HL Deb 26 March 1991 vol 527 cc986-1021

5.5 p.m.

House again in Committee.

Clause 1 [Restrictions on imposing custodial sentences]:

Lord Hutchinson of Lullington moved Amendment No. 3:

Page 1, line 11, leave out paragraph (b).

The noble Lord said: In moving this amendment I shall speak at the same time to Amendment No. 7A. I suggest that this amendment is as important as any that the Committee will consider during the passage of the Bill. Part I of the Bill introduces a new framework for the sentencing of offenders. In Clauses 5 to 14 it introduces what are to be called "community sentences". The courts are to be encouraged to impose restrictions on the liberty of offenders, within the community wherever possible, rather than within the negative, corrupting and degrading atmosphere to be found within prisons.

To make this framework successful conditions are set out in Clause 1(2) and (4) which must be met by the courts before imposing a custodial sentence. These criteria are based on very similar criteria which have so successfully governed the sentencing of young persons since 1982. Further conditions are set out in Clause 2(2) and (3) governing the length of the sentence to be imposed. In that way a statutory discipline is imposed for the first time on the courts which will, it is hoped, at long last prevent inappropriate custodial sentences being passed. The measure will also give assistance to everyone involved in the appeal procedure to decide whether the sentencing court's reasoning was or was not acceptable.

In addition to those criteria, in Clause 3 clear, procedural requirements are spelt out which the courts must observe before imposing custody, obtaining pre-trial reports and the like. So in that way here we have a clear, straightforward framework. For reasons which have not been made clear so far and which receive no mention in the Notes on Clauses, these criteria, on which the success of this part of the Bill very largely depends, are not to apply to offenders, as far as custody is concerned, committing offences triable only on indictment if anywhere in their record there has been a sentence of imprisonment, the sentence of imprisonment not having to be for the same type of offence and having no time limit of any kind. As regards length of sentence the criteria are not to apply to any offender committing any indictable offence of any kind.

It means that as regards the more serious offences, senior judges may impose custody when the seriousness of the particular offence does not justify it or for a longer period than is adequate for the protection of the public, and they may do so without either any duty to state in open court the reasons for the course which they are taking or any necessity to obtain pre-sentence reports.

Furthermore, in such cases the essential information will not necessarily be available to the court on appeal, although it is in respect of these more serious offences and longer sentences that appeals are most likely to be launched and it is such cases which will cause most concern to all those who are involved in them. At Second Reading I quoted passages from the White Paper and from the Carlisle and Woolf Reports, all emphasising the vital importance of courts reducing the length of sentences, as the Carlisle Report said, "at all levels". As Members of the Committee will know, two Select Committee reports, the expenditure committee report and the All-Party Penal Affairs Group have said the same thing on numerous occasions.

It is accepted officially that our sentencing level in the United Kingdom is the highest in Europe. Statistics show that a higher percentage of men convicted of indictable offences are sent to prison, for longer terms, than was the case 10 years ago. Strangeways prison contained 630 prisoners over and above the certified complement when it erupted. Each of those was costing the taxpayer more than£300 a week to be there: and more than half of them would be reconvicted within two years—a wholly counter-productive operation. If this situation is ever to be remedied—one of the main purposes of Part I of the Bill—these clear criteria must surely apply in every criminal court to all offences and must be observed by all judges, not just magistrates, circuit judges and recorders. Above all, the criteria must apply to all classes of crime. If that is not the case the recommendations of Carlisle and Woolf will simply be frustrated.

There is a very general misconception, which was expressed at Second Reading by the noble Lord, Lord Campbell of Alloway, who I am sorry to say is not in his place, that it is the magistrates and not the judges who fill up the prisons. The most recent Home Office figures that I have show that at any one time 45 per cent. of those sentenced to immediate custody come from the magistrates' courts and 53 per cent. come from the Crown Courts. Because of the shorter sentences coming straight from the magistrates' courts at any one time 88 per cent. of the prison population comes from the Crown Courts and only 10 per cent. from the magistrates' courts. Moreover, the average sentence length in the magistrates' courts has decreased, whereas in the Crown Courts it has increased. It is in the Crown Courts that the statutory disciplines are all important.

Indictable offences cover a wide spectrum and in many of these community sentences will be entirely appropriate even though the class of offence is a serious one. According to Home Office statistics, in recent years an average of 25 per cent. of those convicted of indictable-only offences received non-custodial sentences, all of which will now become community sentences. The judges imposing them will all be subject to the equivalent disciplines set out in Clause 5. Surely it is even more important that these same judges should be subject to the equivalent disciplines when imposing terms of imprisonment. It is all the more important that they should call for pre-trial reports and should express publicly their reasons for the sentences they impose.

Finally, excluding indictable-only offences will lead to innumerable anomalies, as excluding classes of offence always does. For instance, criteria will be applicable to theft but they will not be applicable to conspiracy to steal. They will be applicable to sexual intercourse offences with a girl of 12, but not with a girl of 13. Bank robbery is covered, but so is pick-pocketing in the Underground. The only reason given in another place for excepting senior judges from these obligations was that it would be an unnecessary burden to impose upon them, when everyone could see that a prison sentence was inevitable, to ask them to go through these hoops, as it was put by Mr. Patten. I can only say that, on a matter of such fundamental importance, the convenience of the senior judiciary cannot be a good reason for undermining the very basis of this Bill and putting its success in jeopardy.

It was also said that there was nothing to stop every court calling for reports and following the procedures in Clause 3. That is true, but the reason for having Clauses 1 and 2 in the Bill is that the judges simply do not follow similar policies and that some form of statutory discipline has now become essential.

If a previous sentence of imprisonment is to be enshrined in the Bill as a reason for removing the need to apply the criteria, the mischief of imposing unnecessary custodial sentences will leave its mark on the system for years to come. These amendments seek to remove that possibility, remove the exceptions and ensure that the Bill makes a fresh start right across the board. I am sure that the Committee will want to hear how these exceptions came to be in the Bill in order to decide whether their inclusion justifies the damage that will follow. I beg to move.

5.15 p.m.

Lord Richard

I am happy to join the noble Lord, Lord Hutchinson of Lullington, in proposing these amendments. As I understand it, we are now considering Amendments Nos. 3 and 7A and not, at this stage, Amendment No. 11. I think that is right.

This amendment would extend the criteria governing the use of custodial sentences to offences triable only on indictment. It is a fairly simple and short point to state, but, like my noble friend Lord Hutchinson, we are waiting for some justification from the Government as to why the Bill has been drafted in this way.

The basic argument for the criteria in Clause 1, as I understand it, is that having to give reasons to justify a custodial sentence on grounds relating to the seriousness of the offence or the need to protect the public from serious harm is a valuable discipline which should help to reduce the likelihood of inappropriate custodial sentences in the future. That is the object of the exercise. A subsidiary argument, but also an important one, is that if there is a subsequent appeal against the sentence then the existence of a statement of reasons helps everyone involved in the process to decide whether the reasoning of the sentencing court was acceptable. If that is right—it certainly seems to be the purpose behind the Bill—those arguments surely apply just as much to custodial sentences imposed for indictable-only offences as they do to custodial sentences imposed for summary and either way offences. There is no logical distinction that I can see between the two.

As my noble friend pointed out, many indictable-only offences cover a very wide spectrum in some of which—it is interesting to look at the way in which they have been dealt with in the past—a community penalty is entirely appropriate. Robbery is a good example. Robbery ranges from armed robbery to offences in which the degree of force is relatively slight and the amount stolen is small. In recent years about one-quarter of offenders convicted of offences triable only on indictment in England and Wales have actually been given non-custodial or suspended sentences. Therefore, if the statutory criteria do not apply in indictable-only cases, the discipline of applying them would not be present in many cases where at the end of the day a community penalty is a realistic possibility.

It is true that the exclusion of indictable-only cases from the criteria leads to some highly artificial distinctions. Moreover, the Bill applies the criteria to offenders convicted of indictable-only offences who have not previously served a sentence of imprisonment as an adult. That produces an anomaly. An offender sentenced to detention in a young offenders' institution for a serious robbery at the age of 20 would have to satisfy the criteria for custody if charged with another robbery as an adult.

On the other hand, an offender who served 14 days' imprisonment for a minor offence when aged 21, who subsequently stayed out of trouble for 40 years but was then convicted for a minor role in a robbery when he was in his sixties, would not be subject to those criteria. It is almost impossible to justify that kind of anomaly. The best way to avoid such anomalies must surely be to apply the criteria to all indictable only offences.

In Standing Committee in another place on 29th November 1990, when a similar amendment was under discussion, Mr. Patten said: We are trying to give guidance to judges about the way that Parliament will seek, in future, to see sentences handed down, but not to go so far as to make a judge sit up straight and say. 'This is ridiculous. Why should I have to give a reason for sentencing someone who has just committed a dreadful aggravated burglary or a rape? Why should I have to go through the hoops and say in open court why this man, or more rarely, this woman, should get an immediate custodial sentence?'

All the judge would have to do to satisfy the criteria in such serious cases is to say that the offence was so serious that only a custodial sentence could be justified. I should have thought that that was hardly likely to place a serious burden on the courts. Indeed, it seems a very small price to pay for the benefit of applying the discipline of the criteria to other indictable only cases where a non-custodial sentence is a realistic possibility. Finally, the ultimate illogicality—it seems to me—of the present proposal by the Government is that criteria for custodial sentences similar to those in Clause 1 have applied to the use of custodial sentences for young offenders under the age of 21 since 1983. They have applied to all custodial sentences for young people, including offences triable only on indictment. That does not appear to have given rise to any difficulty in the courts. Therefore, for the life of me, I do not see what difference it makes in principle whether the individual is under or over the age of 21. If the system has operated perfectly well for young people since 1983, we submit to the Committee that it can operate perfectly well now.

Lord Henderson of Brompton

My name is also attached to the amendment. However, there is hardly any need to add to what has been said to justify what is proposed. It is clear from what has been said that the onus is on the Government to justify exceptions from the general rule, which we were all expected to believe would take place. As has been said, the 1982 Act, which I suppose came into force in 1983, applied across the board to young people. We were led to believe at that time that that provision would ultimately be extended to all offenders irrespective of age.

During consideration of what became the 1988 Criminal Justice Act, 1 attempted to extend the provision to cover the ages above that of juveniles. I was told that the experiment with juveniles had to continue before any extension could be considered to cover adults. When it was extended to adults, I thought, as did many others, that it would he extended across the hoard. However, that does not appear to be the case. We very much want to know the reason why this is so.

Part I of the Bill is a good measure and long anticipated. I am most grateful to the Government for bringing it before Parliament. However, I cannot understand why offences on indictment should be excluded from the provisions of this part of the Bill. As I said, the Bill is long overdue and, as the noble Lord, Lord Hutchinson, pointed out, it will inevitably give rise to anomalies. I cannot see any reason for excluding indictable offences, except possibly the amour proper of the power of the judiciary.

I do not think that it is infra dig for the higher judiciary to have to state clearly when the only possible sentence for an offence is custody. I do not see why the judge should not be compelled by an Act of Parliament to say those few words. All he needs to say is that the offence is so serious that only a custodial sentence can be justified. That will not impose any great hardship on the higher judiciary, especially as we know that at present one-quarter of the offences on indictment are dealt with by way of non-custodial sentences. It means that in something like three-quarters of the disposals with which the High Court deals those words will need to be said. As I said, I cannot believe that that will he a great hardship. That seems to me to be the only reason for the current restriction. However, if the noble Earl can give me any other reason for the present situation, I shall be most interested to hear it. I support the amendments.

Earl Ferrers

Amendments Nos. 3 and 7A would extend the restrictions on the use of custody in Clauses 1 and 2 of the Bill and the associated procedural requirements in Clause 3 to all indictable-only offences except those where the penalty is fixed by law—that is, in the case of murder or high treason. Included would be people convicted of indictable-only offences who have previously served sentences of imprisonment.

Members of the Committee have argued that we should not draw a distinction according to the type of offence. I do not agree. Offices which are triable only on indictment are serious offences. In 1989, 78 per cent. of adult offenders sentenced for such offences had committed violent or sexual offences, or robbery. Some of these offences will he more serious than others. But there can usually be little doubt that an offence such as robbery or rape properly deserves a custodial sentence—and quite probably a long sentence. Current sentencing patterns reflect this view. In 1989, 76 per cent. of adults sentenced for an indictable-only offence were sentenced to immediate imprisonment. Moreover, in many cases, the sentences received were long; 70 per cent. of sentences for rape, for example, being in excess of five years. For those kinds of offences, imposing the kinds of restrictions on the use of custody and the procedural requirements set out in Clauses 1 and 3 for every case would, I suggest, pose an unnecessary and an unhelpful burden on the court and on the probation service which would have to provide the reports.

There is already a good deal of clear Court of Appeal guidance about sentencing for such offences; for example, Regina v. Billam in 1986. In that case the Court of Appeal gave firm and clear guidance on the appropriate sentence for rape and the factors which might aggravate such an offence. I see that the noble Lord, Lord Hutchinson, wishes to intervene. I am happy for him to do so.

Lord Hutchinson of Lullington

I am most grateful. Is the noble Earl seriously saying that when there is the possibility of the imposition of a lengthy sentence—that is, one of perhaps two, six, eight or 10 years' duration—the judge should not obtain a pre-trial report and that he should not discover everything he can about the accused, and about the offence, in order to decide on the length of the sentence?

Earl Ferrers

I believe that the majority of judges already do so. It is inconceivable that judges do not take into account every conceivable matter relevant to the case. However, as matters stand, they can require a report to be made. The point is that they will not be obliged to do so in every case. I have no doubt that where the court considered the case to be borderline—that is, as between imposing a custodial or community penalty—it would indeed ask for such reports to be made.

It could be argued that indictable only offences should be excluded from the new sentencing framework. There are already restrictions on imposing custody upon young offenders and those who have not previously served a term of imprisonment even if the offence is triable on indictment only. We believe that it is right to ask the courts to think carefully before imposing custody in such cases. It would be wrong to require Crown Courts to follow the detailed procedures set out in Clauses 1 and 3 in every case. We are referring to those convicted of an offence triable only in the Crown Court and who have served a previous term of imprisonment. Those are the worst cases. It would be wrong to make all those cases subject to the same provisions.

5.30 p.m.

Lord Donaldson of Kingsbridge

Before the Minister sits down, he quoted the figure of 74 per cent. for one of the years in respect of those who served long custodial sentences. That means that 26 per cent. did not. That means that in one in four cases the judges, by the proper procedures—it has nothing to do with the Bill—were obliged to make such an inquiry before they decided not to impose a custodial sentence. It is inconceivable that anyone should seriously say that we cannot ask the judges to announce that it is a matter that has been dealt with. We must try to obtain a better explanation.

Earl Ferrers

The noble Lord, Lord Donaldson, will be well aware that when people are tried the judge will make every conceivable effort to reach the right conclusion. In the Bill we say that those who are tried summarily, or either way, or on indictment only, but who have not yet served a prison sentence, should be subjected to the restrictions to ensure that fewer people go to prison.

It is unreasonable to say that a Crown Court judge should be obliged on every occasion to go to the trouble of asking for reports from the probation service and others for those who have been to court previously. The judge may wish to do so, but it is unnecessary to impose an obligation upon him to do so in those cases.

Lord Elton

My noble friend seems to object, in particular, to what may be thought to be elaborate procedures set out in Clause 3 being applied to the type of offender described in the passage that the amendment seeks to remove from the Bill. It would be helpful if he would tell us whether he objects to the judge being required to make the considerations required in Clause 1(2) (a); that is, to arrive at an opinion: that the offence, or the combination of the offence and one other offence associated with it, was so serious that only such a sentence can be justified

and so forth. It sounds as if he would be content for the judge to form an opinion, as it were, prima facie, because the offence itself and the preceding offence were so serious. In other words, is he seeking to avoid placing an administrative burden on the judiciary as opposed to avoiding judicial consideration? Perhaps the Committee will forgive me for floundering over terminology with which once again I have become unfamiliar.

In Clause 3 there is a peculiarity which I should like my noble friend to clarify. I apologise to him for not signalling my intention to ask this question by tabling an amendment. I was overtaken by events. In subsections (2) and (3), we find that the court may consider the relevant circumstances of previous offences, but is precluded from considering any response to previous sentences. Those of us who work directly or indirectly with offenders are closely interested in how they react to sentences. It seems, to me at least, a bit like telling a doctor that he may consider that the patient has had a disease in the past but may not consider what response he has made to the treatment he was given for that disease.

I am making this point slowly so that my noble friend may be sustained by the usual supply of wisdom from the usual quarter if it is not already resident in his impressive cranium. I believe that I have made the point clear, and I hope that my noble friend will be able to answer the question.

Earl Ferrers

I shall answer those two questions as best I can. My noble friend generously said that he was floundering when he asked his first question. His floundering caused me to flounder in comprehension. I should like to consider the question he asked so that I can understand what he is getting at. I am prepared to consider the point.

With regard to my noble friend's point about the treatment for the disease, we are concerned with those who have already served a period of imprisonment. It is important to consider that people have been sentenced and spent time in prison rather than necessarily to discover how they reacted when they were in prison.

Viscount Bledisloe

The noble Lord, Lord Elton, mentioned a point that I confess also puzzled me. As I understand it, the proposers of the amendment suggest that the only consequence of deleting paragraph (b) is that the courts will then have to go through what have been described as the hoops and give reasons for imposing custody, if they do. As I understand it, subsection (2) debars the court from considering a man's previous record except in so far as one other offence is concerned—it is associated with the offence in question. From subsection (8) we see that that means an offence for which he is convicted or sentenced at the same time.

If the amendment is accepted, a court would be debarred from saying, "You have a record as long as my arm; you have been to prison 14 times before, but I cannot take that into account when deciding whether or not to pass a custodial sentence upon you". That is a rather more important change than ensuring that a judge utters certain ritual words before he passes the inevitable sentence of imprisonment upon a serious rapist. I may have misunderstood. If I have not, surely the amendment goes much too far if it means that no regard can be had to the previous convictions of someone tried on indictment when deciding whether he is to go to prison.

Earl Ferrers

We are trying to say to those people who fall within the lower categories—those who are tried summarily, either way or on indictment—that they will be subjected to the provisions of Clause 3 to ensure that they go to prison, only if that is the correct course for them. The courts have to go through the other hoops to keep them out of prison. If the amendment were to be accepted, that would also apply to those who have committed an offence which is only triable in the Crown Court and to those prisoners who have already been subjected to a prison sentence. They are therefore the worst types of offenders. Those people who, the noble Viscount said, had sentences as long as their arm and who had been in before would be excluded from the restrictions which are placed on court sentencing for other offenders. If the amendment were included, the courts would be subject to those restrictions. That would be correct because those are the people who committed the worst offences.

Lord Hutchinson of Lullington

I am a little shocked by the noble Earl's reply. He has not seen fit to tell us how this exception came into the Bill. It is perfectly clear from what he said that it is simply for the convenience of the senior judiciary. No doubt all Members of the Committee will draw the conclusion that it is clearly part of a package deal in regard to Clauses 1 and 2.

Earl Ferrers

Perhaps I may interrupt the noble Lord. I feel he is going a bit over the top to say that it is just for the convenience of the judiciary and that it is a package deal. It is nothing of the kind. I have tried to explain more than once the reasoning. It is that those people have been convicted of the most serious offences and have already spent a period in prison. For them, we say that it is not right to impose on the judge that there should be a report in all cases. There may well be cases where the judge will want a report.

Lord Hutchinson of Lullington

The question before the Committee is whether or not the criterion that the sentence passed must be commensurate with the seriousness of the offence should apply to all judges when passing any sentence.

There is no possible explanation of why some judges, for some offences, should not be subject to that criterion. No reasoned argument has been put forward as to why a judge, faced with whether he should impose two, three, six, 10 or 20 years, should not have to face the criterion. A sentence commensurate with the seriousness of the offence is the question that will have to be decided.

The amendment states that that criterion should apply to all judges in all sentences. The fact that 25 per cent. of non-indictable offenders are not given custodial sentences indicates a large swathe of offences where the judge must consider whether there should be a custodial sentence. In 25 per cent. of the cases he decides not. He must have been considering it in a great many more cases.

Another point is that over and over again imaginative sentencing means sometimes breaking the pattern for an offender who has continually offended. Anyone who has been involved in sentencing knows that there are moments in the career of any criminal or any person who has committed offences where, through some change in their lifestyle, their age or for some other reason, it is suddenly not worth repeating the custodial ladder. A judge passing sentence, besides having to consider information received, must also take account of the criterion of having to pause to consider what is necessary in a certain case and whether the sentence is commensurate with what a man or woman has done. It is essential that this should happen across the board.

The noble Earl said that the judge would go to every possible length to obtain the proper information in any case. The trouble is that extremely long sentences out of proportion with the offence have largely arisen because some judges are pressed for time and deal with a great many pleas of guilty on one day in a senior court. They do not pause sufficiently to consider the information before the court. Nor do they ask for information as they should.

As the noble Earl said, the current pattern reflects the use of long sentences. The Bill is all about that current pattern. Clauses 1 and 2 seek for the first time, through parliamentary intervention, to change that pattern at long last. That is why it is so important that the criteria should apply right across the board.

Perhaps I may say to the noble Viscount, who raised the relevant matter of previous convictions, that the question will arise later when we come to the amendments involving that subject. I do not believe that it should enter our decision on this amendment.

5.45 p.m.

Viscount Bledisloe

Before the noble Lord continues, does he accept that the effect of his amendment would be that no court could in any circumstances have regard to someone's previous record, however ghastly, in deciding whether or not to send him to prison?

Lord Hutchinson of Lullington

No, I do not accept that. It will be a matter for argument later when we explain why that is not so. I agree that it may well be so in many cases, but not all. It may be so as the Bill is drafted but perhaps it will be drafted differently by the time we finish.

Lord Elton

Since the noble Lord has already been interrupted, perhaps he could give his reaction to the point I tried to make. It is that there may be two categories and not one here. He includes all categories. By disapplying Clause 1(1) (b) he also disapplies the operation of Clause 3 which concerns the procedures that must be gone through by the judge in the process of carrying out Clause 1(1) (b). Would the noble Lord find it attractive to abandon that and to disapply only the Clause 3 procedures in what my noble friend would call obvious cases? That would save an enormous amount of time and administrative expense.

Lord Hutchinson of Lullington

I entirely understand what the noble Lord said. He is absolutely right in demonstrating that there are two different points in the procedure where the criteria apply. The first is the one to which I referred of whether the sentence is commensurate with the seriousness of the offence criterion. It is vital that that should be followed. Clause 3 involves the administrative pre-trial details, the paper work and so on.

I see that it may be possible at a later stage in the Bill's progress to insert an arrangement whereby, if both parties, the prosecution and defence, agree that there is no need to follow the procedures in Clause 3, one does not follow them. That may be a way out of the problem. However, I could not possibly go so far as the noble Lord suggested and say that there was no necessity for the senior judge to follow the Clause 3 procedures. With the agreement of the other side—the defence—it may well be so, but not otherwise.

I feel inclined to divide the Committee on the matter because it is of such importance. However, having regard to the time, it may well be wiser in the circumstances for the situation to be understood by more noble Lords than are present in the Chamber at the moment. In view of the great importance of the matter I shall return to it at a later stage. For the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Richard moved Amendment No. 4:

Page 1, line 21, at end insert: ("( ) A court may deem that an offence is serious if that offence involves violence, robbery, arson, drug trafficking or a sexual offence.").

The noble Lord said: I have a query on a procedural matter. I wonder what will now happen to Amendment No. 11. As I understood the position, Amendment No. 1 I had originally been grouped with two amendments we have just been considering as it covers a similar point. Amendment No. 3 extended the criteria to offences triable only on indictment. Amendment No. 11 extended the criteria to pre-sentence reports for offences triable only on indictment.

Earl Ferrers

I also thought that that amendment would be discussed with the amendments we have just dealt with. I did not intervene to suggest that we should follow that course because I thought that the noble Lord, Lord Hutchinson, had for some reason decided to speak to only two amendments. It appears to me obvious that Amendment No. 11 is connected with the other two amendments, but it is up to the person in whose name the amendment is tabled to decide what to do in this matter.

Lord Hutchinson of Lullington

Amendment No. 11 stands in my name.

Earl Ferrers

As that amendment has not been spoken to, it can always be debated when it is called. However, I hope that for the convenience of the Committee the same arguments will not be rehearsed all over again.

Lord Hutchinson of Lullington

As I understand the position, if the amendments in the name of the noble Earl are accepted, Amendment No. 11 will not be called. If Amendment No. 10 in the name of the noble Earl, Lord Ferrers, is accepted Amendment No. 11 will fall, and in that case I shall be perfectly prepared to withdraw Amendment No. 11.

Lord Richard

I am obliged for that explanation. Amendment No. 4 is a probing amendment. The amendment seeks to insert the following words at the end of Clause 1(2) (b): A court may deem that an offence is serious if that offence involves violence, robbery, arson, drug trafficking or a sexual offence

The amendment is perhaps not the most felicitously drafted measure one could devise. However, the object of the exercise is simple. The Bill proposes that a person shall not be gaoled unless the offence he has committed is serious, so it would be nice to be told what offences will be deemed to he serious. The Bill does not define "serious". That will lead to inconsistent interpretation, judicial confusion and even further regional variation in the use of custodial sentences. The clause, somewhat roughly, attempts to offer the judiciary some guidance on the circumstances in which it may wish to deem an offence serious. It is, however, worth noting that approximately half of all persons who have been gaoled did not commit an offence that came into any of the categories mentioned in the amendment. The main objective of the amendment is to discover whether the Government have a definition in mind for "serious" and, if so, what that definition is. I beg to move.

Earl Ferrers

Clause 1(2) (a), as currently drafted, prevents the courts imposing a custodial sentence unless the offence was so serious that no lesser disposal would do. We have left it to the courts to decide in each particular case whether the offence is serious enough for a custodial sentence. We do not think it right to spell out the provision. That is because the circumstances of each case vary. Depending on the circumstances, for example, some sexual offences may be serious and others may not. In exercising their discretion the courts will benefit from the guidance given by the Court of Appeal.

This amendment would qualify Clause 1(2) (a). If it is simply intended to provide guidance on what types of offence might be serious enough to justify a custodial sentence 1 do not think it is needed. The courts do not need to be told that violent offences or drug trafficking may be serious offences for which they might consider imposing a custodial sentence. On the other hand, the amendment might be intended to restrict further the courts' use of custody under Clause 1. Not only would the offence have to be serious enough for a custodial sentence, it would also have to fall within the range of offences listed in the amendment.

The noble Lord, Lord Richard, was kind enough to say that his amendment was not felicitously drafted. The problem is that it omits a number of offences for which the courts might justifiably want to impose a custodial sentence. The amendment omits to mention a domestic burglary where the victim's home was systematically wrecked by a gang of professionals who stole items worth many thousands of pounds in value. It omits to mention large scale fraud or financial wrongdoing, as in the Guinness case. I am certain that the noble Lord did not intend to exclude such offences. Obviously the courts would have to pass prison sentences for those kinds of offences. We believe it is right not to spell out exactly what constitutes a serious offence but to leave that decision to the sound judgment of the courts.

Lord Richard

I am not impressed with that reply as this is a matter which is bound to cause a certain amount of judicial confusion. The courts and judges will have to determine what is or is not serious. I should have thought some guidance from the Government or from Parliament in this Bill would have been helpful. However, it appears that not much guidance or help will be forthcoming. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Richard moved Amendment No. 4A:

Page 1, line 21, at end insert:

("( ) An offence shall not be regarded more serious by reason of any previous convictions of the offender or any response of his to previous sentences".).

The noble Lord said: This is a paving amendment to Amendments Nos. 15 and 16 and it may be for the convenience of the Committee if I speak to the three amendments together. If certain amendments tabled by the Government are accepted a provision in Clause 3 will be deleted. However, it reappears in an identical form in another part of the Bill. As I understand the position, that provision is now relevant to Government Amendment No. 72. At this stage I shall speak to Amendments Nos. 15 and 16 on the basis of the Bill as it is currently drafted.

The object of these amendments is to delete the provision enabling the courts to consider the circumstances of previous offences when assessing the seriousness of the current offence. It is worth noting that the Government have drafted the provision in that fashion. They believe the relevance of previous offences lies in the assessment of the seriousness of a current offence. That is an exercise of judicial determinism that I find hard to follow. As I see the position, the Government are saying to a judge, "You cannot consider the circumstances of previous offences in terms of the sentence you are going to pass, but on the other hand you can consider the circumstances of previous offences when you are assessing whether or not the current offence is serious enough for you to pass a sentence". To put it mildly, that seems a somewhat artificial situation.

For the most part the criteria for custodial sentences contained in the Bill emphasise the need to match sentences to the seriousness of the offence rather than to the offender's previous record. That is fine so far. I understand that policy. Home Office Research Study No. 103,Sentencing Practice in the Crown Court(1988), found that in cases of theft where the value of the goods stolen was under£200, 39 per cent. of offenders received immediate prison sentences. That is a staggering statistic. In such cases imprisonment is often a response to persistent petty offending in the past. It cannot be justified by the gravity of the offence for which the judge is supposedly sentencing. As the White Paper put it, injustice is more likely if courts do not focus on the seriousness of the offence before them when they sentence.

Clause 3(3) of the Bill, which the amendments would delete, modifies that principle by stipulating that courts can take into account the circumstances of previous offences in so far as they are relevant to forming an opinion as to the seriousness of the current offence. An example of that, which was cited by Mr. Patten when the Bill was in Committee in the other place, might be when the circumstances of previous offences helped the court to conclude that a burglary for which it was sentencing was a calculated, premeditated and professional offence as opposed to an opportunist one committed on the spur of the moment.

I suggest to the Committee that subsection (3) is not necessary in order to achieve that result. Courts could, in any case, legitimately sentence more heavily for calculated, professional offences under the criteria which already exist in Clauses 1 and 2, which deal with the seriousness of the offence.

Since the Bill was published it has become clear that many magistrates, Members of Parliament, journalists and others—including some peers, myself among them—find the distinction between subsections (2) and (3) confusing and difficult to grasp. We give the Government credit for good intentions to the extent that we do not believe that subsection (3) is intended to allow courts to increase sentences simply because the offender has a previous record. However, there is a very serious risk that that is precisely how it will be interpreted in practice by some judges and many magistrates. If that is so it undermines the aim of restricting custodial sentences to serious cases. Because of that risk—dare I say that serious risk?—in our view subsection (3) should be removed from the Bill. That is what the amendments seek to achieve. I beg to move.

6 p.m.

Lord Hutchinson of Lullington

I support the amendments. I agree with what the noble Lord, Lord Richard, said about the problem of the two subsections and that the Bill would be far better without subsection (3).

As I understand it, the intention is that the courts should observe the principle that if the offender has already been punished for an offence it is unfair and unjust to punish him twice over by increasing the penalty for the subsequent offence. Lesser offenders should not be imprisoned because they have done the same thing before. Persistent lesser offenders should, as far as possible, be dealt with in the community.

The Bill is trying to remove what might be called the ladder principle which at present is built into the way in which judges approach the persistent offender. Community sentences are tried, fines are tried, and so on all the way up the ladder until the judge says that everything has been tried and the offender must now go to prison. Subsequently when somebody comes before the court again the court finds no difficulty in saying that he must go to prison again. There is no problem at the moment in repeatedly sentencing offenders to prison. The Bill is intended to ensure that, for a change, repeated sentences should be imposed which are not prison sentences. Courts should appreciate that for people who offend continually it may be far better to deal with them by means of repeated sentences in the community and that additional offences should not make the instant offence more serious because of what has happened previously.

That would produce a completely different attitude to sentencing, one which has to be instilled into the judiciary and into the magistracy. They should not necessarily follow the ladder principle. They should be prepared to impose community service orders more than once. There is nothing wrong in doing that two, three, four or five times. That is no more wrong than imposing a short term of imprisonment two, three, four or five times. It is likely that the imposition of custodial sentences will be totally destructive and non-productive. There is a good chance that the imposition of community sentences will have the desired result. One has to have patience and it may succeed.

That is the purpose of the proposed subsection. It is intended to try to alter that approach, which at present is built into the judicial system. Therefore, I wholeheartedly support the amendment.

Earl Ferrers

I understand the anxieties which the noble Lords, Lord Richard and Lord Hutchinson of Lullington, have expressed. In principle there is not a great deal between us. The new sentencing provisions in the Bill require the courts, in passing sentence, to concentrate on the offence or offences immediately before them. That must be right. They do not allow the courts to take account of an offender's previous convictions when determining the seriousness of an offence except to the limited extent provided in Clauses 3(3) and 6(4), or any responses to his previous sentences.

Perhaps I may explain why we have included those subsections in the Bill. The noble Lord, Lord Richard, gave the Government a very generous accolade, saying that he thought that the Government were trying to do the right thing. That came as nectar, coming from the noble Lord. The provisions are not intended to allow sentencing on the basis of record to creep in by the back door. They are intended to provide for those particular cases—and not to go further than that—where the instant offence may legitimately be regarded as more serious by virtue of something in the offender's past. I accept that that is a delicate area. For example, there is a great deal of difference between an opportunist burglar, who tries a back window on impulse, finds it open, and steals something, and someone whose previous offending of a similar character shows him to be someone who offends in a systematic and premeditated way.

Another example is the shopkeeper who sells bad food, and who makes the excuse that it was an oversight because he did not check his stock carefully enough. The first time, or perhaps even the second time, the court might accept that; but what if it is the tenth time? Are we really to say that the court cannot look at the circumstances of the previous nine offences and conclude that the offender is guilty not of an oversight but of a deliberate and sustained disregard of the law and of the public's safety?

I give one more example. An offence of criminal damage against property in a particular area, which formed part of a pattern of such offences, might rightly be regarded as more serious if all the offences had been against the property of members of the ethnic minorities, showing them to be racially motivated.

It is important to note that the circumstances of previous offences must be relevant to the seriousness of the current offence before that can be taken into account. Previous offences of a completely different character would be unlikely to be relevant. Even if there were recent similar offences those would not necessarily be relevant to the seriousness of the current offence. For example, if the offender is a compulsive shoplifter, the tenth offence is not made any more serious by the previous nine offences; for an habitual inebriate who goes to Tesco every week and pinches a bottle of whisky, the tenth offence is no worse than the previous nine. It would be a different matter were the offender a member of a professional shoplifting gang. Then the circumstances of the previous offences might well be relevant to the sentence for the latest offence.

The account that is to be taken of the offender's previous record in sentencing raises a difficult issue. It is one to which we have given a great deal of thought. I am quite clear—I agree with the noble Lord, Lord Hutchinson of Lullington—that generally speaking, sentencing on record (punishing an offender twice over for the same offence) is wrong in principle and harmful in practice. Clauses 3 and 6 rule that out. On the other hand, if the circumstances of previous offences are genuinely relevant to the seriousness of the offence then almost by definition we would produce the wrong result if we told the courts completely to ignore them.

I believe that Clauses 3 and 6 strike the right balance. I hope that the Committee will agree.

Earl Nelson

Before the noble Earl sits down perhaps I may revert to the example he gave of the inebriate who goes every week to Tesco and steals a bottle of whisky at a value, let us say, of£9. I believe that I understood his point. On the one hand, there is the drunk who goes to Tesco and steals a bottle of whisky which is valued at only£8 or£9 and on the other there is, say, the professional pickpocket with 20 previous convictions which cover perhaps five years but who steals only£5 each time. Are we then to treat the professional pickpocket in the same way as it is suggested that the drunk who steals whisky from Tesco should be treated?

Earl Ferrers

It is always difficult to say what one would do in one case as opposed to another. I gave the example of the bottle of whisky at Tesco. The person who stole in that way week after week in fact could not help doing it. Therefore, the cumulative sum of offences does not affect the main principle that the man could not help acting in that way. Had that man been part of a gang and removed the bottle in order to stock up some other shop—a case of deliberate knavery—then the other offences ought to be taken into account.

As regards the pickpocket, obviously the judge would have to consider whether or not that was a matter which fell within the scope of these clauses. I do not think that it would be right for me to comment on that.

Viscount Tenby

Perhaps the Minister will permit me to ask another question on this matter. I am not exactly shifting the goal posts. I understand the point about judging the offence under consideration in relation to a past criminal record. Let me consider the other side of the coin. What about the man who has a record and comes again before the court although he has not offended for a considerable period of time? Should not the court take that fact into mitigation? Is it able to do so?

Earl Ferrers

Yes, I think that it is able to do so and would do so.

6.15 p.m.

Earl Fortescue

I should like to ask my noble friend a question to which, had I studied the Bill in proper detail, I should probably know the answer. I am concerned about the offender who has been in trouble on several other occasions and been sent to prison two, three or maybe four times. To impose a community sentence is a great risk to take. I wonder whether it will now be possible to combine a community sentence with a suspended prison sentence. It seems to me that that might be the best and easiest answer.

Earl Ferrers

I believe that in fact it is not possible to combine a suspended prison sentence with a community sentence because the two sentences cover different aspects.

Lord Richard

I am obliged to the Minister for his response. However I ask him to look again at this matter. The provisions of Clause 3(3) create confusion as to the extent to which courts are entitled to look at previous offences. The noble Earl said that they can only do it for the purpose of forming an opinion as to the seriousness of the offence. I understand that. But an hour or so ago, charmingly as always, he was not prepared to define "serious" because it would hamper the activities of the judges in the courts.

Clause 1(2) says that: the court shall not pass a custodial sentence on the offender unless it is of the opinionߪthat the offenceߪwas so serious that only such a sentence can be justified for the offence".

For the life of me I do not understand why, when that is in Clause 1(2) (a), one then needs the provision in Clause 3(3) which, from the way in which it is drafted, will only complicate matters so far as concerns sentences. Clause 3 does not add anything to the provisions of Clause 1(2) (a). I suppose that it is simply an attempt to remove what the draftsmen thought might be confusion arising from Clause 3(2). If that is the basis, all I can say to the noble Earl is that it has not succeeded in removing confusion but has compounded it.

If subsection (3) were omitted from the Bill, a judge who had an offender in front of him with a number of previous convictions, under the provisions of Clause 1(2) (a) would clearly say to himself: "Let us look at this man's background. Is he a professional burglar, pickpocket or stealer of whisky from Tesco? If I decide that he is a hardened criminal to that extent, ergo I come to the conclusion that this offence is more serious than the offence of the inebriate who goes into Tesco and steals a bottle of whisky because he or she is drunk and who does it on a fairly regular basis".

The judge can do that under Clause 1(2) (a). If he can do it already under that clause, why on earth do we want to repeat in Clause 3(3) in rather complicated and difficult language precisely what he can do in Clause 1(2) (a)? Subsection 3(3) is a complicated provision which adds nothing to the powers of the judges and does not do anything for the Bill. I suggest that this is a matter which the noble Earl might be so kind as to look at again.

Earl Ferrers

Perhaps I may say a few more words on this point. I understand the difficulty of the noble Lord. He is concerned about the definition of seriousness. One cannot go too far down that road. It is rather like people saying that in Bills one ought to define reasonableness—what is or is not reasonable. I believe that it must be for the courts to decide what is serious and what is not serious.

I accept that this is a difficult area. I shall of course consider all that has been said but I am advised that subsection (3) is needed so that the court can take into account everything that is relevant to seriousness. What the Committee has said is of great importance and I shall certainly look at this matter but without any commitment. I would not wish the noble Lord to think that that is an indication that I shall accept his amendment. But I realise that we are in quite delicate and difficult areas and I should be prepared to look at what the Committee has said to see if there is any way in which we can make the point better and clearer.

Lord Richard

I am obliged to the noble Earl for what he has just said. Personally, I do not see why subsection (3) is necessary. No doubt at some stage someone will tell me why it is. However, as the noble Earl will look again at the matter, I ask leave of the House to withdraw the amendment. If, after he has looked again at it, he decides to stick where he is, I reserve the right to bring the amendment back at a subsequent stage of the Bill.

Amendment, by leave, withdrawn.

Lord Richard moved Amendment No. 4B:

Page 2, line 11, after ("language") insert ("(with interpretation if necessary)").

The noble Lord said: This is a small amendment but it raises a fundamental point. The Committee will see that it is the peg on which to hang the hat. It amends line 11 on page 2 by inserting in subsection (4) (b), in any case, to explain to the offender in open court and in ordinary language with interpretation if necessary why it is passing a custodial sentence on him

There is evidence to suggest that some defendants who cannot communicate effectively in English appear before the court without access to properly qualified and relevant interpreters. Those few Members of the Committee who were present late one night may remember that I raised the issue in the passage of the latest code of conduct under the Police and Criminal Evidence Act. The evidence that I have since received confirms my fears.

The national and local courts should have a responsibility to ensure that services are accessible to all defendants and witnesses in a multilingual and multiracial society such as ours. They must make special provisions for people who cannot communicate in English. The need for interpreters was highlighted in a recent Policy Studies Institute survey which noted that within the adult Asian population, 62 per cent., and among Pakistani people, 48 per cent., speak either little or no English. Within all age groups, women on the whole are less fluent than men. Over 70 per cent. of Bangladeshi and Pakistani women were reported as speaking little or no English.

Most agencies recognise the need for interpreters in the criminal justice system. But there is no set policy for employing them, for testing their language skills, their efficiency or their suitability for the job. Interpreters are often recruited in a very ad hoc manner where staff cannot find the member of the team who speaks the required language. It is self evident that the use of untrained, casual interpreters can lead to difficulties. It may lead to wrong interpretation if the translator does not understand the jargon used by the court personnel or lawyers. He or she may have a personal bias, may distort the issue and not keep confidentiality. There may be serious consequences if the interpreter cannot understand the client's dialect or language properly. The same is true if the interpreter's English is modest.

Courts should not take advantage of volunteers. That may often lower the standard of service provided. In order to give an efficient court service, interpreters should be trained, paid properly for the service, and supported adequately. Perhaps I may cite two examples recently brought to my attention where defendants probably suffered because of the absence of, or casual attitude towards, interpreters. An Asian with a limited command of the English language, having no previous convictions and no contact with the probation service, was sent to prison in the Midlands for four months. She had pleaded not guilty to making a false instrument but was found guilty at the Crown Court. No social inquiry report was prepared. Her case had been allocated to an assistant probation officer when she was committed to the Crown Court. She had been processed by the magistrates' court without the probation service or the court authorities picking up her language difficulty.

The probation officer to whom the case was allocated wrote to her solicitor to establish her not guilty plea but never contacted her. The solicitor later used a member of her family to interpret in the preparation of the case. When the case was heard at the Crown Court she was finally allowed the services of an independent female interpreter. On a finding of guilt, the judge asked her barrister whether a social inquiry report would be required. The barrister took instructions and declined. She was then sentenced and taken down to the cells. It is of concern that the probation service did not give a higher priority to interpreting services. The solicitor also failed to employ an independent interpreter in the preparation of the case even though that cost could have been covered by legal aid.

Another example, although not similar, is in the same vein. An Indian man with a limited command of the English language was recently sentenced to six months' imprisonment for offences of driving with excess alcohol and breach of a suspended sentence for indecent assault on a young woman. He had no previous convictions. The man was seen in order to be assessed for a bail address because he was listed as being of no fixed abode. The solicitor maintained that he was able to understand so long as he was spoken to slowly. The probation service was asked to clarify the man's financial situation. It became clear that he had a permanent address. He was therefore not in need of a bail address but was in need of help in relation to his immigration status. The police had already been alerted by the immigration office that the man was subject to deportation. The probation service advised lawyers to have the case put back so that appropriate interpreters could be found. However, due to the man's status, bail was refused.

Those two cases are relatively undramatic. At the Crown Courts, the Old Bailey and the major courts where trials take place, interpretation services are provided in the serious cases. It is at the lower end of the ladder that frequently they are not provided. It is there, unless we are very careful, that defendants tend to fall through the net. Many courts now routinely supply interpretation but the coverage is patchy. If the courts had a statutory duty to obtain and provide appropriate interpreter services, then the possibility of misunderstandings and even miscarriages of justice would be minimised.

This is not a minor issue for the ethnic minorities in this country. It is a matter that the Government should take on board. I hope that the noble Earl will give some undertaking.

Lord Renton

I was hoping that the noble Lord would be able to add a postscript. I listened with great interest and some sympathy to his remarks. He said, if I heard him aright, that the court should not simply call on volunteers as interpreters. However, there is nothing in his amendment which requires anything other than the mere obtaining of interpretation. Before we go any further, will he explain what he is getting at?

Lord Richard

I was thinking of an instance in which a defendant appeared in court. There was no interpreter readily available and the police were advised to contact the local race relations board. They did so. It was claimed that the interpreter was able to speak the language which the defendant spoke. It became clear during the course of the case that he did not. Fortunately it became clear sufficiently early. To rely on such a casual approach in order to provide an interpretation service in court has dangers. Sometimes those dangers result in people being convicted who should not be convicted. They are sent to prison. The Home Office should ensure that the interpretation services provided in our courts are sensible and work properly.

As a result of considerable work in an experiment in Cambridge, the interpretation services provided in the Cambridge area, with the co-operation of the police, are extraordinarily good. I should like to see that extended. Reliance upon volunteers is dangerous.

Lord Hylton

The noble Lord has raised an important and valuable point. However, his amendment seems to bear only on sentencing. Will the Government consider the matter in a much wider context involving the whole trial and judicial process?

Lord Renton

It is within the knowledge and experience of many Members of the Committee that the courts never hesitate to try to find an interpreter when an interpreter is needed. There is already ample power to do so. In the course of time the courts have taken upon themselves the duty to try to find an interpreter. Very often the interpreter is a friend from within the immigrant's own community. There could be no better person, because the court will understand what the accused is trying to get at, what he needs to know and so on. In a perfect world one would wish to find the services of qualified interpreters available all the way down the scale; but that is not what the noble Lord's amendment requires. As it stands I do not think that it adds anything to the present obligations under the law.

6.30 p.m.

Earl Ferrers

The noble Lord, Lord Richard, draws attention to a point to which the Government attach considerable importance—that is, the provision of adequate arrangements to provide competent interpreters in court proceedings which involve defendants who do not understand English. The Home Office at the moment are participating in the steering committee for the community interpreter project, which is being funded by the Nuffield Foundation and which has developed a model for the selection, training and assessment of community interpreters for the criminal justice system as a whole. That is a point that the noble Lord, Lord Hylton, was concerned about. We hope that this work will prove helpful in identifying what further needs to be done in order to ensure that no one who appears in court is disadvantaged because of an inability to speak, to understand or indeed to hear the language of the court.

We shall certainly be bearing in mind, in the light of progress with this work, the case for statutory rules about the provision of interpretation or a statement of best practice. This is inevitably some way off, because the fact is that there are very few qualified interpreters in relation to the demand for them, and their numbers cannot quickly be expanded.

Section 144 of the Magistrates' Courts Act 1980 provides for statutory rules concerning the conduct of proceedings in magistrates' courts. These could be used to make provision in regard to interpretation, if it turned out that a statement of best practice would not he sufficient. There are equivalent powers to make rules for Crown Court proceedings. The purpose of Clause 1(4) (b) of the Bill is so that the reasons for a decision to pass a custodial sentence should be explained to the offender in a way the offender can understand. I am sure that the courts will recognise that special care would be needed if the offender could not understand, or had difficulty in understanding, English. However, I do not think it is necessary to refer expressly to this in the Bill. As I have said, we can issue guidance and we can make statutory rules if it should appear that interpretation is not being provided where it should be or if further guidance on the best way of providing interpretation should prove to be helpful.

It is the law, which has been settled for over 75 years, that where a defendant does not understand English the evidence must be translated, and there are already regulations for the payment of interpreters out of public funds for that. I think therefore this is a matter for organisation and not for legislation, but I understand the difficulty to which the noble Lord has drawn attention.

Lord Harris of Greenwich

I wonder whether it would be possible for the noble Earl to give us some indication of when the Nuffield study will be completed.

Earl Ferrers

I cannot tell the noble Lord now when that will be; but I shall try to find out and will let him know.

Lord Richard

I thank the noble Earl for his response. The noble Lord, Lord Renton, is quite right. My amendment is a very narrow one but it was designed to provoke a response on a much more general approach, and I think that the noble Earl has provided that. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 5 not moved.]

The Deputy Chairman of Committees (The Viscount of Oxfuird)

In calling Amendment No. 6, I have to advise your Lordships that if this amendment is agreed to, I cannot call Amendment No. 7, due to pre-emption.

Earl Ferrers moved Amendment No. 6:

Page 2, line 25, leave out subsections (7) and (8).

The noble Earl said: I beg to move Amendment No. 6 and, if I may, I should like to speak also to Amendments Nos. 76, 101 and 102. These amendments all tidy up the drafting of the Bill and they make no substantive changes to its provisions. If your Lordships wish me to give an explanation I shall do so, but as the amendments do not make any substantive changes to the provisions of the Bill, I hope that you will accept such a brief explanation. I beg to move.

On Question, amendment agreed to

[Amendment No. 7 not moved.]

Clause 1, as amended, agreed to.

Clause 2 [Length of custodial sentences]:

[Amendment No. 7A not moved.]

Lord Windlesham moved Amendment No. 8:

Page 3, line 1 leave out paragraph (b).

The noble Lord said: I beg to move Amendment No. 8, standing in the names of the noble Lords, Lord Hutchinson of Lullington, Lord Morris of Castle Morris, and myself. This is the first time that I have spoken in the Committee on this Bill, and I should like to say at the outset that I applaud the aim to produce a coherent legislative framework for the sentencing of offenders. That is a worthwhile objective and one that is fully deserving of support.

In many ways the sentencing provisions in the first five clauses are the core of this important Bill. They were forecast in the notable Green Paper on Punishment, Custody and the Community and in the White Paper which followed it. But it was always going to be a difficult task to translate the intentions and principles of the policy into statutory form.

I ask your Lordships to consider the aim that the punishment for an offence should be commensurate with the seriousness of the offence: what could he clearer than that? The precept that punishment should fit the crime is one of the basic principles upon which the administration of justice depends. I am sure we can all agree upon that. The idea of proportionality and just deserts was a theme of the White Paper, but now we have in this part of the Bill in Clause 2(2) (b) a provision that empowers the courts in certain circumstances to give violent or sexual offenders sentences which are longer than the offence deserves if, in the opinion of the court, it is necessary to protect the public from serious harm from the offender. In such cases, excluding the most serious, the courts are allowed—indeed encouraged—to impose sentences that are disproportionate with the current offence.

What is the justification? So far as I can tell from speeches made by Ministers in another place, it is that the protection of the public from further crimes by persistent and dangerous violent or sexual offenders is so vital that an exception should be made to the rule of law—for that is what it is—that a man should be punished for what he has done rather than for what he may do. If any authority is needed for that proposition, I would cite three recent cases in the Appeal Court: Smith in 1987, May in 1989, and Richardson when the same principle was upheld as recently as last year.

This is not the first time it has occurred to legislators that public support can be gained in this way. There is very little that is original in the perennial questions of crime and punishment. As long ago as 1908 in the Prevention of Crime Act preventive detention was introduced. In the Criminal Justice Act 1948 corrective training was introduced. In the Criminal Justice Act 1967 extended sentences were introduced. All have failed to fulfil expectations and have been discontinued. It is an irony that in this very Bill Clause 4 abolishes extended sentences of imprisonment for persistent offenders.

It is true that, unlike extended sentences, the current proposal for the topping up of sentences will need to be within the maximum penalty prescribed by the statute. But that does not overcome the objections. There are several, but let me concentrate on only two. The first is that persons sentenced under Clause 2(2) (b) could receive sentences for less serious crimes of a severity that is normally reserved for more serious crimes. Secondly, the inconsistency that will result is surpassed by the fact that under the Bill the power to increase the sentence beyond what the crime deserves does not extend to the more serious offences that are triable only in the Crown Court.

As amended in another place, Clause 2 of the Bill applies where a person is convicted of an offence which is triable either way, or only summarily in the magistrates' court. Thus when an offence triable either way is heard before a jury in the Crown Court, what happens'? The judge must remember that he has a power, given him by this Act when it becomes a statute, to set aside the rule of law that punishment should fit the crime. But that same judge, sitting in the same Crown Court, when trying the case of a person charged with a more serious offence—again of violence, or a sexual offence but one triable only on indictment—must remember that he is now bound by the rule of law. He has no power to disregard it in the second case; in the first case he does.

That cannot be right. It is illogical. It will only cause confusion among the judiciary. There is a strong probability that problems would result with the application of the European Convention on Human Rights and the jurisprudence of the Court of Human Rights. The omens for this proposal—and that is all it is at present—are no more favourable than the previous attempts at disproportionate sentencing. It is for that reason that I and a number of others from all parties in both Houses believe that this part of the Bill is better omitted. I beg to move.

6.45 p.m.

Lord Hutchinson of Lullington

I support the amendment and add to what has been so powerfully said already by the noble Lord, Lord Windlesham, when he was pointing out the ridiculous situation as regards the difference between the two cases that come up. It would be even more ridiculous if there were two or three people in the dock in relation to one situation where one of them had committed the lesser offence on the indictment and another had committed the more serious offence on the indictment, and that same judge would then have to say, "Well, so far as the more serious offence is concerned, I am bound by the common law rule of proportionality, and I shall sentence you to two years' imprisonment because that is what you deserve on the offence. But for you, No. 2, it is a lesser offence, but there I have the statutory right under the Act in Section 2(2) (b) to follow the words of the statute, and I may extend the two years. I won't give you two years. One year would be what is proportionate to the offence, but because of your record and so on I shall extend it to three years". He would be bound by two completely different principles. That is a ridiculous situation, as the noble Lord, Lord Windlesham, has already said.

The noble Lord also mentioned the Court of Human Rights. The Court of Human Rights has just delivered a judgment exactly on this point in the case of Thynne and others. In that instance, of course, it was a life sentence, but what the Court of Human Rights said was that when a life sentence prisoner has served that proportion of the sentence which is for the penal part of it—that is, the just deserts part of it—he is entitled to have a review by a judicial body of when he should be allowed out on "the safety of the public part" of the sentence, and exactly based on the same principle to which the noble Lord, Lord Windlesham, referred. Not only will it come up; it has already come up in the Court of Human Rights.

Looking at the words of this objectionable subsection, it says, for a violent or sexual offence, for such longer term".

As has already been pointed out by the noble Earl, sexual offences vary between the absolutely trivial and the most appalling and violent offences. The trouble is that sexual offences in the main are the worst possible offences for sentencing people to long periods of imprisonment. The whole policy at the moment everywhere is to try to keep these offenders out of the negative procedure that would be the result of imprisonment.

Such offences arise emotionally and they are bound to arouse an emotional response in magistrates' courts, and indeed in the higher courts. As a result, it is easy for the court to give the response, "You must be put away for the protection of the public". That is a very easy response. The mischief of this topping-up subsection is that it is exactly that kind of offence where the wrong sentence will be passed because the court has the power to top up sentences. I suggest that that is another mischief.

How long should the protection be? That introduces an assessment of an accused's future behaviour which is bound to be a very subjective judgment. Do the public need one, two, or five years' protection? People sitting in the public gallery will say, "This sex offender is an absolute monster. He has interfered with children on two occasions and five, six or even eight years' protection is needed". It is a totally subjective judgment about what the future behaviour of an accused might be. That is not a good basis for sentencing policy. For those reasons and for the reasons so powerfully urged by the noble Lord, Lord Windlesham, I support the amendment.

Lord Renton

I too support the amendment but I do so for slightly different reasons from those already advanced by my noble friend and the noble Lord, Lord Hutchinson of Lullington.

When the courts find that they have to interpret this clause they will be obliged to apply the well-known rule of statutory interpretation which, if I may dare to use a short Latin tag, can be expressed as expressio unius est exclusio alterius. In plain English that means that if Parliament gives one example, other examples must be presumed to have been excluded.

Here we are given the two hypotheses of violent and sexual offences. However, there are many other offences from which the public need to be protected, sometimes for a long time. What about those offenders who persistently break into people's homes by night or even by day? Do not the public need to be protected from them? What about those rather disgraceful fraudsters who find an excuse to enter an old lady's house by posing as an official and who then rob the old lady while her attention is diverted? That is a crime which is too easy to commit and is frequently committed more than once by the same person. I should have thought that taking the view that such persistent offenders as I have mentioned ought to be given a sentence which will protect the public for some time the court will read the subsection and find that it has no power to do so because of the very sound rule of' interpretation.

When legislating, those who instruct the draftsman sometimes ask him to cover particular hypothetical cases. They may not be the most frequent or even the most serious hypothetical cases. This is a glaring example of selective hypothesis. I feel that we should exclude this subsection for the reasons already given.

Perhaps I may back-track to say that we may very well have had the same sort of discussion on Clause 1(2) (b). Perhaps at a later stage we should also consider that. I believe that very strong reasons have been given for omitting this subsection.

Lord Morris of Castle Morris

I support the amendment because the present proposal which it is designed to amend is both unjust and ineffectual.

Clause 2(2) (b) empowers courts to give violent or sexual offenders sentences longer than the offence deserves if they consider that it is, necessary to protect the public from serious harm from the offender".

However, that provision is not aimed at offenders who commit the most serious offences. Those offences which are triable only on indictment are excluded from Clause 2 and continue to be governed by present sentencing criteria. Those offenders would continue to receive lengthy sentences in line with Court of Appeal guidance which has produced swingeing increases in sentence lengths for violent and sexual offences since the mid-1980s.

According to the White Paper Crime, Justice and Protecting the Public of February 1990, that provision is aimed at offenders convicted of less serious offences but where the court realises that they are a serious risk to the public. The White Paper cited the example of an offender convicted of an offence of causing actual bodily harm which would normally merit a twelve-month sentence. Under the proposed legislation the Crown Court, could give a longer sentence, up to the maximum penalty of five years, if it considered this necessary to protect the public from serious harm from the offender

The central objection to that approach is that it is unjust. Principles of justice require that the courts seek proportionality between the severity of the penalty and the just deserts of the offender. Members of the Committee will recall instantly the kind of case which we in Wales remember coming up in the imaginary magistrates' court at Llanerchymedd which had before it on one day four separate and consecutive cases of the alleged stealing of a sheep. The first case was punished with a fine of£10, the second with a fine of£20, the third with a fine of£50 and the fourth with a swingeing fine of£100 on the grounds that, "There is far too much of that sort of thing going on".

Once sentencers abandon the principle of proportionality, they are no longer applying justice but a form of social engineering without a defensible moral foundation. Social engineering in itself is not necessarily bad. Half of the significant reforms in 19th century British history could be so described. However, that is not the responsibility of the courts. Sociologists, economists and even politicians have a part to play in social engineering but judges, I submit, do not.

There is also the question of double punishment. Offenders sentenced under these powers could receive sentences for less serious offences of a severity normally reserved for more serious crimes. Assuming that the risk of serious harm will normally be inferred from previous offences, that amounts to a person being sentenced twice for the same offence: first, when he receives his original sentence and, secondly, when an additional amount is added to the sentence for a later less serious offence. Such sentencing decisions would be highly subjective based not on what the offender has done but on the judge's guess as to what he may do in the future. In the words of the poem: What is to come is still unsure".

This sort of measure has a poor history. Previous legislation allowing wholly disproportionate sentences for persistent offenders has proved unpopular with judges. Preventive detention in the Prevention of Crime Act 1908, corrective training in the Criminal Justice Act 1948 and extended sentences in the Criminal Justice Act 1967 have all empowered courts to impose much longer sentences than normal on persistent offenders. All have fallen into disuse and disrepute. I believe that the extended sentence was used only five times in 1988 and this Bill abolishes it.

Clause 2(2) (b) is not only unjust but is also ineffectual especially in the case of sexual offenders. As has already been said, sexual offenders need not so much a long period of incarceration but effective treatment for their condition. The length of sentence should be determined at least in part by the time required to bring about a change in the offender's behaviour. There is reason to believe that the Government are slowly beginning to see the light on this matter.

When he introduced the Government amendment at Report stage in another place on 20th February, the right honourable John Patten, the Minister of State at the Home Office, said: These amendments will enable the courts to require many sexual offenders to undergo longer and more intensive programmes of supervision. The purpose is to increase the confidence of the courts—that is very important—and of the public in the arrangements for dealing with sexual offenders, to protect the public from the risk of serious harm from sexual offenders, and to try to help sex offenders to reduce the risk of their committing further sexual offences in future" —[Official Report, Commons, 20/2/91; col. 287.]

Those laudable aims are unlikely to be fulfilled unless the Government are prepared to provide central funding for centres providing specialist treatment and therapy for sex offenders. Such treatment confronts offenders' attitudes to their offending; it requires them to accept responsibility for their behaviour and to acknowledge the serious damage that is done to their victims. It also helps them to control their deviant sexual tendencies. Without such treatment extended periods of supervision and long periods of incarceration will be of little value in protecting the public from sex offenders.

At present there is only one centre in England and Wales—the Gracewell Clinic in Birmingham—which provides such treatment on a residential basis. To-date the Gracewell Clinic has had 526 referrals, 110 of whom have been treated at the clinic. While the Gracewell staff are the first to agree that a rigorous research evaluation needs to be conducted of its effectiveness, it is notable that to-date no one—I repeat, no one—treated at that clinic has been re-convicted. That is encouraging even when allowance is made for the under-reporting of such offences.

At present the Gracewell Clinic receives no central government funding. Since it was established it has depended heavily on the financial generosity of a single individual benefactor. The Home Office agreed that when the probation service places an offender at the clinic it can pay from its area budget for the offender's treatment. However, as your Lordships will be well aware, probation budgets are severely stretched and it is not always possible for them to find money for such a purpose when it is needed.

The provision of treatment for sex offenders is of such importance that a careful and reputable approach like that of the Gracewell Clinic ought to receive government backing. The Government should provide financial support to Gracewell, pending an evaluation of its effectiveness, and other clinics which may then spring up. If such an evaluation indicates that the clinic's approach is effective, the Home Office should seek resources from the Treasury to establish similar centres in other areas. That is the way forward; not that suggested by paragraph (b), which will simply incarcerate a deteriorating condition.

I add one personal note. Last year BBC Radio 4 ran a short series of programmes called, "The Moral Maze". It was a kind of panel programme where witnesses were interrogated on great moral issues of the moment. I was one of the panel together with a splendid rabbi, a professor of law and a journalist. One subject on which we were called upon to interrogate witnesses was pornography and its effects. We interviewed, among others, the director of Gracewell Clinic. I was deeply impressed with his ability, skill, seriousness, sensitivity, and above all his success. The Gracewell programme is hard, relentless and long; it is almost cruel. I was worried in case it amounted almost to brain washing; but it works. People do not re-offend.

It is that approach that we need to adopt towards sexual and violent offenders. It is the way forward, and I support the amendment.

7 p.m.

Lord Harris of Greenwich

The noble Lord spoke of the Gracewell Clinic. As he is aware, amendments have been tabled to deal with a range of issues concerning the clinic. Therefore I shall not follow his interesting observations on that matter.

I return to the speech of the noble Lord. Lord Renton, with which I very largely agree. Why do we refer to "sexual" and "violent" offences? The descriptions are far too broad. As my noble friend Lord Hutchinson pointed out, in terms of sex offences they range from offences of multiple rape incorporating massive violence, to offences such as indecent exposure. It is far too broad a description of a group of offences to be incorporated in the Bill in the way that it is. The same applies to violent offences. The description ranges from a relatively minor assault to acts of extreme violence.

I find it difficult to understand why those two categories of offences are picked out in the way that they are. They do not necessarily reproduce faithfully public attitudes. As the noble Lord, Lord Renton, indicated in his speech, compared with a relatively minor sex offence or a minor offence of violence, there is infinitely greater disquiet felt among elderly people when they have been ripped off by sophisticated fraudsters. That group of people arc not mentioned in the Bill. It is wholly wrong in principle that those two categories of offences should be isolated in the way that they are.

We have been down this path on a previous occasion with Mr. Brittan's parole policy, which led to the establishment of the Carlisle Committee. Specific types of offences were laid out by him in a statement at the Conservative Party conference, where he indicated that there would be a wholly different parole policy for certain types of offences compared with other categories of offenders. What did the Carlisle Committee say about that approach? It said that it was wrong in principle, and it is in the process of being buried in this Bill. In that situation why do we have what, in my view, are unworthy and ill-advised words in the Bill.

Lord Elton

I shall be interested to hear my noble friend's response to the point made by my noble friend Lord Renton on expressio twins est, exclusio alterius.

Leaving that aside, perhaps lay Members of the Committee can have a little help both from my noble friend Lord Windlesham and the Minister. We have been warned of using hypothetical cases, but categories may be stated hypothetically.

I should like to know from my noble friend Lord Windlesham (who moved the amendment) what would be the case if his amendment was incorporated in the Bill and the removal of paragraph (b) was effected. How is it proposed to treat a serious violent offender who maintains both during his trial and during his sentence that his greatest ambition is to repeat the offence on the same category of person? Whether immigrants, Chinese, foreigners or women is immaterial.

I should like my noble friend the Minister to tell me what I should already know: what happens in such cases under the law as it now stands, and what would happen in the case, if it occurred, with the Bill unamended?

The Earl of Longford

I shall not detain the Committee for more than a moment. I endorse what was said in regard to the Gracewell Clinic. There is to be discussion about that later. I have visited the clinic and it is doing good work. On the other hand, it is extremely expensive in the sense that the ordinary person cannot afford to attend. I am referring to an individual with a sexual record who has just left prison. Under the present arrangements, he simply cannot afford the amount of money necessary to attend the clinic. I endorse what has been said about the need for Government support.

Generally speaking I regard this as a confused clause which arises from confusion in the mind of the noble Lord. We have heard speeches from lawyers, administrators of the law and others. I speak as an old don—that is to say, a person who is accustomed to putting questions, conducting viva voces and asking people whether they are quite sure they know what they mean. I do not believe that the Government would get a pass degree of any kind on the strength of this clause. I am disgusted at the great deal of confusion here. What does this measure amount to? The Government feel entitled to qualify a matter whenever they feel like it in response to what they believe is public opinion which, I suppose, is the kind of opinion expressed in the Sun newspaper or a similar tabloid.

I am horrified at the idea that one can suddenly have a great principle which is retribution under another name. There is no harm in retribution. Years ago I wrote a book in which I argued for retribution. There is nothing harmful in that provided it is properly understood. But it is qualified by this new and evasive arrangement in which certain selected people who are the targets of public animosity are to be treated worse. Speaking as an old don, I give the Government an omega.

Lord Elton

Obviously my noble friend Lord Renton is volunteering to answer the question I asked of my noble friend Lord Windlesham. Perhaps my noble friend will give me the answer.

Lord Renton

As I see the matter, there is already power in the courts to take into consideration, in cases of persistent offenders, the need to protect the public in quite a wide range of cases. If we are to have a measure replacing paragraph (b) then let us take the principle giving power to the court in general terms instead of using selective hypotheses.

Earl Ferrers

I am very grateful to my noble friend Lord Renton for answering the point raised by my noble friend Lord Elton. If my noble friend Lord Renton wishes to answer the remainder of the questions that I have been asked, I shall be delighted for him to undertake to do so. He is entirely correct. The existing law allows courts to give greater sentences. The existing law will continue in relation to the Crown Courts which deal with indictable only offences and where the person has already served a prison sentence. My noble friend Lord Renton shakes his head.

Lord Renton

If we keep paragraph (b) then on all future occasions the courts will look at it and say, "Parliament has selected the occasions when we may imprison for the protection of the public. If Parliament had wanted that protection to be given on other occasions, we have no power to do it. We have to bear in mind what Parliament has now enacted".

7.15 p.m.

Earl Ferrers

I shall bear in mind what my noble friend says. Clause 2(1) says: This section applies where a person is convicted of an offence which is triable either way or only summarily".

My advice is that the existing powers of the Crown Courts continue and the curtailment relates only to those cases which are triable either summarily or both ways. My noble friend Lord Windlesham did as he always does. He made a very powerful speech about this amendment. This amendment would prevent the imposition of a longer sentence than the seriousness of the offence would justify in the interests of protecting the public from serious harm from a violent or sexual offender.

It would mean that in future the sentencing powers of the courts would be determined, if my noble friend's amendment were to be accepted, solely by the seriousness of the offence for which the offender was convicted. An important function of the criminal law, namely, to protect the public, would be inadequately provided for in the Bill. That function of the law is carried out now. Most people would agree with the proposition that the courts must have sufficient powers in order to protect the public from serious harm. That is exactly what Clause 2(2) (b) does in a reasonable way. The power to impose a longer sentence to protect the public is available only for violent or sexual offences.

In order to invoke that power the courts have to do various things. The noble Lord, Lord Hutchinson, said that the courts would get it wrong if sentence were passed through topping up. If the courts are to take this course they must be satisfied that there is a risk of death or serious personal physical or psychological injury to members of the public occasioned by the offender committing further such offences. Clause 1(7) says quite clearly: In this section and section 2 below 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".

That is the purpose of having this permission in the Bill. The reasons have to be stated in open court for imposing such a sentence. The courts must not impose a sentence which is longer than the statutory maximum for the offence. In other words, the power is available only where the offender clearly represents a danger to the public and only where the court has very clear grounds for imposing such a sentence and makes those grounds clear. I entirely agree with the view expressed that the starting point for sentencing should be the seriousness of the offence and that generally an offender should not be given a longer sentence simply because of previous convictions. That is reflected in the Bill. We must also recognise that in some cases this approach may not give the public adequate protection.

I can give two examples. An assault occasioning actual bodily harm might, on the grounds of seriousness, justify a sentence of 12 months. But it might be clear that the offender has committed several similar offences in the recent past of an increasingly worrying kind. My noble friend Lord Elton made some suggestions about that. In those circumstances the Crown Court may feel it is right to give a sentence longer than 12 months and up to but not in excess of the maximum penalty of five years, in order to protect the public from risk of further serious harm.

Let us consider a case of reckless driving. The particular offence may not of itself be serious enough to justify a six months' custodial sentence. But if it is clear from the offender's previous convictions that he or she has committed a number of reckless driving offences before and by so doing has risked causing serious injury to other drivers or pedestrians, a magistrates' court may judge that a six months' custodial sentence will protect the public by taking the offender out of circulation for a period of time and may bring home to the offender the seriousness of his or her behaviour.

My noble friend Lord Windlesham referred to the power to give longer sentences which did not apply to indictable only offences. The point of the Bill is that in the indictable only case where the offender has previously been in prison, the Bill does not limit the court's sentencing powers. The courts can now give a longer sentence to protect the public. They will still be able to do so. The difference between the two cases cited does not arise in practice. We should be rightly criticised if we did not retain the ability of the courts to give longer sentences to protect the public provided that those sentences are within the maxima laid down by Parliament.

Lord Renton

Before my noble friend sits down, perhaps he will allow me to intervene. I think we can get the best of both worlds. We can meet the principle which he has stated of giving power to the court and we can meet the principle expressed by my noble friend Lord Windlesham and others in the debate by simply leaving out, in the case of a sentence of imprisonment for a violent or sexual offence",

and leaving in the rest of paragraph (b). I should have thought that everybody would then be satisfied. It means that the court would have just that power, which, very naturally, my noble friend Lord Ferrers has said the courts should have, of sentencing people, where the circumstances seem to require it, for a longer period in order to protect the public from serious harm.

Lord Elton

My noble friend has slightly extended the operation of the revised amendment by leaving out the words "in the case of a sentence of imprisonment". He has thus extended the operation of the whole of the subsection to other sentencing.

Lord Harris of Greenwich

Perhaps I may ask the noble Earl whether he would be good enough to deal with the two issues which were raised and to which he has not responded. First, is what the Government propose here consistent with our obligations under the European Convention on Human Rights? That question was put to him, as he may recall, by two of my colleagues. Many of us look forward to hearing his response. He may remember that the noble Viscount, Lord Whitelaw, when Home Secretary, was asked precisely the same question on a matter involving immigration. The answer given was, "Yes, we are wholly satisfied. It is consistent". The Government then lost the first case that went to the European Court on the issue. We should like to know and to be reassured that this matter has been examined by the Government and their legal advisers.

Secondly, I asked, as did others, why sexual and violent offences have been isolated in this fashion. How can it be right for us to return to the policy which was announced when Mr. Brittan was Home Secretary? Mr. Brittan identified particular types of criminal offences as being wholly different from other types of criminal offences in relation to the administration of the parole scheme. The Carlisle Committee said that that was wrong in principle. Are not the Government returning to precisely the same attitude so far as concerns this subsection? I should be immensely grateful if the noble Earl would answer those two questions.

Earl Ferrers

My advice is that we are not in contravention of the European Court of Human Rights and that we are not likely to be. I do not see any incompatibilities with our obligations. The noble Lord referred to the Brittan policy. I do not think that this is the same thing. Sexual and violent offences have been isolated in this case because we are in the business of protecting the public. It is in regard to sex and violent cases that the public is most vulnerable.

My noble friend Lord Renton made a helpful drafting suggestion. He has, as always, the advantage over me in that he takes pride in being a draftsman, in which happy position I am not. I should like therefore to be able to consider his advice. It would be wholly inappropriate for me to comment off the cuff on such a fine piece of drafting as he has suggested. I shall certainly take note of it and get in touch with him later to tell him what I think.

Lord Windlesham

The heart of the noble Earl's reply on behalf of the Government was contained in his final words. He said that the Government wish to retain the ability of the courts to protect the public from serious harm. That is not what this subsection does. What the amendment is proposing is to maintain the status quo. It aims to retain the existing powers of the courts. It is the Government, in this subsection, who wish to extend them, and to do so in a way which is open to the objections that have been raised in the past 50 minutes or so. This is not a provision which has been sought by the judiciary. The judiciary has not asked for any additional sentencing powers to protect the public. The judiciary wishes to protect the public as much as the Government do and it has the necessary powers to do so.

Questions of "dangerousness" and "risk" are the hardest of all to weigh up and to estimate. Anyone who has been on the Parole Board, as the noble Lords, Lord Harris of Greenwich, Lord Hunt, and myself have been, know that to be the case. Once attached, "dangerousness" is a difficult label to remove. It is not quantifiable in a judicial procedure, least of all in the critical act of sentencing.

My noble friend Lord Elton asked me a question which was answered immediately and eloquently by my noble friend, Lord Renton. My noble friend raised a hypothetical situation. The answer I would give is the same as that given by my noble friend Lord Renton; namely—echoing what I said in reply to the noble Earl, Lord Ferrers—that the court already has powers under the existing law to take into account any aggravating circumstances in deciding upon the sentence.

Lord Elton

Can my noble friend reassure me on this point'? Am I mistaken in thinking that subsection (2) (a) which immediately precedes subsection (2) (b) does not limit the existing law in the respect that subsection (2) (b) at present seeks to restore it? I understand that his amendment will not restore the law to its present state because subsection (2) (a)—in this case the expressio unius—will be in the Bill and the exclusio alterius will be out of it.

Lord Windlesham

Subsection (2) (a) refers to a sentence commensurate with the seriousness of the offence. That is entirely acceptable and in accordance with the principles of just deserts and proportionality. We shall have to leave on one side the question of previous convictions, which was discussed in the earlier amendments. The reference to the term "commensurate with the seriousness of the offence" is in line with the existing law, and indeed the principles behind this Bill.

We have had a full debate—

Lord Elton

I do apologise for being so importunate but the point I am trying to make to my noble friend is a sound one. The Bill gives only one basis on which a sentence can be founded for such term and so on. No other consideration therefore is allowed to be caught. If it is right that inclusion of violent and sexual offences excludes all other offences, then surely the inclusion of only one basis for founding a term of the sentence excludes all others. That is the simple point I am trying to make. I apologise for making it so often and so badly.

Lord Windlesham

I appreciate my noble friend's concern. It is an issue which would need to be looked at carefully, as would the suggestion made by my noble friend Lord Renton, if the amendment were to be carried.

I believe that the Committee would like to express an opinion on the matter. We have had a full and well-informed debate. The amendment has received support from all sides of the House. If it were to be carried, the Government would need to look at the drafting of the remainder of the section, taking note of what my noble friend Lord Elton said, and also at the counter suggestion made by my noble friend Lord Renton. However, in the event of the amendment not being carried, we have heard my noble friend Lord Ferrers say that the Government will consider the suggestion made by my noble friend Lord Renton. In my view it is certainly worthy of consideration.

Earl Ferrers

I am sorry to interrupt my noble friend, but I believe that he is trying to lick the butter off of both sides of the bread. I said that I would consider the suggestion made by my noble friend Lord Renton. When one gives such undertakings, they are usually given on the understanding that the amendment is not pressed to a Division.

I see that I have upset the noble Lord, Lord Harris of Greenwich. However, perhaps he will contain himself a little longer and allow me to continue. The noble Lord is shaking his head, but he should wait to hear what I have to say.

As I said, normally when one gives such an undertaking it is given in order to facilitate the procedures. It would seem that my noble friend Lord Windlesham wishes to press the matter to a Division in the belief that, if the Government lose it, we shall nonetheless reconsider the matter. It would be discourteous of me to say that I shall not consider the very helpful suggestion made by my noble friend Lord Renton. I was merely trying to make the point that I believe my noble friend Lord Windlesham is trying to lick the butter off of both sides of the piece of bread.

Lord Windlesham

There will be further stages of the Bill. Noble Lords will have the opportunity on Report to table such amendments as they wish. At that time, my noble friend Lord Ferrers can tell us what he thinks about the merits of the proposals.

7.32 p.m.

On Question, Whether the said amendment (No. 8) shall be agreed to?

Their Lordships divided: Contents, 52; Not-Contents, 69.

Division No. 2
Airedale, L. Houghton of Sowerby, L.
Broadbridge, L. Hutchinson of Lullington, L.
Cledwyn of Penrhos, L. Kilbracken, L.
Cocks of Hartcliffe, L. Kinloss, Ly.
Craigavon, V. Lawrence, L.
Darcy (de Knayth), B. Longford, E.
David, B. Macaulayi of Bragar, L.
Dean of Beswick, L. Masham of Ilton, B.
Donaldson of Kingsbridge, L. Mason of Barnsley, L.
Dormand of Easington, L. Morris of Castle Morris, L.
Faithfull, B. Morris of Kenwood, L.
Fisher of Rednal, B. Nathan, L.
Galpern, L. Nicol, B.
Graham of Edmonton, L. [Teller.] Parry, L.
Pitt of Hampstead, L.
Greenway, L. Renton, L.
Grey, E. Richard, L.
Halsbury, E. Ripon, Bp.
Hampton, L. Rochester, L.
Harris of Greenwich, L. Seear, B.
Henderson of Brompton, L. Sefton of Garston, L.
Stoddart of Swindon, L. Walston, L.
Taylor of Gryfe, L. White, B.
Tenby, V. Winchilsea and Nottingham, E.
Tordoff, L. [Teller.] Windlesham, L.
Turner of Camden, B. Winstanley, L.
Abinger, L. Henley, L.
Alport, L. Hooper, B.
Ampthill, L. Jenkin of Roding, L.
Astor, V. Johnston of Rockport, L.
Beloff, L. Joseph, L.
Belstead, L. Kimball, L.
Blatch, B. Long, V.
Boardman, L. Lucas of Chilworth, L.
Brabazon of Tara, L. Lyell, L.
Brougham and Vaux, L. Macleod of Borve, B.
Butterworth, L. Mersey, V.
Caithness, E. Milverton, L.
Caldecote, V. Mottistone, L.
Carnegy of Lour, B. Murton of Lindisfarne, L.
Carnock, L. Napier and Ettrick, L.
Cavendish of Furness, L.[Teller.] Nelson, E.
Orkney, E.
Clanwilliam, E. Oxfuird, V.
Cochrane of Cults, L. Peel, E.
Crathorne, L. Rankeillour, L.
Davidson, V. [Teller.] Rees, L.
Derwent, L. Renwick, L.
Downshire, M. Sharpies, B.
Elliot of Harwood, B. Skelmersdale, L.
Elliott of Morpeth, L. Stanley of Alderley, L.
Elton,L. Stodart of Leaston, L.
Ferrers, E. Swinfen, L.
Fortescue, E. Swinton, E.
Fraser of Carmyllie, L. Trumpington, B.
Gisborough, L. Ullswater, V.
Grimston of Westbury, L. Vaux of Harrowden, L.
Hailsham of Saint Marylebone, L. Waddington, L.
Wade of Chorlton, L.
Harmsworth, L. Wise, L.
Harvington, L. Wynford, L.
Hemphill, L.

Resolved in the negative, and amendment disagreed to accordingly.

Viscount Long

I beg to move that the House do now resume. In moving the Motion, I suggest that the Committee stage resumes at twenty minutes to nine.

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

House resumed.