable under other legislation. The simple purpose of the amendment is to ensure that those who beg for subsistence shall not be liable to a fine. It should be for the prosecution to prove that the purpose of begging is for some form of personal enrichment other than subsistence.

Perhaps I may ask a rhetorical question which is dangerous because sometimes it receives the wrong answer. Is it not daft that those who are begging in order to subsist should have an added financial burden imposed upon them for doing so? In the light of that, what will they do? What would any of us do if we were in that situation? We should find the incentive to return to begging increased by order of the court. On that basis I support that aspect of the amendment.

I turn to the second substantive element. It is the proposal that in no circumstances should someone be fined for sleeping rough. On the assumption which I find difficult to take but do so—that sleeping rough is somehow to be regarded as a criminal offence rather than a social problem—how does such degree of criminality as the Government can find within it require a fine to be imposed rather than help to be given? We know that many people who sleep rough are young or psychiatrically disordered. There is no evidence to show that people who sleep rough are in circumstances which warrant a fine being imposed upon them or their being at risk of a threat of a fine.

The amendment points the way firmly to their being given help. Perhaps I may ask another rhetorical question. Is it not help and not a fine that they want? I believe that the amendment accords with what can be regarded as humane, just and decent by right-thinking members of our society. Since I regard this Government as being humane, just and decent, I speak with the optimism that my noble friend Lord Ferrers will find reason for accepting the principle of the amendment. I support the amendment.

Lord Hutchinson of Lullington

In the absence of my noble friend Lord Meston I speak in support of the amendment. It is almost unbelievable, as was said by the noble Lord, Lord Alexander, that we are debating this subject. When I started at the Bar, 45 years ago, I went round the magistrates' courts dealing with people brought before the courts under the Vagrancy Act 1824. I could not believe what I was doing; yet here we are, 45 years later, still discussing the abolition of this Act. How refreshing it would be if, at long last, the Minister could stand up for once and say, "My goodness, having listened to the debate I agree entirely and I shall see that it is swept away." These are social problems and have nothing to do with the criminal law in any shape or form. Oh how slowly it all grinds on.

Surely we have reached the point at which the noble Earl can at last rise to his feet and say, "Look, we need discuss this no longer. Of course this is correct and I accept this amendment".

9.15 p.m.

Lord Richard

I find the arguments of the noble Lord, Lord Alexander of Weedon, my noble friend Lord Stallard and the noble Lord, Lord Henderson of Brompton, totally convincing. I sympathise with the noble Lord, Lord Hutchinson. When I started at the Bar I frequently wondered not only what I was doing but why I was doing it and who would benefit from it.

In this instance it seems to me that 1824 is a long time ago. Such mischief as there may have been in the aftermath of the Napoleonic Wars is no longer with us, even under this humane and decent Government. I support the proposed amendment.

Lord Elton

If my noble friend is going to resist this desirable amendment I hope that he will explain not how such an ancient requirement should remain in the law because habeas corpus is a great deal more ancient. I do not believe that antiquity invalidates law—but that he will explain to me, because I cannot understand it, under what circumstances young people would choose to sleep rough if they had a viable alternative and how imprisonment might induce them to take that alternative choice. It will be interesting to hear also how fining people who are begging for subsistence will keep them away from crime.

Lord Murray of Epping Forest

Perhaps I may address very briefly the difference between the inadequate sheep and the professional goats among the beggars which exercised the mind of the noble Earl during a previous debate on this subject. The emergence of begging has been a recent and most unpleasant phenomenon. Surely it must be a passing phenomenon. We cannot imagine it continuing indefinitely.

As has been said, this will not go away unless we take action to remove the causes—lack of jobs, housing and so on. That is where the emphasis must be. When that is done there should be no justification for begging. The professional beggars who do not beg because of need can and should be dealt with properly by law.

The amendment provides specifically for that. However, the amendment rightly aims to remove the odium from the mere act of begging to meet real needs. There are people who beg to meet real needs. Sometimes they may be mistaken and there may be alternative ways of meeting their needs. I hold no brief for the professional beggar and have not much taste for haphazard giving to people who beg in the street. However, we need to distinguish between the two problems and we can do that.

The amendment does that. There are some—perhaps even many—who are either ignorant or inadequately motivated to work. In those cases the emphasis should be on providing support with information, which they often lack, and practical guidance. That can arid should be given under a probation order and not by fining or imprisonment. Those people should be given into the care of somebody who will get them back onto the right lines.

If they refuse to take advantage of the opportunity of that guidance and advice they leave themselves open to the charge of begging for money on which they do not depend. They can then be dealt with properly. However, the amendment finds a good way of distinguishing between the inadequate sheep on the one hand and the tiny minority of professional goats on the other.

Lord Stallard

The vagrancy Bill which I sponsored has been mentioned by Members of the Committee who have spoken in this debate. The noble Lord, Lord Henderson, said that there were one or two reservations at the Second Reading of that Bill. This amendment is designed to take care of those reservations. Therefore, it seems to me that the misgivings raised by the noble Earl, Lord Ferrers, at the end of that debate have all been met in this amendment.

The amendment goes further than that. It takes away completely the criminality aspect from the offence of begging for subsistence and sleeping rough. It introduces an element of assistance which we should all like to see. My interest stems from decades of experience on the streets with youngsters, old people, vagrants, the unemployed, the sick, the mentally ill, those released from prison, the homeless, and all the problems that they encounter. We used to say that the furthest one could carry a heavy suitcase from Euston was Camden Town. Therefore we had everything in Camden Town, certainly throughout the past 40 or 50 years.

The problem has now grown. The people involved are younger. They are attracted to the capital with false hopes through advertisements and are now in the trap of being unable to return home because of the shame that they may face or because they have been sucked in to all kinds of nefarious activities since they arrived.

The problem is worsening and the people involved are younger than ever. The answer is not imprisonment or the prospect of criminality. That is counterproductive to the extent that with a criminal record not only is it difficult to obtain an interview for a job, but it is impossible to obtain a job, even if one has somewhere to live; one cannot get either if one is homeless. It is crazy to continue mouthing the age old excuses that they are professional beggars, vagrants and so on. It is meaningless.

As the noble Lord, Lord Henderson, said, a great deal of trouble, effort and expertise went into the tabling of the schedule of alternative statutes that could be used for any offence committed by those people the noble Earl, Lord Ferrers, at Second Reading, said he was afraid may be breaking the law. All those offences could be catered for. The noble Lord, Lord Henderson, mentioned one which the noble Earl mentioned in error in winding up that debate. I must put on record that he wrote to me pointing out that it was an error, and corrected it in correspondence. Having said that, the noble Earl and everybody who has spoken tonight have removed any arguments that there may be against the amendment.

Earlier today we heard the noble Lord the Leader of the House making great speeches regarding public opinion and its effect. I speak to the public. I have received God knows how many letters since the introduction of the vagrancy Bill and had many interviews. Professional organisations have written to me; the latest is the BMA which now supports the humane approach suggested by both t he amendment and the Vagrancy Act. They cannot all be wrong. If the noble Lord the Leader of the House advocates listening to public opinion, why does he not do so? The public say that the law is outdated; it is counterproductive; it is outmoded. We should not treat those people like that. They need help, homes to live in, jobs to do and assistance.

That is the way the problem should be tackled. If we put as much energy into that as is used by the police force and the judiciary in picking up those alleged vagrants, scoundrels, vagabonds, fortune tellers and the whole list of people mentioned by the noble Earl at Second Reading, then I am sure that not only would the problem be solved but also public opinion—which appeared to worry the noble Lord the Leader of the House so much this afternoon—would be appeased.

Since the Second Reading of the Bill and since the introduction of the amendment the noble Earl has had time to rethink the position. Like the noble Lord, Lord Henderson, I await his reply with interest.

Earl Ferrers

I enjoyed the moment when the noble Lord, Lord Richard, said that when he first went to the Bar he wondered, "What am I doing? Why am I doing it? What possible benefit can I be to anyone?" Those sentiments sometimes arise in my mind as a Minister. I sympathise with his feelings of those many years ago, which are still prevalent with people later on.

The noble Lord, Lord Hutchinson. in his usual persuasive way, asked why I could not stand up and say, "I have listened to what has been said. Of course I am wrong. I am always wrong and the noble Lord, Lord Hutchinson, is always right". I long to agree with the noble Lord, Lord Hutchinson. I would rather the noble Lord, Lord Hutchinson, agreed with me; it would make things so much easier. However, I find it difficult to agree with him, though I shall do my best.

The clause would reduce or eliminate the penalties for offences under the Vagrancy Act. The maximum fine for begging would be reduced from the present level of £400 to £200 under the Bill's provisions. No fine can be imposed unless the court is satisfied beyond all reasonable doubt that the offender was not begging for money to support himself or herself. The penalty for sleeping rough, which is not an offence unless the person has been directed to suitable free accommodation and refuses, would be confined to a. discharge or a probation order. The magistrates' remaining powers to commit persistent offenders to the Crown Court would be repeated where the offenders can be dealt with for indecent exposure or being on enclosed premises for an unlawful purpose.

We are familiar with the campaign to end the Vagrancy Act. As we have been reminded this evening, we had the opportunity to debate it last year. I do not blame the noble Lords, Lord Stallard, Lord Henderson and my noble friend Lord Alexander for having a second bite of the cherry. It cannot be said without comment that the Bill proposed by the noble Lord, Lord Stallard, went through your Lordships' House and is now in another place. Because it is feared that the Bill may not have success there, the opportunity has been taken to have another go at the problem.

It is important to get one issue absolutely straight. Homelessness and poverty are social matters of great concern. They should be tackled. One likes to think that that is being done albeit not hard enough or successfully enough under other legislation. It is wrong to think that beggars are necessarily poor because they are not. Some may be. The courts must take account of their means in setting a fine. The noble Lord, Lord Stallard, said that a great many young beggars are now coming on to the streets and that that is awful. I remind him that not all these people are prosecuted.

The fact that there may be more beggars coming on to the streets is a matter for great regret. It is also something which we are all greatly concerned about. That does not mean to say that we should remove a stricture which the law has. The fact is that not all people who beg are necessarily poor. The courts have to take account of their means when they come to certify. Our provisions on unit fines are designed to make this more effective and realistic. If a person cannot pay he is unlikely to be given an unreasonable fine. The maximum penalty also needs to be set in order to allow for the worst kind of case; for example, if an offender threatens or intimidates passers-by and he has a tidy sum of money available. Some people who beg are not penniless. The noble Lord, Lord Henderson, quoted me in connection with the Vagrancy Act and said that he had tried to meet the objections that I put forward.

I wonder whether we can reasonably require the prosecution to prove beyond reasonable doubt that the offender was not begging for money to support himself, as the new clause states, before the court shall have power to impose any fine at all for begging. Means assessments should be done conscientiously for all offenders. It is taking too much on trust to give those who beg in the streets the special privilege of immunity from a fine because they are presumed to be penniless unless the prosecution successfully overcomes that high burden of proof.

I have mentioned that sleeping rough is only an offence in carefully defined circumstances; for instance, where a person has refused to go to free accommodation or where he causes a nuisance. In that regard there were only 16 convictions in the whole of England and Wales in 1989. Although it is rarely used, a fine can be a suitable disposal if more than a discharge is justified and the offence does not justify a probation order which must last for six months and requires the offender's co-operation. In the nature of things a recalcitrant rough sleeper is unlikely to give that co-operation. I also oppose the repeal of Section 5 of the Vagrancy Act. It has already been amended with the result that only the persistent offenders who commit indecent exposure or who are found on enclosed premises for an unlawful purpose can be sent to the Crown Court. These can be grave enough matters in my judgment to justify giving magistrates the opportunity of sending them to the Crown Court.

The case which has been put forward so often by many noble Lords concerns whether those who are poor, those who are sleeping rough, those who are homeless and those who are penniless should be caught under such provisions. The fact that they can be caught does not mean to say that they are caught. The strictures under this Bill, and indeed, under the Vagrancy Act, are there for those people who do not necessarily fall into that category but who are more determined beggars; and there are those. I think it is right that we should keep that provision, but at the same time deal in a much more social and humane way with the problems of homelessness, sleeping rough and being penniless.

9.30 p.m.

Lord Alexander of Weedon

Before my noble friend sits down perhaps I may ask him one question arising out of his answer. He indicated that there were circumstances in which a fine might be an appropriate disposal for the offence of sleeping rough. Will he be good enough to give an illustration of any set of circumstances which might justify a fine merely for sleeping rough?

Earl Ferrers

The courts can have that disposal. It would be available for them to use if they considered the circumstances correct. I do not know all those who sleep rough. I have been out at night around London with the Salvation Army visiting those who are sleeping rough. It is a very illuminating sight. All I can tell my noble friend is that some people sleeping rough, it seemed to me, were not totally penniless. They had their own reasons for sleeping rough. I can tell the Committee of one instance where a person had a job at an abattoir. He was content to sleep rough in the Bull Ring. I do not know what his income was. I do not know whether what he was doing was within or outside the law. However, there are people who do have money and who do sleep rough. If a person were to find himself in front of the courts and the courts found that he had committed an offence, the courts might decide, if he had sufficient resources, that a fine would be a suitable penalty.

Lord Stallard

Before the noble Earl sits down, I accept that there are some people sleeping rough who have money. Of course there are. I know people who have come to London to seek employment but cannot get housing. One must realise that rents in London are nothing less than £100 for one room, £150 for two rooms and so it goes on. There are people who do not have that kind of money. So what do they do? They cannot give up their job; they have a family up north to keep; they have to keep as much money as they can. They are forced by circumstances to sleep rough. Should they be arrested and fined or prosecuted? Of course they should not.

Does the noble Earl accept that their situation has been worsened by government policy? The situation of young people, students, trainees and so on, has been worsened by dramatic changes in social security benefits. Many of those people are caught in this trap. They have no benefit. They cannot even afford a hostel, let alone proper accommodation. Would it not he more constructive to say that we will recommend that the Secretary of State for Social Security has another look at benefits to see whether the situation can be improved. That would be far more constructive than saying that we will reduce the fine to £200. One might just as well make it a million than reduce it to £200. Who has got £200 when he is sleeping rough on the streets? I do not know any with that kind of money.

The Government are taking a completely wrong approach. The amendment seeks a humane, reasonable and constructive approach rather than punishment.

Earl Ferrers

I accept the difficulty of hunting for a place to rent. The noble Lord says that it costs £100 a week and asks: who has got that? But nobody will be prosecuted for this kind of offence unless he was actually given shelter and refused to take it. It is only then that he comes within the ambit of possibly being prosecuted. The noble Lord, Lord Stallard, asks why the Government do not do something to help these homeless people. I recall, either in connection with the Bill of the noble Lord, Lord Stallard, or in responding to a Question, that I have had a great deal of information about exactly what the Government have done and are doing over homelessness. I have not retained it all in my mind, but if the noble Lord wishes me to let him know exactly what the Government are doing, I shall happily do so. They have made quite a substantial contribution. It is only right that that should be so. However, I do not believe that we want to confuse the business about what we are doing as regards homelessness and sleeping rough with this particular piece of legislation, which deals with catching people who do not necessarily fall into that category but who sleep rough for other reasons.

Lord Harris of Greenwich

The noble Lord, Earl Ferrers, said a short while ago that he was longing for the day—or words to that effect—when he would be able to say to my noble friend Lord Hutchinson of Lullington that he agrees with him. He then added that he would find it even more agreeable if my noble friend were to agree with him.

We are looking forward to the time when the noble Earl will rise and say that, on the basis of a debate in this Chamber, the Government are prepared to look into a matter without making a final commitment. It really is not good enough. We have heard a very powerful speech from the noble Lord, Lord Alexander. To put it no higher, it is extremely discouraging when one receives such an inflexible reply as that just given by the noble Earl.

I very much hope that the noble Earl will feel able to be more accommodating when he subsequently reflects upon the matter. It seems to me that almost every speaker in the debate has made his position very clear. Moreover, we had a Bill on the matter introduced by the noble Lord, Lord Stallard, which received overwhelming support. We are not asking the Government to accept the totality of the amendment, but we do ask them to at least move to some extent in the direction of what is proposed.

It is most astonishing that we should be having a debate in this Chamber in 1991 in which we are solemnly discussing how someone who is sleeping rough and who has virtually no resources can have a fine imposed upon him by a court which will lead almost automatically, as the noble Lord, Lord Alexander, said, to him having to go back on the streets to start begging in order to pay the fine or recover the money which he has spent on it.

Although the noble Earl seems to be wholly inflexible so far as concerns this Bill, he usually goes to much trouble in an effort to help us. I am not asking him to reply this evening, but I hope that on reflection he will at least consider discussing the matter again with his officials to see whether there can be some movement towards those who have put forward an unanswerable case.

Earl Ferrers

The noble Lord, Lord Harris of Greenwich, has a lovely technique of putting forward a forceful argument; indeed, it is rather like a bulldozer shoving one along the road. However, he then concludes by saying that he does not expect me to reply. Of course I am only too happy to reply to him. I hope that I have not been inflexible in the matter. But, nevertheless, I am sure that he would find it surprising if the Government gave their view on a Bill which came before this place and then six months later, when an amendment covering similar ground was put forward, they took a different point of view. The Government have been consistent in the matter.

Further, when the noble Lord says that a person could be taken before the courts for sleeping rough and fined a certain sum of money which he could not possibly pay, he is not giving the courts any credit for fairness. After having taken into account a person's resources and finding that he has none, the court will not promptly fine him. If the noble Lord thinks that that will happen, he is not giving sufficient credence to the ability of the courts. Of course there are people who could fall into that category who may have resources. If such people are found to have committed an offence, and if they have the resources, the courts may feel that a fine is the right method of disposal. However, those people fall into a slender category.

Lord Harris of Greenwich

I certainly do not want to be a bulldozer on this or any other occasion. All I asked the noble Earl to do was to reflect on this matter following this debate. I am not asking him to make a commitment tonight. In the light of what he said that would be difficult for him to do. All I would say to him with the utmost goodwill is that he has been, if he will allow me to say so, astonishingly inflexible during the three days of this Committee stage.

I realise that the noble Earl is not responsible for this particular part of the Home Office. All I say to him with the utmost goodwill is that I hope he will reflect on this and on other matters so that we do not get this repetition of reject, reject, reject on virtually every amendment moved from any quarter of the Committee however much support it may have. That is all I wish to say.

Lord Henderson of Brompton

I must say that the noble Earl must be feeling lonely on the Front Bench, and I should like him to reflect on that loneliness. There is nobody in the Committee who has remotely supported him, and I would ask him to take seriously the words of the noble Lord, Lord Harris of Greenwich, and reflect on the unanimous opinion expressed in this Committee. He has an interval between the Committee stage and the Report stage in which to do so.

The noble Earl made the astonishing remark that he found it peculiar that we should ask the Government to consider changing their mind within six months; the six months covering the passing of Lord Stallard's Bill in this House and the Committee stage of the Criminal Justice Bill. Why on earth should not the Government consider what is said in Parliament? That is what Parliament is for. It is there to try to persuade Ministers to take another view, or at least to consider another view.

Here is the noble Earl proud of the fact that he has not moved an inch in six months. I find that astonishing, and I think all the rest of us find that astonishing. We ask him to move in the next two or three weeks before the Report stage and to tell us, if he cannot take on board everything that we are proposing, in what way he would like it to be proposed.

I can see one respect in which he might like the amendment to be amended; for instance, in the scale of the fine. He might say that perhaps scale 2, whatever it is called, may be more acceptable than scale 1. That would be a perfectly reasonable amendment, and he might have other things to think about. But to come here and say that he is proud of not having changed his mind one jot or tittle in the six months' interval between the last time and today is, I should have thought, unacceptably inflexible on the part of the Government.

Earl Ferrers

I do not wish to be difficult with the noble Lord, Lord Henderson, but I have not found him to be someone who very often changes his mind.

Lord Henderson of Brompton

I should not have thought that two blacks make a white. That is, I think, the most feeble and most childish argument I have heard in the House in a long time. I am not ashamed to beg. I beg the noble Earl to adopt a more flexible attitude on this occasion if on no other. I beg, I may say to the noble Earl, without aggression. I do not want to be put in the position of King Lear, who said, "Oh, argue not the need" to those two harpies, Goneril and Regan, with whom the noble Earl apparently wishes to equate himself. I would find that an unhappy position to be in if I were the noble Earl sitting alone on the Front Bench.

I ask the noble Earl to consider the theme of everyone who has spoken in this Committee. What these people on the streets need is help rather than harassment, and care rather than criminality. If the noble Earl would kindly consider everything that the Committee has said in the light of my concluding phrases, I am sure that all of us would be extremely grateful to him, and he would find himself a good deal less lonely in the Committee than he now appears to be. With those concluding words, and with the hope that the noble Earl will perhaps drop something in my hat, I beg him to consider what we have said this evening before the next stage. I see no indication of movement on his part, no putting of his hand in his pocket, for instance—he is rather pointedly looking away from me. I am glad that he now turns in my direction and I therefore appeal to him. I see that I am unable to attract him to his feet to respond and I can do no more in the process of pleading. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 agreed to.

Clause 25 [Interpretation of Part I]:

Earl Ferrers moved Amendments Nos. 74 and 75:

Page 19, line 24, at end insert: (" "mentally disordered", in relation to any person, means suffering from a mental disorder within the meaning of the Mental Health Act 1983;").

Page 19, line 24, at end insert: (" "pre-sentence report" has the meaning given by section 3(5) above;").

The noble Earl said: We discussed Amendment No. 74 with the other amendments on mentally disordered offenders during the first day in Committee. We have also discussed Amendment No. 75. I beg to move.

On Question, amendments agreed to.

9.45 p.m.

The Viscount of Falkland moved Amendment No. 75A:

Page 19, line 37, at end insert ("and (d) any other offence where, if it had been prosecuted as an offence under section 14 of the Sexual Offences Act 1956 (indecent assault on a woman) or section 15 of that Act (indecent assault on a man), consent would have provided a defence thereto.").

The noble Viscount said: This amendment adds a qualification to the definition of sexual offences in Clause 25. It introduces the concept of consent as a defence by the parties to the offence, where these offences take place between men. The criterion of consent is also applicable for homosexual offences under Clauses 1 and 2 which may draw harsher sentences in the form of imprisonment as a result of the legislation.

The amendment is consistent with current sentencing by the courts for homosexual acts between two consenting adults involving a man over 16 but under 21. Neither goes to prison for such offences if both are 16 and over and both consented. Only if there is evidence of corruption, coercion or intimidation are prison sentences normally imposed.

The amendment is meant to ensure that no unintended effect of the Criminal Justice Bill increases sentencing for victimless consensual offences. I use this term advisedly because the term "victimless consensual offences" has been accepted by the Government. It may be of assistance to the Committee at this late hour briefly to run through the three offences which are normally involved in this kind of activity.

First, there is gross indecency which is invariably a consensual offence involving intimate sexual relations between two men which does not involve anal intercourse. Other legislation is used if one of the parties is unwilling, if the offence is not in private and if more than two people are present and/or if one of the parties is aged under 21.

In 1988—which is the last year for which one has accurate figures—there were 1,333 convictions and 163 cautions for gross indecency. Thirteen men were sent to gaol and three received sentences of between two and three years.

The second offence is soliciting, which is a public order offence, making it unlawful in a public place for a man to invite or suggest that another person engages in a sexual activity with him. It does not involve any physical contact. If it did, depending on the willingness of the people involved, it would be regarded as an indecent assault or gross indecency. Soliciting is usually only detected by undercover surveillance or police activity. It is extremely rare for a member of the public to be involved as a prosecution witness. Again, in 1988 545 men were convicted of this offence and 153 cautioned.

The third of these offences is procuring, which is the act of facilitating, abetting, encouraging or inviting the commission of sexual relations between men. I do not need to remind the Committee that that activity is entirely lawful under the law today. In 1988, 328 men were convicted of this offence and 39 cautioned.

It is worth noting that, in regard to all these crimes, repeat offences are, unfortunately, not uncommon. These laws criminalise activity which is accepted practice in most of Europe and which for many men is the only possible way in which they can have a means of sexual contact. In the Bill as originally drafted the courts would be invited to study the past records of offenders when sentencing and to consider heavy prison sentences in repeat offence cases. Conviction rates for the three offences that I have referred to run at about 90 per cent. because so many men who are charged are unwilling to contest the charges, as that attracts publicity which could ruin their lives. It is worth noting that a high percentage of males who indulge in this activity and have leanings towards homosexual activities unhappily lead what appear to be ordinary lives and often have wives and children. An unhappy aspect of sexual life in this country is that many who have tendencies of this kind are forced to keep them under cover and commit offences.

The amendment does not seek to exempt any defendant from existing penalties. It is important to stress that. The amendment simply seeks to ensure that consensual offences will not attract the higher penalties made possible by Clauses 1 and 2 of the Bill. It is clear that the penalties for offences of this kind that exist at present reflect, quite properly, the view of society as a whole about homosexual offences of this kind. The view of society may or may not change in the foreseeable future, but it seems certain that no one could possibly believe that serious physical or psychological harm resulted from participation in these homosexual activities, however strange or even distasteful they may seem to others. Thus the amendment is in keeping with the broad philosophy of Clause 1(7).

It is helpful at this stage to go back to the origins of the Bill last November, when various groups and individuals concerned about the current law involving homosexual offences became alarmed at some of the implications of the new legislation which was proposed. As originally drafted, the Bill included as causing serious harm buggery, indecency between men, soliciting and procuring and also offences relating to male prostitution. It is worth noting that it excluded most offences relating to female prostitution.

It reflects credit on the Government that, after a short period of consultation with responsible bodies, they recognised that there was a justifiable concern which ought to be met. That resulted in government amendments which made their intentions much clearer. The amendments were entirely free of discrimination, which had been a fear of homosexual bodies. Credit must also go to the reasonable and thorough way in which those individuals and bodies concerned about the legislation presented their anxieties to the Government.

Discussions covered three key areas. The first was the discriminatory state of existing laws relating to sexual activity between men. The second was the confused state of the law where the same charge applies for victimless offences as for criminal and coercive acts. The extent to which homophobia within the judicial system can corrupt even the best intentions of government would seem to make it necessary for the Government to take into account the drift and the content of this amendment.

The Government have acted with commendable fairness in accepting a great deal of what has been put to them and in amending the Bill accordingly. What I suggest is now needed is for the Government to monitor the effects when the Bill becomes law in order to see whether there is a negative effect in these areas where homophobic magistrates or judges are concerned. The word homophobic is not an attractive word but it is the only one available. It means those who have an almost pathological hatred of homosexual activities and crime. It is hoped that the Government will take a close interest in the results.

I have no intention of pressing the amendment but I look forward very much to hearing the Minister's views, which will be eagerly awaited in many quarters. I beg to move.

Lord Monson

Perhaps I may begin by clashing in the gentlest possible way with the noble Viscount. I am no classical scholar but I believe that homophobic means precisely the opposite of what homosexuals claim it to mean. Homophobia can surely only mean an aversion to one's own kind. That is a minor point but I wanted to get it across because no one else seems to have picked up the point.

The amendment deals with homosexual behaviour between consenting adults. This may therefore be the right moment to refer to a recent court case, the outcome of which has worried a great many people including national newspapers of the highest repute. The case concerned a number of mainly middle-aged men, the majority of them model citizens in most aspects of their lives and some of whom, according to the press, held extremely responsible jobs, but who in one area of their lives—their sex lives—were undoubtedly perverts.

In a nutshell, it appears that those individuals got their pleasure, presumably their sole pleasure, from pain and discomfort being applied to their private parts, in some cases to the extent of having nails driven into the tender areas. Naturally it is repulsive to a normal man, and I would imagine to a normal woman, even to think about such painful procedures. Nevertheless, no minors were involved and indeed nobody under 21 was involved. All of those perverse activities took place entirely in private so that no passers-by could possibly have been offended. Amazingly, no one apparently needed any treatment on the National Health Service or any medical treatment whatsoever. Above all, no one had anything done to him without his wholehearted consent. That is the nub of the matter. Yet the participants received quite severe sentences of up to three years' imprisonment, to the surprise, and I think it is fair to say the indignation, of much of the national press.

It is curious that two men can inflict quite severe injuries on each other in a boxing match, whether in public or in private, without falling foul of the law. As I understand it an individual can quite legally cut off his or her finger with a carving knife should the individual for some strange reason feel inclined to do so. So the decision of the court in the case in question seems thoroughly illogical.

Even if one does not happen to be one of those who subscribes to the belief that individuals have the right to do as they please with their own bodies so long as nobody else is harmed thereby, one must surely agree that prison is the very worst place to send people who in this particular narrow sphere of their lives are obviously deranged—round the bend, in popular parlance. After all, prison must accentuate such tendencies and, moreover, provide an opportunity for them to be played out.

One could agree to leave such individuals, distasteful though they are, alone, so long as they remain thoroughly discreet. That is a course which I would favour. Alternatively, if one happens to be of a bossy turn of mind one could legislate to compel them to submit to medical treatment. Whether any such treatment would do the slightest good I have no idea. I suspect not, but you could always have a go. However, prison seems both utterly wrong and counter-productive. I should be glad to hear the opinion of noble Lords or, failing that, of the noble Earl, Lord Ferrers, on that point.

10 p.m.

Lord Hutchinson of Lullington

At this late hour it is difficult to take up time on a matter such as this, but I have had difficulty in understanding the drafting of the amendment. As I understand it, sexual offences which may draw unto them the extended sentence under Clause 1(7) should be excepted where consent would be a defence as it is in charges of indecent assault; in other words, as my noble friend Lord Falkland put it, any consensual sexual offence as mentioned in the interpretation clause, Clause 25. It is therefore a matter of importance and, as it deals only with male homosexuality, it is particularly important to persons who are homosexually inclined. One is therefore entitled to take a little time on the matter.

There is no victim; there is agreement to what is going on whatever form the sexual offence takes. Surely there are no circumstances in which such offences could possibly entitle a court to give not only an appropriate sentence but an extended sentence. If the noble Earl says, "Ah, but no court would ever do that", the point is that the inclusion of such offences in that interpretation clause sends out a signal to all the courts in the country that the Government take the view that those offences are potentially of a type which should attract, in the worst case, not only a serious sentence but a quite exceptionally serious sentence. Surely that simply cannot be right.

The noble Earl has been a little unkind to me because he has not noticed that on at least three occasions during the passage of the Bill I have said that I think that the Government are right about this matter. He did not get up and say, "Oh, how nice to hear that", on any of those occasions. I hope that on this occasion he will perhaps redress the balance.

I now deal with the two matters of gross indecency and importuning by male persons. The criminal law of this country is far harsher on those homosexual offences than is any other European country. They are simply offences by law. They are nuisances. They are not offences which should attract long criminal sentences. If such behaviour between consenting adults is made criminal, surely penalties should be in proportion to the harm that is done.

The trouble with such offences is that the public harm that they do, the personal disgrace to which my noble friend referred, and the character assassination are out of all proportion to the significance of the offence itself. To be convicted of some miserable offence with another man in a public lavatory is sometimes to bring absolute disaster on the man concerned, his employment and his family which is out of all possible proportion to the public harm caused by two men misbehaving in a public place. That is so much so that the circumstances of these offences give rise to widespread corruption and if not corruption itself then to the temptation to corruption on the part of the police.

Vice squads patrol the lavatories. They patrol parks and dark alleys in built-up areas. They dress in plain clothes and they act, as we all know—it is known not only by those who practise in the criminal courts but by great numbers of the public—as agents provocateurs in those circumstances. What happens is that they do not in fact observe any criminal act at all. They wait until they see someone who is loitering around a lavatory or dark place. They can see that that person is homosexually inclined. After a period of time the person disappears into the lavatory and then comes out again. They then make an arrest. The evidence that they give in court is simply evidence by rote which is always exactly the same. Every man who perpetrates such an offence always behaves in exactly the same way and of course the police have not seen it at all. The evidence is that the person is arrested for what they are and not for what they do.

The offence is very much akin to the offence of the suspected person loitering with intent under the old Vagrancy Act to which reference has been made. Recently, after years of agitation, we finally succeeded in getting rid of it. Why? What was the mischief? The mischief was that people were arrested for what they were and not for what they were doing. The offences of importuning in lavatories and gross indecency alleged between men in public places are of exactly the same kind. It lends itself to all forms of corruption and indeed to the ruin of a person's character.

It seems to me and no doubt to many other Members of the Committee quite outrageous that those offences should be left in the interpretation clause. It is difficult enough to interpret the interpretation clause, but when one ferrets about, as my noble friend has done, one finds that those offences have been left in it. They should not be there.

I hope that the noble Earl will follow the excellent approach of his colleague Mr. Patten in another place who listened to the arguments, came forward and said that he would think again about the matter. As a result the amendment on the Marshalled List has been produced in the name of the noble Earl. Perhaps the noble Earl could follow that example, complete the matter by taking these offences out of this clause and at least accept the amendment.

Earl Ferrers

I should be the first to say to the noble Lord, Lord Hutchinson, that if I was unfair to him I deeply apologise. He was good enough to agree with the Government on a number of occasions—I think he said three but I did not remember to count them. He did indeed say so and I am grateful to him for having acknowledged that he thought that the Government were right.

The noble Viscount's amendment reopened the debate which was commonly known as the Clause 25 issue. It might be helpful to explain to the Committee how the Government view this matter and what we have tried to do about it.

As the Committee will know, the Bill's sentencing provisions enable a court to impose a custodial sentence on someone who is convicted of a sexual offence, in the interests of protecting the public from serious harm from him. In deciding the length of sentence the court may impose a longer sentence than the seriousness of the offence would merit, again in the interest of protecting the public from serious harm from the offender. Clause 25 defines sexual offences so as to include most such offences—for example, rape, buggery, incest, indecent assault, indecency between men and solicitation by a man. There was concern that the courts might interpret those provisions in such a way as to justify longer sentences for persons who were convicted of offences involving minor homosexual acts, where all parties consented, and there was no risk of serious harm.

The Government did not believe that the Bill was in fact open to this interpretation or would have been so interpreted. Certainly it was never the intention of the Government that it should be. We nevertheless moved, by introducing amendments to the Bill in another place, to allay the concerns which had been expressed—something to which the noble Lord, Lord Hutchinson, gave credit. These defined "serious harm", in cases involving sexual offences, so as to make it clear that a longer custodial sentence could be imposed only if this was necessary in order to protect members of the public from the risk of death or serious mental or physical injury caused by a further sexual offence committed by the offender in question. This makes it clear that minor and victimless homosexual activities cannot be used in order to justify a heavier sentence to protect the public. We thought then, and still do, that this was sufficient to meet any reasonable concern about the operation of these provisions.

Perhaps we may consider the amendment for a moment. I am delighted to say that it is my turn to agree with the noble Lord, Lord Hutchinson. I, like he, find it difficult to understand the amendment because its effect is not entirely clear. That is because it requires the courts to sentence for one offence by analogy with another. However, one of the intended effects seems to be to exclude from the definition of sexual offences in Clause 25 of the Bill any offence of indecency between men both of whom were aged 16 or over and both of whom consented.

There are, I think, real difficulties with this approach. Establishing consent is by no means straightforward in every case. It for example, be difficult to establish consent or otherwise in cases where an older man—a respected uncle perhaps—persuaded a boy in his late teens, with inducements, to take part in a homosexual act.

I am not trying to argue that consent is never a relevant consideration in these kinds of case, but simply that the matter is not as clear cut as this amendment would suggest. As I have already explained, the amendments made to the Bill in another place already ensure that, where there really is no risk of serious harm to potential victims, the courts will not have the power to impose a more severe sentence than is commensurate with the seriousness of the offence.

The amendment is therefore, I believe, unnecessary. And I fear that it would also have side effects which I am sure the noble Viscount cannot have intended. For example, it would seem to remove from the power to give a heavier sentence in order to protect the public —which in this case would be the remainder of his family—incest with a girl aged 16 or over where she gave her consent.

The noble Viscount, Lord Falkland, was kind enough to say that he did not intend to press the amendment. However, he wished to know whether the Government would be prepared to monitor what is happening. I can assure the noble Viscount that we shall monitor carefully the effects of the Bill, including this part. I hope that that reassurance will assist the noble Viscount.

The Viscount of Falkland

I thank the noble Earl for his courteous and full reply. I should like to study what he has said and consider the implications. I am not absolutely certain about the doubts that he expressed on consent. I believe that the example he gave about the uncle would be an unlikely event to take place in a public lavatory. It would more likely take place in the home and, if the scenario that he described were to take place in the way that I understood, it would probably come under the heading of coercion or indecent assault. I am not clear about the dangers which the Minister visualises in certain types of consent as he has implied. I should like to look at the matter and reserve the right to come back at a later stage.

Lord Richard

Before the noble Viscount sits down perhaps I may make one comment and apologise for not having been present during the early part of the debate. Members on these Benches also wish to study the precise implications of the wording of the amendment. We too reserve the right to return to the matter at a later stage.

Lord Harris of Greenwich

The Minister said that the matter will be monitored. Precisely who will be asked to do that?

Earl Ferrers

I cannot give the names of the people and the noble Lord would not expect that. However, it will be the responsibility of the Home Office.

Lord Harris of Greenwich

Will it be carried out within the department?

Earl Ferrers

Yes, it will.

The Viscount of Falkland

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.15 p.m.

Earl Ferrers moved Amendment No. 75B:

Page 19, line 42, at end insert ("and includes an offence which is required to be charged as arson (whether or not it would otherwise fall within this definition).").

The noble Earl said: The amendment ensures that the courts continue to have the necessary powers to protect the public from serious harm from offenders convicted of arson. Members of the Committee will recall that under Clauses 1 and 2 of the Bill custodial sentences and longer sentences may be given to protect the public from violent and sexual offenders. That reflects our view that a distinction should be drawn between offences against the person, on the one hand, and offences against property on the other. Arson does not, however, fit very neatly into either of these categories. On reflection we have concluded that it has more in common with violent offences than with property offences and that heavier sentences to protect the public should be available for it.

A charge of arson may be brought, broadly speaking, in one of two forms. The first is arson with intent to endanger life, which is an offence which is triable only on indictment. This would already fall within the definition of a violent offence under Clause 25. The second type of charge—that is, arson other than arson endangering life —would not at present do so. As the Bill stands a custodial sentence or a longer sentence could not be imposed where the offender was convicted of an act of arson which had not on that occasion endangered anyone's safety, even if it were clear that on a future occasion his activities might well result in someone's death or serious injury.

Some arsonists are disturbed individuals who cannot control their impulses. They share some of the qualities of offenders who commit violent and sexual offences. That is why a maximum of a life sentence is available for offences of arson, even if the person is not charged with arson endangering life. The long-held view of Parliament and the courts, which I am sure is right, is that custodial sentences may need to be given in order to protect the public from harm from arsonists.

It is often largely a matter of chance whether anyone is hurt by an act of arson. A building which an arsonist sets alight may or may not be occupied. Even if it is not it may only be a matter of time before a further offence is committed in which someone does get hurt. We believe that the courts should be able to pass protective sentences in such cases.

The courts need their powers to pass longer sentences on arsonists in order to protect the public. That is illustrated by the number of arsonists in the prison population. On 30th June 1989 there were 62 prisoners serving life sentences for arson. There were only two larger groups of offenders sentenced to discretionary life sentences—183 were convicted of manslaughter and 127 convicted of rape.

We are not, of course, saying that offences of arson will automatically attract longer sentences. The courts will still need to be satisfied under Clause 1(7) that members of the public need to be protected from the risk of death or serious personal injury that might be caused by further similar offences committed by that offender. I hope that Members of the Committee will agree that arson represents a special case. No other offences are comparable in being not violent as presently defined in Clause 25 but capable of demonstrating a propensity to dangerous behaviour which puts the public at risk. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 76:

Page 19, line 43, leave out subsections (2) and (3) and insert:

(2) For the purposes of this Part, an offence is associated with another if—

  1. (a) the offender is convicted of it in the proceedings in which he is convicted of the other offence, or (although convicted of it in earlier proceedings) is sentenced for it at the same time as he is sentenced for that offence; or
  2. (b) the offender admits the commission of it in the proceedings in which he is sentenced for the other offence and requests the court to take it into consideration in sentencing him for that offence.

(3) In this Part any reference, in relation to an offender convicted of a violent or sexual offence, to protecting the public from serious harm from him shall be construed as a reference to protecting members of the public from death or serious personal injury, whether physical or psychological, occasioned by further such offences committed by him.").

The noble Earl said: This is a technical amendment to tidy up the drafting of the Bill. It was discussed with Amendment No. 6 on the first day in Committee. I beg to move.

Lord Hutchinson of Lullington moved as an amendment to Amendment No. 76, Amendment No. 76ZA:

Line 8, leave out paragraph (b).

The noble Lord said: I wish to move this amendment because this is the only opportunity to do so. Although the noble Earl's amendment has been described by him as technical, Clause 1(2) states: the court shall not pass a custodial sentence … unless it is of the opinion that the offence, or the combination of the offence and one other offence associated with it, was so serious".

In other words, the most severe community sentence would not reflect the seriousness of the two offences together.

As regards paragraph (b), one of the other offences may be an offence which the defendant asks the court to take into consideration. My amendment suggests that paragraph (b) should be omitted. I understand that the subsection prevents an aggregation of a number of less serious offences in order to justify a custodial sentence. I accept that entirely as a principle worthy of support. It limits the aggregation to one other conviction in the same proceedings or, as I have said, one other matter which is asked to be taken into consideration.

The problem is that an offence asked to be taken into consideration is not in law a conviction. That is an offence about which the offender makes a request to the court. The court may or may not agree to that request. The prosecution and the police may know nothing whatever about the offence. There is no presentation of evidence. There is no statement of the surrounding circumstances, there is no arraignment and no indictment. The full facts and circumstances are not necessarily before the court and, by the very necessity of the procedure, cannot be before the court at the time of sentencing. It is an entirely informal procedure which enables an accused person to clear his record and, indeed, his conscience. It helps the police to increase their clear-up record. Undoubtedly, the procedure serves a useful purpose.

It seems to be a dangerous and shifting sand on which to found a prison sentence for such a matter to be allowed to tip the balance between a community and custodial sentence. That seems to be a very dangerous procedure. Of course, one of the dangerous results of this provision is that on the face of it it will deter offenders from asking the court to have matters taken into consideration. Quite obviously, one could not advise a defendant charged with one offence, which clearly would not justify a custodial sentence, to stand up and say, "Well, will you please take one other matter into consideration about which the police know nothing?" One would have to advise a defendant that if he does that, then he is almost bound to receive a custodial sentence. Therefore it will be extremely difficult from now on to persuade defendants to have matters taken into consideration. That useful informal procedure will, T fear, be set at naught.

The solution to the problem is for the CPS, or whoever is prosecuting, to ensure that the relevant offences known to the police are included in the indictment. If a defendant makes any form of confession, if the prosecuting authority feel that it is of sufficient seriousness, it should be included in the indictment. If it is not in the indictment it should not formally be used for sentencing. That does not mean that the court should not be able to take it into consideration and that the matter should not be allowed to be cleared up. I beg to move.

Lord Richard

I rise to support the amendment moved by the noble Lord, Lord Hutchinson. The fundamental point here is that a request for an offence to be taken into consideration is clearly different in law from a conviction, as the noble Lord said. It goes back to the case of Howard. Lord Justice Russell argued that issue at some length. During the course of his judgment he said that he wished to be able to hold that an offence which he had been asked to take into consideration was the same as a conviction, but he felt constrained not to do so. As he pointed out, the full circumstances of such an offence were not before the court; there was no disclosure of the prosecution case; full evidence had not been heard. In such circumstances it would surely be wrong to imprison an offender wholly or partly on the basis of an offence of which the court, by definition, had only partial knowledge.

I take the point also, and underline it, that it is likely to deter offenders from admitting offences to be taken into consideration, thereby damaging the efficacy of a valuable system which enables the police to clear up offences. The amendment proposed by the noble Lord, Lord Hutchinson, makes a powerful point and we support it.

Lord Harris of Greenwich

One measure of police efficiency is widely accepted—I am not sure sensibly —to be the percentage clear-up rate. It is the view of many that one way in which one can make a judgment on the efficiency of an individual police force is to take account of what that clear-up rate is. If we are moving to a situation in which, for the reasons given by my noble friend Lord Richard, defendants will be deterred from having offences taken into consideration, the consequences could be significant. I hope that the Government have considered the matter and discussed it with the Chief Inspector of Constabulary and others, who will certainly have a view on the question.

Earl Ferrers

It has long been the practice that, when people are convicted of an offence, they may ask the court, when passing sentence, to take into consideration other offences which they have committed. The system worked well. Everyone seems to have benefited.

The noble Lord, Lord Hutchinson, said that it enabled the police to clear up large numbers of offences. As the noble Lord, Lord Harris of Greenwich, rightly said, the percentage clear-up rate is an important statistic. It is one which helps the police and the inspectors of the constabulary to discover how successful they are in dealing with crime. The system saves the courts time by enabling offences which the offender is prepared to admit to be dealt with without further ado. It benefits the offender because, by asking for his other offences to be taken into consideration, he wipes his slate clean. Therefore, it has a great many advantages. The amendment would make it almost impossible to continue with that system and it would create a curious situation. A defendant might still ask for other offences to be taken into consideration when the court was sentencing him for the offence for which he had been convicted. However, the court would be unable to do so. Such an offence would not qualify as an associated offence and could not therefore be reflected in the sentence it passed. The offender would be able to admit previous offences but, having done so, the court would be unable to penalise him for them.

The noble Lord, Lord Hutchinson, said that it would deter offenders from admitting previous offences. I think that that is true. If so, that would be a disadvantage. It is entirely up to the offender whether he asks for other offences to be taken into consideration. No doubt he would refrain from doing so if he thought that it would be to his disadvantage. Where an offender actually asks for other offences to be taken into consideration it must be right that in deciding what sentence shall be appropriate the court should be able to weigh those offences in the same way that it weighs the offences of which the defendant has been convicted. When a court takes such offences into account it mitigates the penalty in view of the co-operation which the offender has shown in admitting the offences.

As the new clause introduced by government Amendment No. 71 makes clear, that will continue to be so under the Bill. I hope that the noble Lord, Lord Hutchinson, will agree that Amendment No. 71 is better as it is and that we should encourage the admission of offences by people who have been convicted and that they should be able to wipe the slate clean.

10.30 p.m.

Lord Hutchinson of Lullington

I wonder whether the noble Earl has understood the amendment. It is not a question of making it impossible to continue with the system or of courts being unable to take matters into consideration. Under paragraph (b) of Amendment No. 76, the court is enabled to pass a custodial sentence if the offence asked to be taken into consideration is used for that purpose. The only purpose of the amendment is to remove that particular facility. Courts will be able to continue to take matters into consideration whenever they wish to do so. This amendment does not touch that in any shape or form. Courts will go on taking matters into consideration. The point of the amendment is only to avoid the power of the courts to use such an offence in order to justify custody. Perhaps the noble Earl will give the matter further thought. In his reply it seemed that he had completely misunderstood the purpose of the amendment.

Earl Ferrers

I shall certainly consider and take into account what the noble Lord, Lord Hutchinson, said. If I have missed the purpose of the amendment I apologise to him. The provision applies not only to the decision on the use of custody but also to the length of custody. All the offences of which the offender has been convicted or has asked to be taken into account are dealt with. If the court had no power to reflect offences which the offender had asked to be taken into consideration in setting the length of sentence there would be no point in enabling the offender to ask for offences to be taken into consideration. As I understand it, that would be the effect of the noble Lord's amendment. If the noble Lord, Lord Hutchinson, says that I have got it wrong, I shall certainly look at the matter and see if I have. In that case I shall contact him.

Lord Hutchinson of Lullington

The noble Earl is most gracious. On that basis I have pleasure in withdrawing the amendment.

On Question, Amendment No. 76ZA, as an amendment to Amendment No. 76, by leave, withdrawn.

On Question, Amendment No. 76 agreed to.

Clause 25, as amended, agreed to.

Lord Nathan moved Amendment No.76A:

After Clause 25, insert the following new clause: ("The Life Sentences Review Tribunal

.—(1) There shall be a tribunal, to be known as the Life Sentences Review Tribunal ("the Tribunal"), for the purpose of exercising the functions conferred on it by this Part of this Act.

(2) Schedule (Life Sentences Review Tribunal) to this Act shall have effect with respect to the Tribunal.").

The noble Lord said: This amendment, together with Amendments Nos. 76B, 76C and indeed 77A, 77B and 77C, are linked or consequential to each other. The matters concerned in Amendments Nos. 76A, 76B and 76D constitute together a scheme under which a judicial process shall be applied to determining whether or not life prisoners shall be released. This was the subject of earlier debate. I can see no reason to discuss them further. I do not know whether it is in order for me to move Amendments Nos. 76A, 76B and 76D together. If it is not, I move Amendment No. 76A. I beg to move.

Lord Waddington

In an effort to help the Committee, which I imagine would not wish to divide at this hour, I invite the noble Lord, Lord Nathan, not to press this and succeeding amendments on the basis that, obviously, I have to and will consider the consequences of the earlier decisions of the Committee on Amendments Nos. 69ZA and 69A. I shall also consider these other amendments which we discussed at the same time and which—I agree with the noble Lord—are fairly closely linked with them. If, at the end of that consideration, the noble Lord is dissatisfied with anything I have to say, he will be able to return to these matters at a later stage.

Lord Nathan

I am grateful to the noble Lord the Leader of the House for that suggestion. When I opened my remarks in introducing Amendment No. 69ZA relating to the abolition of the mandatory life sentence, I referred to this as part of a scheme of things constituting the recommendations of the Select Committee. On the undertaking of the noble Lord the Leader of the House that he will consider these matters and on the clear understanding that we may come back to this matter, which we regard as an important element of the whole scheme put before the Committee, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 76B not moved.]

Lord Harris of Greenwich had given notice of his intention to move Amendment No. 76C:

After Clause 25, insert the following new clause: ("Tribunal to review life sentences in cases other than murder

.(1) There shall be a tribunal, to be known as the Life Sentences Review Tribunal ("the Tribunal"), for the purpose of exercising the powers of review of life sentences in cases other than murder.

(2) The Secretary of State shall refer the case of every life prisoner convicted of an offence other than murder to the Tribunal for review not later than two years before the expiry of the penal term applicable to his case.

(3) It shall be the duty of the Secretary of State to give effect to any directions given by the Tribunal in regard to a life prisoner whose case is referred to it under this section.

(4) In this section "penal term" means the sentence of imprisonment which the court is required by section (Court's duty on passing sentence of life imprisonment) to state in open court as being the sentence it would have passed if it had not passed a sentence of imprisonment for life.

(5) Schedule (Review of Life Sentences in Cases Other than Murder) and Schedule (Life Sentences Review Tribunal) to this Act shall have effect with respect to the Tribunal.").

The noble Lord said: I am grateful for what the Leader of the House said. He will realise that this issue involves the non-mandatory life sentence. He will know that many of us attach high priority to this question as well as to the other. It is part of a scheme. I do not propose to move the amendment for the reasons given by the noble Lord, Lord Nathan.

[Amendment No. 76C not moved.]

Clause 26 agreed to.

[Amendments Nos. 76D to 76F not moved.]

Schedule 4 agreed to.

Clause 27 [Duty to release short-term and long-term prisoners]:

On Question, Whether Clause 27 shall stand part of the Bill?

Lord Richard

I gave the Government notice that I wished to speak on Clause 27 stand part. Due to the lateness of the hour I shall not be lengthy in my remarks. However, I believe that this a convenient moment during the Bill's proceedings when one should perhaps look again at the possible results of the Government's proposed changes to the parole system.

I should tell the Committee that I am concerned about the effect of the decision to change the parole release point from one-third to one-half. I believe that it is likely to result in an increase in the prison population as prisoners would inevitably have to serve longer periods of imprisonment. That was clearly not the intention of the Carlisle Committee. I am delighted to see that the chairman of that committee is present in the Chamber.

The Carlisle Report makes quite clear that its proposals were designed to be accompanied by a change in sentencing levels to ensure that the actual time spent in custody was not increased. The report says: We believe that the new scheme which we have proposed … should provide the springboard for a thorough reassessment of present sentencing levels…It would be an unbalanced approach and add undesirably to the overall quantum of punishment to enhance the meaning of sentences in the way which we propose without at the same time working for a reduction in present tariffs".

A little later the report states: There is a risk that the disappearance of release at a third and the increased liabilities which we propose for the latter part of the sentence could add possibly substantially to the prison population".

Those are not my words; they are the words of the Carlisle Report. It continues: We have proposed the scheme … in the hope and expectation that it will be accompanied by the changes in sentencing practice which we wish to see".

The noble Lord, Lord Carlisle, made the point very clearly in a debate on 30th November 1988 when he said (at col. 318) that the changes, should be accompanied by a determined effort by the judiciary and those in politics to reduce the length of sentences that are being passed, particularly in the middle band".

I am concerned to note that this Bill does very little, if anything, to provide for the effective sentencing reforms which the Carlisle Committee and, indeed, the noble Lord, Lord Carlisle, felt would be necessary. It would be absurd if the effect of a change designed to rationalise parole ensured that prisoners who are currently deemed safe to be released on parole after having served one third of their sentence were now not to be released until the one half point had been reached. If that happened, the likely result would be an increase in the prison population. As I understand matters, that is something which we are all anxious to avoid. I should be grateful to hear the Government's views as to how they propose to avoid this particular danger.

Lord Carlisle of Bucklow

I was not aware that the noble Lord, Lord Richard, was intending to speak on Clause 27 stand part. At this late hour, I shall not make a lengthy defence of what we proposed in our report. I merely say to the noble Lord that the committee which I had the honour to chair carefully considered what was the appropriate proportion of a sentence which should be served in those short-sentence cases where it is proposed that when that sentence has been served the person concerned should automatically be released. We believed that to propose a system whereby a person should automatically be released after having served only one third of his sentence would have been unacceptable to the public. We believed that the right proposal was that a person should serve one half of the sentence imposed. That is why we made the recommendation.

I should also tell the noble Lord, Lord Richard, that we recognised that if in fact the sentences remained the same in length, and therefore people who are serving one third of their sentence at present then found themselves having to serve one half, it would mean that some people would spend longer in prison than is the case at present. It is right that we coupled our proposal that one half of a sentence should be served with a clear recommendation that it should be implemented and that, at the same time, a determined effort should be made to get down the length of sentences in that area of sentencing so as to reflect the effect of the proposals we made.

I believe that that was the right approach. I trust that Members of the Committee will forgive me if I do not attempt at this hour of night to expand further on the reasons which led us to that decision. I merely say to the noble Lord, Lord Richard, that we went most carefully into the matter and we believed that it was right to recommend automatic release for the one half point rather than the one third point of the sentence.

10.45 p.m.

Lord Harris of Greenwich

It is always tempting to begin a discussion on some aspects of the parole scheme, but this is rather late in the evening to do so. By and large I agree with the noble Lord, Lord Richard. It was one of the matters in Lord Carlisle's report about which I had some anxiety. It means that a number of people who represent no risk to the public will be kept in prison longer than is necessary. As the noble Lord said, while there is undoubtedly a risk, unless there is a change in sentencing practice in the courts there could be a substantial increase in the size of the prison population. I hope that will not take place.

The question that I should like to put to the noble Earl, Lord Ferrers—and I am not asking him to deal with this matter tonight; I should be happy to have a letter from him on this question—concerns a matter that does not appear in the Bill but which follows directly from the recommendations of the committee of the noble Lord, Lord Carlisle, and a recommendation that has been accepted by the Government. In future the reasons will be given why people have been denied parole. I have expressed my view on this on a number of occasions in the past, and I do not intend to repeat it this evening.

The matter that troubles me was dealt with in the noble Lord's report on this question, and it is whether a person making a statement to a probation officer —possibly a home probation officer—possibly the wife of a person in prison, or the girl friend of a wife of a man in prison—will be told by the probation officer that it is possible, or indeed likely, that what she says will be disclosed to the man in prison. This is a significant risk.

The noble Lord, Lord Carlisle, and his colleagues in their report, in supporting the idea of giving reasons, indicated that they too recognised that there was a risk so far as this was concerned. They said it would only apply in possibly a small number of cases, and that may be true, but this is undoubtedly a serious matter. If in fact something is disclosed in a home circumstances report to a man who has a record of considerable violence in his past criminal record, the persons concerned could inadvertently be putting themselves at risk in the future.

What I want to know is what arrangements are being made for the probation service and anybody else who may be concerned to tell those concerned that there will be full disclosure to the inmate. I have put the matter as clearly as I can, and I should be grateful if the noble Earl could deal with it in correspondence. The matter does not appear on the face of the Bill, but as the Government have said that they have accepted this recommendation I assume that it will be implemented by some form of administrative arrangement.

Earl Ferrers

With regard to that last question of the noble Lord, Lord Harris, I shall certainly look into it. He has identified an important issue that we shall have to consider as we move towards openness in the parole system. I should like to take up the noble Lord's offer to consider it and write to him about it.

The noble Lord, Lord Richard, was concerned about prisoners being released after half the sentence, and he thought that they ought to be released after a third. We had the advantage of my noble friend Lord Carlisle of Bucklow who actually produced the report, and I think he said almost everything that I could have said, and a great deal better too. The noble Lord shakes his head.

Lord Richard

I obviously did not make myself clear. The point I was making was that under the new proposals there is a great danger of an increase in the prison population. As the Carlisle Report said, that must be balanced by a change in sentencing practice. I was asking the Government what steps they were taking to ensure that the changes in sentencing practice take place and that there is not an increase.

Earl Ferrers

I was coming to that. If we look at the straightforward calculations, if a person spent one-third of the time in prison and he will now spend one-half of the time in prison, the chances are that one might expect the prison population to increase. However, I do not believe it is as simple as that. The majority of prisoners will be released after serving half their sentences. At present some are released earlier because they get parole, others are released later because they do not get parole. We believe that the effect of the provisions on the prison population should be broadly neutral. There may be an increase in the prison population because prisoners will be liable to be returned to prison under Clause 33 on conviction of a further imprisonable offence.

However, the view of my noble friend's committee, which we share, is that by restoring meaning to the sentence passed, the proposals would justify a reduction in the average length of sentence which would offset this. I have no doubt that the magistrates and judges will note what my noble friend's committee said and take it into consideration when they pass sentence.

I can understand the concern of the noble Lord, Lord Richard, but it is difficult to look forward to the future and guess what will happen. We believe that the effect will be fairly neutral, but one can never guarantee that.

Clause 27 agreed to.

Lord Reay

I beg to move that the House do now resume.

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

House resumed.

House adjourned at nine minutes before eleven o'clock.