HL Deb 26 March 1991 vol 527 cc1028-62

House again in Committee on Clause 2.

Earl Ferrers moved Amendment No. 9:

Page 3, line 13, leave out subsection (4).

The noble Earl said: In moving Amendment No. 9 it may be convenient if at the same time I deal with Amendment No. 13 in the name of the right reverend Prelate the Bishop of Ripon and government Amendments Nos. 30 and 71.

This group of government amendments is intended mainly to make better and clearer provision in the Bill for the mitigation of sentences. The key amendment is Amendment No. 71. That is a new clause relating to savings for mitigation to be inserted after Clause 23. Its purpose is to make clear that nothing in Part I of the Bill shall prevent a court mitigating an offender's sentence by taking account of any relevant matters. Those will include, among others, a plea of guilty, time spent in custody abroad, the terminal illness of the offender, the serious illness of someone close to him or any reparation by the offender.

Subsection (2) of the new clause makes more specific provision for mitigation. It brings together subsection (4) of Clause 2, which is referred to in Amendment No. 9, and subsection (3) of Clause 5, which is referred to in Amendment No. 30, both of which we seek to delete, and subsections (6) (a) and (b) of Clause 16, which is subject to Amendment No. 58, which we shall also seek to delete. Amendment No. 71 puts all of those points, which at present are in different parts of the Bill, into a more appropriate part of the Bill.

The new clause in Amendment No. 71 provides for mitigation generally. The fact that an offender had made or had offered to make reparation to the victim for his offence would certainly count in his favour when mitigation of sentence was considered. So, for example, would the fact that the offender had assisted the police. However, there is a danger that if we mention some mitigating factors the courts may conclude that Parliament meant to exclude others. For that reason I should prefer not to adopt the right reverend Prelate's suggestion, but I can assure him that his point is covered. I hope that that meets the concern of the right reverend Prelate.

Members of the Committee will see that the proposed new clause also refers in subsection (3) to the question of mentally disordered offenders. We shall debate that question separately under Amendment No. 17 and others which are grouped with that amendment. I should just say that subsection (3) of the new clause in Amendment No. 71 ensures that the Bill cannot he taken as requiring a custodial sentence or one of a particular length to be passed on a mentally disordered offender or as constricting in any way powers to make an order under the Mental Health Act 1983. I can assure the Committee that acceptance of that part of the new clause will not pre-empt discussion of the other amendments relating to mentally disordered offenders.

The other two amendments are simply consequential on the proposed new clause. I beg to move.

8.45 p.m.

The Lord Bishop of Ripon

I should like to speak to Amendment No. 13, to which the Minister referred. The amendment was proposed when the Bill was considered in another place. I understand that it was withdrawn on the understanding that the Government would consider the matter further. I am grateful to the noble Earl for the point that he made.

Nevertheless I should still like to raise the question of reparation covered by the amendment. Reparation has merited increasing attention. Attention has rightly been given to the importance of holding offenders accountable by requiring them to make reparation for their offences. That has been done partly through compensation orders and partly through community service orders. However, a body of experience has recently grown up concerning the method of reparation based on bringing together victim and offender. It is that particular notion of reparation which I should like to mention this evening.

The Home Office sponsored four pilot programmes, one of which was undertaken in Leeds. The probation officer responsible for the Leeds project was one of my licensed clergy; hence my interest in the matter. The Home Office report of the reparation projects indicated that they were widely welcomed, not least by victims. The idea behind the notion of reparation in this case is that offenders and victims should be brought together. Reparation consists in part of a willingness by an offender to meet the victim, and the victim also has to be willing to take part in the meeting.

The research that has been undertaken shows that there has been a wide welcome for the procedure, certainly on the part of victims. It enables those who are victims to objectify what has happened to them. I have heard stories about people who have been burgled for whom the burglary has been an experience of extreme anxiety and fright. Those who have suffered in that way find that they endure the consequences for days or weeks afterwards. To meet the person who has burgled one enables one to objectify those anxieties and fears and to realise that a particular person was responsible. That enables the victims to come to terms with what has happened. It also enables offenders to personalise what they have done. It is no offence against the state or the community: these are people who have been harmed by their offence. The offender is suddenly able to come to terms with the fact that the offence was against a person.

The experience of reparation gained in those schemes should not be lost. My reason for bringing forward the amendment was to provide an opportunity to consider the notion of reparation and to argue that it ought to be taken into account when mitigating circumstances are considered before sentencing. I am happy to commend the amendment in my name to the Committee.

Lord Richard

None of us could object to the sentiment behind the amendment in the name of the right reverend Prelate. We would not wish to hold up the other amendments. In view of the fact that the noble Earl said that the various points are covered by the new clause there is little more to say.

Earl Ferrers

It is right that the right reverend Prelate should draw the attention of the Committee to the importance of reparation. It is an essential part of the criminal justice system that a person should be in a position to make reparation for what he has done. I can assure him that if that is so it will he taken into account. But, for the reasons which I am sure the right reverend Prelate will understand, I believe that it is desirable not specifically to include reference to that. As I said, if that is done the impression is given that one has referred to one particular mitigating circumstance and thereby might involuntarily exclude others. I hope that the right reverend Prelate will be satisfied with that assurance.

On Question, amendment agreed to.

Clause 2, as amended, agreed to.

Clause 3 [Procedural requirements for custodial sentences]:

Earl Ferrers moved Amendment No. 10:

Page 3, line 17, leave out subsections (1) to (3) and insert: ("(1) A court shall obtain and consider a pre-sentence report before forming any such opinion as is mentioned in subsection (2) of section 1 or 2 above. (2) In forming any such opinion as is mentioned in that subsection, a court—

  1. (a) shall take into account all such information about the circumstances of the offence (including any aggravating or mitigating factors) as is available to it; and
  2. 1031
  3. (b) in the case of any such opinion as is mentioned in paragraph (b) of that subsection, may take into account any information about the offender which is before it.").

The noble Earl said: In moving this amendment I shall speak at the same time to Amendments Nos. 36, 37, 42 and 72. These amendments are mainly of a technical and drafting nature. The existing subsections (2) and (3) are to disappear altogether from Clause 3. These cover the way in which the offender's previous record is to be dealt with. There are identical provisions in Clause 6 with regard to community sentences. It seems to us that rather than repeat the same provisions in Clauses 3 and 6, it would be better to bring them together in a new clause, which appears as Amendment No. 72. There is, however, no change in the wording.

The existing subsection (1) is separated into two subsections—subsections (1) and (2). This is to make a clearer distinction between the purely procedural requirement to obtain a pre-sentence report and the other provisions of the clause which amplify the factors to be taken into account in sentencingsw—subsection (2).

The new subsection (2), which is probably the most important of this set of amendments, introduces what I think is a very useful clarification of the factors which Clause 3 specifies as relevant to sentencing decisions. It makes a clear distinction between factors which are relevant to assessing the seriousness of the offence—for example, any aggravating and mitigating factors—and those which are relevant to assessing the risk of serious harm from the offender. Factors which might aggravate or mitigate the offence would include the offence being premeditated, or the offender being the ringleader, which would be aggravating factors; or, if the offender had acted on impulse or had been led on by more experienced accomplices, these might be mitigating factors. Factors relevant to assessing harm naturally go rather wider because the court must be able to consider all relevant information about the offender, including information about his mental state, his attitude to the offence, and his previous behaviour, in deciding whether he is someone from whom the public needs to be protected. I should mention that factors which are relevant to neither of these, but which may still be relevant in mitigation of sentence (such as a guilty plea) are to be dealt with in the new clause after Clause 23 which deals specifically with mitigation.

Amendments Nos. 36 and 37 do for community sentences in Clause 6 what Amendment No. 10 does for custodial sentences. They make a clear distinction between information about the offence and information about the offender. I do not think that the Committee would wish me to repeat the arguments. They also ensure that, as with the amendment to Clause 3, the courts are required to obtain and consider a pre-sentence report before forming an opinion on the offender's suitability for the particular orders listed in Clause 6(2).

With that explanation I hope that the Committee will agree that these amendments improve the Bill. I beg to move.

The Deputy Chairman of Committees (Lord Alport)

I have to advise the Committee that if this amendment is agreed to I shall not be able to call Amendments Nos. 11 to 16.

Baroness Flather moved, as an amendment to Amendment No. 10, Amendment No. 10A:

At end insert ("and ( ) shall take into account the need to avoid discrimination on racial grounds.").

The noble Baroness said: As the Chamber is in the process of considering far-reaching and crucial changes to the criminal justice system, I beg the Committee to consider carefully the amendment standing in my name on the Marshalled List. I am prompted by my knowledge of the deep anxiety felt by the ethnic minority groups to introduce this amendment for inclusion in the Bill and because I believe that no credible revision of legislation such as this would be complete without categoric revision being made for ethnic groups which now form 4.7 per cent. of the population of this country.

There is no dispute about the importance of the principle and decisions in the criminal justice system must be made without discrimination. Paragraph 1.16 of the Government's White Paper Crime, Justice and Protecting the Public which was published in February 1990 stated that: the rule of law will be maintained only if those charged with criminal offences are treated fairly and justly in the courts. There must be no discrimination because of a defendant's race, nationality, standing in the community or any other reason".

The key question therefore is what would be the advantages of enshrining that principle in legislation. To understand the strength of feeling on this point among many members of ethnic minorities, we need first to appreciate the widespread and mounting concern about the disproportionate number of black people in the prison system. The proportion of the prison population from ethnic minorities has risen from 12.5 per cent. in 1985 to 16 per cent. in 1989, although ethnic minorities constitute, as I said earlier, less than 5 per cent. of the general population. That disproportion cannot simply be attributed to differential crime rates or to the fact that a higher proportion of the black population is in the crime prone teenage groups.

The fact is that the Home Office statistics on the ethnic breakdown of the prison population, first compiled in 1985 and published annually since then, show that members of ethnic minorities entering prison have on average fewer previous convictions than white prisoners and that before conviction they were less likely to receive bail than comparable white defendants. Further, the findings of many research studies contain indications that members of ethnic minorities are treated differently from white people at various stages of the criminal process. As I said on an earlier occasion, if the ultimate purpose of punishment is the rehabilitation of the offender, that will result only if the offender feels that his punishment is just and fair. Distrust of the system leads to resentment and suspicion, which is totally counter-productive.

In recent weeks the judiciary has been the subject of harsh criticism. I do not intend to add to that. But in this climate it is singularly important and appropriate to include an amendment such as this one. It is not suggested that there is any conscious wish to discriminate on the part of anyone working within the criminal justice system, least of all on the part of the judiciary.

Turning to Clause 3, one sees that the judges are being asked to take into account information regarding the circumstances of the offence, including aggravating and mitigating factors. Judges may also take into account any information which is before the court about the offender. Apart from the fact that the judges may not always have obtained a pre-sentence report, I should not have thought that any members of the judiciary would proceed to sentence an offender without taking into account the factors which they are asked so specifically to consider in this Bill.

It seems logical, therefore, that the need to avoid bias on racial grounds should also be added to the checklist. That will demonstrate openly the need for fairness in the treatment of black offenders and send out a very important message to say that there is a commitment on the part of the judicial system to avoid discrimination however or from whatever source it may occur.

I have been told that the judicial oath covers that point. The oath is: To do right to all manner of people after the laws and usages of this realm".

Clearly it covers that situation. But I cannot envisage any situation in which an appeal would be brought on the basis that the judge has not acted in accordance with the oath. I cannot imagine any greater personal attack on a judge than that. Furthermore, if the judicial oath is to be solely relied upon as expressing correctness of approach not much of the recent legislation, let alone other elements of this Bill, would he necessary. I believe that the amendment fits in entirely with the judicial oath and does nothing to detract from it. On the contrary, it serves only to enhance it.

At Report stage of the Bill in another place, the Government amended what is now Clause 79 to require the Home Secretary to publish information annually for the purpose of, facilitating the avoidance by such persons of discrimination against any persons on the grounds of race or sex or any other improper ground".

The phrase "such persons" refers back to the phrase, persons engaged in the administration of criminal justice".

It establishes a need to keep under review procedures and practices which may have a discriminatory effect; and I greatly welcome that. However, the Government were unwilling to accept a case for including any further provision in the Bill.

I reiterate the reasons for supporting the amendment. First, by drawing attention to the issues in the check-list in Clause 3(1) the Government would be making a far-reaching statement about the importance which they attach to the principle of non-discrimination. Secondly, as it stands, the Bill lays down in statute a very detailed set of principles for sentencing covering the use of both custodial and community penalties. Those cover so many other sentencing principles that it would be strange if the principle of non-discrimination were left out. Thirdly, since discrimination can be an unconscious act, it would be advantageous to ensure that sentencers had to stop and think consciously and explicitly about the need to avoid discrimination in their decisions. Fourthly, such a statement in legislation would reinforce the efforts of many organisations and individuals within the criminal justice system to ensure that the system is fair and is seen to be fair. I beg to move.

9 p.m.

Lord Hutchinson of Lullington

I support the noble Baroness's amendment. Perhaps I may ask the Minister some questions on his amendments afterwards.

In supporting Amendment No. 10A I do so as a member of the NACRO race relations committee which for the past five years has been inquiring into racial matters in the criminal process. There is no need to establish that there is racism or racial discrimination in the sentencing process. The great point is, as we discovered, that the ethnic minorities perceive that there is discrimination. It has taken a tremendously long time to convince the different agencies—the judges, the magistrates, the lawyers, the probation officers and even the ushers and other persons working in the criminal justice system—that that is the perception. That factor has been received with surprise; and after a time those agencies have come to accept that it is true. During the past few years they have all taken important, surprisingly excellent, measures to set the matter right. Their co-operation has been extremely good.

There is therefore a need for this declaration. I support in every way what the noble Baroness said in introducing the amendment to enshrine the principle in the Bill. Many people working in the system are clearly still unaware of that perception, and of many disturbing facts, some of which the noble Baroness has referred to. Perhaps I may refer to others.

Twenty-four per cent. of the females in custody are from the ethnic minorities. More defendants from the ethnic minorities are acquitted than white defendants. According to statistics, they receive prison sentences earlier in their careers than white persons. They are stopped and searched more often. They are cautioned less often than white persons. There are fewer pre-trial reports and fewer recommendations on sentences. They are over-represented in the after-care and post-custody supervision. None of that may be due to racial discrimination. It is an extremely complex area. There may be many reasons. However, there are these disturbing facts. Because they exist it would be of the greatest possible assistance if there were a statutory declaration of the kind suggested.

Part I of the Bill emphasises the new framework which is based for the first time on a number of principles. Therefore if those principles are in the Bill, this is another principle which should be included. It would go a long way in giving confidence in the system which has had so many knocks recently. It would show clearly that it is a fair system. That is important in recruitment for the different agencies. That is an extremely important aspect of racial discrimination problems in the criminal process. Until there is real recruitment of the ethnic minorities on the Bench, in the magistracy, in the legal profession, it will always be incredibly difficult to get over the problem. Such a principle is of great importance. I strongly support the amendment of the noble Baroness.

I am in a state of some confusion with regard to the amendments in the name of the noble Earl. Amendment No. 72 inserts the new clause. It is perfectly clear. It states: (1) Subject to subsection (2) … an offence shall not be regarded as more serious for the purposes of this Part by reason of any previous convictions of the offender or any response of his to previous sentences".

And then (3): In so far as the circumstances of any offences of which an offender has been previously convicted are relevant for the purpose of forming an opinion as to the seriousness of the offence, nothing in subsection (2) above—

which I have just read out— shall prevent the court from taking those circumstances into account for that purpose".

Having said that, one goes back to Amendment No. 10 and finds: A court shall obtain and consider a pre-sentence report before forming any such opinion as is mentioned in subsection (2) of section 1 or 2 above".

Presumably that is referring to the same two criteria. It goes on: In forming any such opinion as is mentioned in that subsection, a court … shall take into account all such information about the circumstances of the offence … as is available to it"—

that is, as I read it, the criterion as to the seriousness. Then we come to (b): in the case of any such opinion as is mentioned in paragraph (b) of that subsection,"—

that is, the protection of the public— may take into account any information about the offender which is before it.

Do I read that correctly to mean that in the first criterion you may only look at the circumstances of the offence—that is to say, not the previous convictions of the offender—and that it is only when it comes to the protection of the public that you can look at the previous convictions of the offender? Amendment No. 72 does not seem to say that and I find it extremely confusing. I should be most grateful if the noble Earl could make it clear.

Baroness Carnegy of Lour

I should like to support my noble friend Lady Flather in her Amendment No. 10A, which is an amendment to the Government's Amendment No. 10. It is not usually helpful to put special pleading for particular groups of people on the face of the Bill but I would suggest that this Bill, and in particular this part of it, should be an exception. I note with interest that the noble Lord, Lord Henderson, with all his expertise in these matters, seems to agree with that because his name is on the amendment.

My noble friend Lady Flather made it clear tonight and also in her speech on Second Reading that there is no suggestion at all in her mind of anything deliberately discriminatory about the way the courts deal with ethnic minorities. But there is a feeling, and the noble Lord, Lord Hutchinson, has endorsed it, among those minorities that the way they are treated in the courts from time to time shows bias against them. There are other statistics that have been quoted and other research that seems to bear this out.

In considering Clause 3 of the Bill we are considering the moment when the court decides what a sentence is to be; whether it is to be a custodial sentence and, if it is, its duration. In deciding this, if Amendment No. 10 is accepted the court will have a pre-sentence report before it and will have to take into account the available information on the circumstances of the offence and, if a violent or sexual offence is being dealt with, also information about the offender.

At this crucial point my noble friend is suggesting that the court must be reminded, by putting this on to the face of the Bill, that it must also take into account the need to avoid racial discrimination affecting its decision. As the noble Lord, Lord Hutchinson, has said, no judge would allow deliberate racial discrimination to intrude and, as my noble friend has said, the judicial oath precludes it. But surely, equally no judge could seriously object to this addition to what my noble friend has referred to as the checklist of that which has to be taken into account when passing sentence.

Technically it may not be a necessary addition, but if members of our ethnic minorities need the reassurance that justice is being done, I believe that this amendment to this part of the Bill would help. I hope that the Government will think very carefully about this. I know that so far they have not thought it necessary to take it on board, but I hope that if they do not accept the amendment they may put something else in this part of the Bill to replace it.

Lord Henderson of Brompton

I should like to follow both the tone and temper of the speech of the noble Baroness, Lady Carnegy of Lour. This is clearly not a matter of party politics. I think we all feel that something of this kind ought to go into the Bill and I believe that the noble Baroness, Lady Flather, has put her finger on it by making it a cardinal principle of sentencing and thus has reached the very heart of the Bill, which is the treatment of offenders. I am also attracted to the later amendment, but that is of a rather more general nature and at the moment I cannot see why both should not go into the Bill. I feel sure that the Bill should be informed with the principle of non discrimination, and both Amendment No. 100 and Amendment No. 10A seek to do that very thing.

Like the noble Baroness, Lady Flather, who moved the amendment, I have no wish to impugn the judiciary, or indeed any of the constituent parts of the administration of justice, but I think we can all agree that racial discrimination can be unconscious. It is for that reason that the various government agencies, including the Lord Chancellor's department, the Home Office, the courts and the legal professions themselves, have all been making strenuous efforts over the last few years to combat racial discrimination within the constituent parts of the criminal justice process. They have done it by various means; by recruiting more people from the ethnic minorities, and so on. They have been successful, but not as successful as they would have wished. I am sure that all those who have been engaged in this process will testify to the fact that sometimes they feel themselves facing indifference and hostility—and there is no question about that.

9.15 p.m.

My particular interest in this matter arises because I am chairman of an organisation called Action on Youth Crime. It was formed to try to keep young people, especially the older age group of 16 to 18, out of the criminal justice system. It is formed really from two statutory bodies: the probation service—represented by senior probation officers—and the social services, where we have representatives of the Association of Directors of Social Services, and the principal voluntary bodies concerned with the young and the criminal justice process.

Two years ago we had to face up to the fact that there was so much prima facie evidence of racial discrimination within the criminal justice system that we had to collect together what facts we could from the research that was available. We did that and published a fact sheet in 1989, just about two years ago. We found that what fuelled the feelings of the ethnic minorities was substantiated in the statistics of the various studies that we collected.

The noble Baroness, Lady Flather, has gone into those statistics in some detail and so I do not wish to repeat what she has said. All I wish to say is that two years ago we found what we considered to be irrefutable evidence that, whatever the intentions of the no doubt extremely fair and well-minded people who run the criminal justice system, the net result was that there appeared to be discrimination. That amply seemed to justify our bringing these facts before the public, because if there was discrimination it gave full justification to the legitimate fears of the ethnic minorities that they were not being fairly dealt with.

The figures are popularly supposed to show that young black people—and I am talking only about young black people—are more prone to commit crime than white people. That clearly is not so. Instead, the evidence shows that young people from the black ethnic minorities and from the ethnic minorities who offend are more likely to be imprisoned. The conclusion of our close examination of the statistics was that they are more likely to be imprisoned. They are not treated, no doubt unconsciously, on a parity with white people.

I shall briefly illustrate the position. We found from a survey of youth custody trainees from south-east London, for instance, that Afro-Caribbean trainees in youth custody training programmes had fewer previous convictions, and were less likely than their white peers to have had a probation or supervision order. That is a telling finding.

Again more recently than that, in 1989, the West Yorkshire Probation Service found that probation officers' recommendations to the courts for probation and community service orders were far less likely to be accepted for Afro-Caribbean and Asian offenders than for white offenders. I choose only two of the many telling statistics which have been brought together in the factsheet produced two years ago. I shall not elaborate on those because the facts speak for themselves and they speak also for the need for this amendment and Amendment No. 100.

The high custodial sentencing rate for young offenders from ethnic minorities must disturb us all, especially as we all believe in racial justice. Variations in sentencing do not automatically prove that discrimination takes place. By and large, that can be explained by variations in the seriousness of offences. I do not deny that. However, the whole weight of evidence goes the other way; that despite all the mitigating explanations which can be thought of, nevertheless there is ingrained in the system somewhere—perhaps throughout, I do not know—discrimination which is so clearly demonstrated by those statistics.

In addition, there is clear evidence that young black people are more frequently stopped by the police than young white people. Young black offenders are imprisoned with fewer previous convictions than young white people and the courts accept recommendations for non-custodial penalties less often for young black offenders than for young white offenders.

I submit that if all those considerations are taken together, something is badly wrong with the operation of our legal system. An amendment such as that moved by the noble Baroness, Lady Flather, is necessary to ensure that the criminal justice process deals equitably with young offenders from all ethnic backgrounds and gives confidence to those people whose mothers and fathers, cousins and kin have doubts. Those doubts about the fairness of our criminal justice system simply must be dispelled so that they will have confidence in it as well as the white community.

Lord Elton

The noble Lord, Lord Henderson, has made a very powerful case which will be found more powerful on reading. I commend to the Minister the statistics quoted.

I was a reluctant convert to the view that there appears to be an element of discrimination against ethnic minority offenders in our criminal processes. In his reply, I ask my noble friend to consider what are the social effects of that. The fabric of our society is only sustainable if the mass of society consents to the criteria on which justice is administered. If a particular discrete, identifiable and self-identifiable sector of that society believes that there is a system of justice which is just for other people but not just for them, whether or not that belief is well founded, the effects upon our society as a whole will be very damaging because those people will see the judicial system not as a means of maintaining law and order but as a means of keeping "them" down and "us" up. That is a recipe for internecine warfare and is very dangerous.

Therefore, it is necessary and timely that a new gesture be made by the Government that they subscribe to the impartiality of justice as we know in our hearts that they do. What that gesture should be is another question. I have doubts about the amendment so ably and eloquently moved by my noble friend Lady Flather.

I see an apparent discrimination at many points in the criminal justice system, and not simply in the sentencing process. For instance, one of the statistics which I did not hear, and may have missed in the contribution of the noble Lord, Lord Henderson, was in regard to the disproportionate number of black offenders who are remanded into custody when they are charged with the same offence and have the same background as white offenders. In other words, there needs to he a gesture to commit us to equality of justice for all members of our community which goes wider than just sentencing.

I looked at Amendment No. 100. It lays upon the Secretary of State a slightly indeterminate duty which would be impossible for him to discharge. I do not see a remedy there. I merely want to endorse the view that a belief that racial discrimination exists within the criminal justice system is not an eccentric view; it is not a Left-wing view; it is not a prejudiced view. It is a view which flows naturally from looking at the statistics by people who were initially disposed to discount them.

I ask my noble friend to consider between this stage and the next whether he can devise something more effective than that which is now before us.

Lord Hutchinson of Lullington

Before the noble Lord sits down, would he not agree that half a loaf is better than no bread?

Lord Elton

I find it dangerous to agree with any general principle uttered by the noble Lord without great thought. I put against it the expressio unius est exclusio alterius principle mentioned earlier. If we were speaking of comestibles, I would agree with the noble Lord; we are talking of justice.

Lord Morris of Castle Morris

The noble Lord is very wise. I spoke on this question at Second Reading, as did many other noble Lords. There is a great deal about which there is general agreement. It is not a party matter and there need be no controversy whatever. As the noble Baroness, Lady Flather, said, there is no dispute about the importance of the principle that decisions in the criminal justice system must be made without discrimination. The central point before us is what the advantages would be of enshrining that principle in legislation and at this point in the Bill.

A case can be made for enshrining the amendment proposed by the noble Baroness. I looked at the whole of our debate on Second Reading and I read it all over again. One passage struck me as central to the entire matter. It arose in the speech made by the noble Baroness, Lady Flather, and perhaps I may remind the Committee of it. She said, At present there is a strong suspicion among minority groups that they are unfairly treated by the courts. That feeling has built up over a long period. We cannot write it off simply as a figment of imagination. There is a substantial body of research which not only supports that view but shows that matters are becoming worse. I do not speak of the level or types of crime but of a comparison of the treatment between white and black offenders on a like-with-like basis. Studies show that black people are more likely to receive custodial sentences as opposed to community service or probation. They are likely to receive custodial sentences at an earlier stage of offending than their white counterparts. They are also much less likely to receive bail than their white counterparts".—[Official Report, 12/3/91: col. 144.]

The issue could hardly be put more clearly or more sensitively than that. But the Bill as it has progressed is not equally clear. On that same Second Reading I asked three questions regarding Clause 79(1). I asked, who monitors, and how, those key decisions in the criminal justice system so that the Secretary of State is enabled to publish relevant information? Secondly, will it, or will it not, be a duty for the criminal justice agencies to take remedial action if the published information suggests that discrimination has taken place'? Thirdly, if discrimination on racial grounds were alleged, what recourse would be open to the individual?" [Official Report, 12/3/91; col. 131.]

As the Bill has gone on we have been unable to resolve those questions. I have not yet received any satisfactory answer to them. That is why I support this amendment which makes one clear, powerful statement. Clause 79(1) (b) is welcome so far as it goes, but it does not go far enough. The Government were unwilling to accept the case for including in the Bill any further provision on the issue. At Report stage Mr. John Patten, the Minister of State at the Home Office, said: I have no doubt that any unfair discrimination by those working in the criminal justice system would be unlawful ... The legal position is clear and for that reason we see no merit in a provision that puts a duty on sentencers and others not to discriminate. That would add nothing to the present legal position". [Offical Report, Commons, 20/2/91; col. 337.]

Surely, there is a concealed non sequitur here. The legal position may be perfectly clear but it may also be forgotten, scanted, overlooked or under-emphasised. That is what lies at the heart of the proposed amendment. The amendment would act as a discipline, an aide-mémoire, as a drill in priorities and as part of the checklist of the sentencer. The other great virtue of the amendment is that it is a declaration. If it appears at this point in the Bill it will reassure people, particularly black people. They will be able to point to it. It will increase their trust which has been too battered recently by the criminal justice system of this country.

It has been said, and I think it true, that discrimination can so often be unconscious. As the noble Baroness, Lady Flather, said, it would be a great advantage if we could ensure in the Bill that sentencers had to stop and think consciously and explicitly about the need to avoid discrimination in their decisions. Discrimination can be unconscious. All of us live by a shorthand of assumptions. We think that Welshmen sing all the time and love rugby football. I know hundreds and thousands who cannot sing a note and who loathe the wretched game. We know the stereotype that women are muscularly less powerful than men. We know of occasions when that is not true. We work on the stereotype that children need protection all the time because they are innocent. Those of us who are parents as well as those of us who are lawyers know that that need not always be the case.

Stereotypes and unconscious prejudices infect every one of us. For that reason it would be good to declare in the Bill our determination to uphold the principle that decisions in the criminal justice system must be made without discrimination and to give to sentencers the personal discipline of including that in their checklist of things to be taken into account before sentence is decided and obliging them to examine their consciences every time on that question. I support the amendment.

9.30 p.m.

Lord Beloff

Perhaps I may venture briefly to utter a dissenting voice. I do not disagree for a moment with any of the statistics or other observations that have been made about the way in which the criminal justice system may work to the detriment of members of the ethnic minorities. Nor would I disagree with the view that this is a blot on our system of criminal justice. One has to ask oneself whether the suggested remedy is not a danger in that it attempts, as the noble Lord, Lord Morris of Castle Morris, described so eloquently, to delve into people's conscious or unconscious motivations. If we accept this or a similar amendment, we are saying that those who pass sentence—our judges and magistrates—have innate prejudices against which it is necessary to warn them.

I should have thought that this is a dangerous incursion into the area of private conscience. The law can deal with objective matters. The law can say that such and such a person is entitled to such and such treatment. That, after all, has been the basis of our race relations legislation. But to say that a judge must consider before he passes sentence whether he is being motivated by considerations of prejudice—if racial, why not religious considerations or considerations of gender—is a different matter. The example of the United States in this respect is quite important. There are all kinds of possibilities for lack of fairness. To introduce into our statute law—into a measure as important as a Criminal Justice Bill—the suggestion that those who administer justice must be presumed to have prejudice may, far from giving confidence to members of the ethnic minorities—I agree that the perceptions are as important as the facts—accentuate their suspicions. They will say that the Upper House, or in the end Parliament as a whole, agrees that there is prejudice in the judiciary. We ought to think long and very clearly before we attack a grave and important problem in this way.

Lord Pitt of Hampstead

Blacks, and particularly black youths, are stopped and searched more often than white youths. That is confirmed by the statistics. When they are brought before the court they are more likely to be remanded in custody than given bail. What is more, the statistics show that those same people who are remanded in custody are often acquitted when they are tried. If convicted they are often not given custodial sentences.

With this Bill we are trying to reduce the number of people who are given custodial sentences who should not be given them. In Amendment No. 10 we state that the judge should take into account certain matters before deciding whether to give a custodial sentence. Bearing in mind the statistics, is it not sensible to say to the judge that he should take account of the reports, he should take account of the circumstances of the offence and the state of the offender and that he should also bear in mind the need to avoid racial discrimination. That seems to me to be eminently sensible.

The issue would probably not arise if we did not have such statistics. However, we do have them. Therefore, although it may not necessarily be racial discrimination, there is a possibility that it could be. In the circumstances, it is sensible merely to say to the judge, "When you are about to decide whether to impose a custodial sentence you should consider the need to avoid racial discrimination". That is really what the amendment is saying and all that it requires. I do not understand why we have had all this hullabaloo.

From everything that I have heard, I gather that everyone would like the judicial system to function without there being any discrimination on the grounds of race. If that is what is really wanted, then to suggest to the judge that he should consider that matter when he is thinking about other aspects is eminently sensible. I cannot see any reason why the amendment should not be accepted. I hope that the Minister will say that the Government are happy to accept it. One assumes that they would like to try to remedy what appears to be a defect in the judicial system.

9.45 p.m.

Lord Renton

The noble Lord, Lord Pitt, began his remarks by pointing out—and I do not dispute what he said—that black people are arrested, stopped and searched more often than white people. However, I am afraid that the amendment before us does not cover that issue. I have a great deal of sympathy with the motives of my noble friend Lady Flather in moving Amendment No. 10A. Surely we all agree that it is important not only that justice should be done but that it should also manifestly be seen to be done to all people and on all occasions.

Evidence has been put before the Committee about the results of the present sentencing policies of the courts, especially as regards magistrates' courts. If he is able to do so, I hope that my noble friend Lord Ferrers will be able to reassure my noble friend Lady Flather, and the rest of the Committee, on the facts which she and others have put forward.

However, having expressed my sympathy with my noble friend's motive, I must say that I doubt whether her amendment serves her purpose. If there is a need for such an amendment, surely it should apply right across the board. For that reason I prefer Amendment No. 100 which is also tabled in her name and which I believe goes much further. I do not believe that it quite covers all the issues involved, but it could be said to cover the points which the noble Lord, Lord Pitt, started to raise.

As I said, I doubt whether Amendment No. 10A really serves my noble friend's purpose. I also doubt whether there is a need for it and whether it is technically well based. Amendment No. 10, deals with the matters which the court should consider before sentencing people to custodial sentences. I should point out at this stage that I support this amendment moved by my noble friend Lord Ferrers.

Under the Bill as it stands, and under Amendment No. 10, the matters in question relate to the "circumstances of the offence"—that must always be so—the past record of the offender-that must be so—and other relevant information about him. We see that in new subsection (2) (b) which states that the court, may take into account any information about the offender which is before it".

The fact that the offender is a black person, or, as my noble friend Lord Beloff reminded us, a person whose religion may differ from that of those who are sentencing him; or, if I dare say it, an Irish person or a Welsh person—

Noble Lords


Lord Henderson of Brompton

I thank the noble Lord for giving way. As far as we are aware, there is no evidence of any discrimination against Irish people or Welsh people. What we have is evidence that there is discrimination, or so it appears, adduced by the noble Baroness and myself, against black people. So there is no need to have an amendment to prevent discrimination against atheists or Welshmen.

Lord Renton

The assumption that the noble Lord, Lord Henderson of Brompton, has asked us to accept may be the right one, but is one not entitled to look at the matter from a broader point of view? That is what I and my noble friend Lord Beloff have been inviting the Committee to do.

The phrase "any information about the offender" could include anything which had to do with avoiding discrimination against him or her on racial grounds. To that extent, my noble friend's amendment would not be necessary. However, when deciding whether to impose a custodial sentence, which is only one part of the work of the courts, for the avoidance of racial discrimination. That might give the unfortunate impression that we do not attach as much importance to the need for the court to avoid racial discrimination on other occasions.

I have great sympathy with what my noble friend Lady Flather has put forward, which has been well supported. I am anxious to hear what facts my noble friend the Minister can give, but as a means of achieving its object, I doubt whether my noble friend's amendment is the best way to do so.

Lord Pitt of Hampstead

In view of the evidence that black people are more likely to receive custodial sentences than non-custodial sentences, does the noble Lord believe that it might help if the judge has to take into account that he should try to avoid racial discrimination? I put the point no stronger than that.

Lord Renton

I should not repeat the views that I have already put before the Committee, but if the noble Lord cares to study Hansard tomorrow, I hope that he will find that I have given good reasons for saying that if it is necessary to have a provision written into the Bill to avoid racial discrimination, it should go beyond imposing custodial sentences.

Lord Pitt of Hampstead

I ask this specific question: does the noble Lord accept that the evidence suggests that blacks are more likely to receive custodial sentences than non-custodial sentences? This section of the Bill deals with what ought to be taken into account before custodial sentences are imposed. To put it at its lowest, therefore, does he not think that the amendment might help?

Lord Renton

I think I ought not to try further to convince the noble Lord by repeating myself.

The Lord Bishop of Ripon

I wish briefly to add my support to the amendment in the name of the noble Baroness, Lady Flather. I listened with care to what Members of the Committee said, particularly the noble Lord, Lord Beloff. It seemed to me that he was talking about people's perceptions of the law but was not taking sufficient account of what has been said on all sides of the Committee about the statistics. I believe that analysis and anecdote come together here. The analysis is quite clear on where the statistics take us. That is borne out by what happens when we meet black people, particularly black youngsters.

I listened with great attention to what the noble Lord, Lord Elton, said. I underline the points he made on the social fabric and the way in which the perception of black people as being part of the social fabric is undermined. In addition, their individual self-understanding is undermined. I have known people working in bail hostels for black youngsters, trying to bring home to them the gravity of the offences they have committed. It is extremely difficult to do that against the background of feeling that the system is weighted against them. The bitterness in them makes it extremely difficult to help them face what they may have done.

I hear what the noble Lord, Lord Renton, said about it only concerning sentencing, but taken in conjunction with Amendment No. 100 this amendment provides a broader way of looking at the problem. I should be happy if somebody could suggest a better way of incorporating the proposal in the Bill, but if there is none then it is important that this amendment should be accepted.

Earl Ferrers

My noble friend Lady Flather has shown only too clearly how important it was for her to put down her amendment. She has touched on a very important point and I am glad that she has brought it to the Committee this evening.

In all walks of life we have constantly to be on our guard against racial discrimination. We must perpetually work and aim to avoid it. We do not necessarily achieve that by passing laws, it is something for which we have to strive in all that we do. I agree with the noble Lord, Lord Morris of Castle Morris, that this is no party matter; it affects us all and we are united in wishing to ensure that there is no racial discrimination.

My noble friend is anxious to ensure that there is no unfair discrimination on the grounds of race in determining whether or not to impose custodial sentences. Fair treatment for all those who come before the courts is an issue of vital importance. It goes without saying that there can be no room for racial discrimination or any other unfair discrimination in any part of the judicial system. The Government are determined that there should be none and those who work in the judicial system are of the same opinion. There is, therefore, no disagreement with the principle that the amendment is intended to promote.

However, I am bound to say that I have some anxiety about the nature of my noble friend's amendment. My noble friend Lord Elton was quite right that society only works if there is an acceptance of justice throughout it. It is not right that, as he put it, there should be a "them" and "us" attitude. It is appalling that there should be such an attitude, and I agree with my noble friend Lord Renton who said that justice must not only be done but must be seen to be done. The noble Lord, Lord Morris of Castle Morris, referred to the comments of my right honourable friend Mr. Patten when he said that there was no point in including in the Bill the need not to discriminate as that is the whole ethos behind the entire court system.

The amendment would require the courts to take account of, the need to avoid discrimination on racial grounds",

when deciding whether or not to impose a custodial sentence. That is an understandable and worthy concern but it would simply restate what is already a matter of law; that is, that sentencers must treat people fairly in passing sentence. I agreed with my noble friend Lord Beloff when he questioned whether we were right to make sentencers delve into their minds and ask themselves whether there was any racial prejudice in their minds before they imposed sentences. There should be no racial prejudice in their minds; nor should there be any religious prejudice. All judges and magistrates have to take the judicial oath, as my noble friend Lady Flather said. That oath places a clear duty on them to act rightly in all cases without fear or favour, affection or ill will. The principle applies to all sentencing decisions and not just to decisions on custodial sentences.

My noble friend Lady Flather provided various statistics. I believe it was the noble Lord, Lord Hutchinson of Lullington, who said that 24 per cent. of females in custody came from ethnic minorities. I believe the noble Lord also said that people from ethnic minorities were stopped and searched more often and were released less frequently than people from other groups. The matter of statistics concerned the noble Lords, Lord Hutchinson, Lord Henderson and Lord Pitt, my noble friend Lord Elton and the right reverend Prelate the Bishop of Ripon. The general thrust of their remarks was that statistics show discrimination. I do not believe the statistics show that. They may show who has been convicted and who has been kept in custody. But that does not necessarily mean they show that discrimination has occurred. We must be a lot more sophisticated in the interpretation of statistics before reaching such conclusions. The noble Lord, Lord Hutchinson, was right to say that it is a complicated matter.

Lord Pitt of Hampstead

I, for one, did not assert that the statistics show there is discrimination. What I did say was that they raise a suspicion that discrimination may exist. I do not think one needs to go further than that. Certainly, if the statistics are before one, one must ask oneself what they mean and why they are as they are. The possibility that there may be discrimination must arise in one's mind.

Earl Ferrers

I apologise to the noble Lord, Lord Pitt, if I misinterpreted his remarks. I can understand that the noble Lord thinks the statistics may raise certain queries in his mind and in the minds of others. However, I can only repeat what I said. One must adopt a much more sophisticated approach to statistics before reaching the conclusion that they reveal discrimination.

I agreed with my noble friend Lord Renton when he said that, technically, the amendment was not well based. It is not clear, for example, what would be required of sentencers for them to meet the procedural requirement that the amendment imposes on them. The other procedural requirements in Clause 3 of the Bill all involve the courts in considering particular kinds of information, such as a pre-sentence report, information about aggravating or mitigating circumstances, or information about the offender, for example, his attitude to the offence. However, the requirement to avoid discrimination would not be linked in a similar way to any clear and practical steps. I suggest that it would not sit easily in that position.

There is already provision in Clause 79 of the Bill on the need to avoid discrimination in the criminal justice system. The provision was included in another place because of the anxieties that were expressed about racial discrimination and the need to avoid it. The provision was specifically included for that purpose. It places a duty on the Secretary of State to publish annual information about the position of ethnic minorities and women in the criminal justice process. That is the most helpful and constructive way of reinforcing the principle of fairness which is already reflected in the law and of supporting all those working in the criminal justice agencies in meeting that need for fairness. If a duty is imposed upon the Secretary of State to publish that annual information the process of gleaning that information will ensure that those who administer the law in all parts of the criminal justice system will do all that they can to avoid any form of racial discrimination.

The noble Lord, Lord Hutchinson, asked me a specific question with regard to previous offences. The situation is not quite as the noble Lord, Lord Hutchinson, understood it. When the court is considering the seriousness of an offence under subsection (2) (a) of Amendment No. 10, it will be able to take account of previous offences only as permitted in subsection (2) of Amendment No. 72. When the court is considering the circumstances of the offender under subsection (2) (b) of Amendment No. 10 for the purpose of sentencing on grounds of protecting the public, it is not restricted by the provisions of Amendment No. 72 as to the regard which can be had to the past record. If the past record indicates that the offender is a persistent offender whose activities put the public at risk it should be possible to pass a sentence which protects the public.

My noble friend Lady Flather has raised a very important point upon which there is no difference of approach on any side of the Chamber. However, my advice to the Committee is that it would be wrong to incorporate that type of amendment in the Bill at this point as it would not sit conveniently or properly in the Bill. I assure my noble friend that the requirements on the criminal justice system to avoid racial discrimination are considerable and have been enhanced by the amendment which was put down in and accepted by another place. I hope therefore that my noble friend will not wish to see her amendment, important though it is, incorporated in the Bill because I do not believe that that would be the right thing to do.

10 p.m.

Lord Hutchinson of Lullington

Before the noble Earl sits down, perhaps I may ask him one question. He mentioned Clause 79(1) (b). Does that envisage the monitoring of sentences in the courts for the purpose of determining whether there appears to be some form of discrimination? If it does, that information would be of assistance in relation to this question.

Earl Ferrers

I shall have to take advice upon that matter because I would not like to mislead the noble Lord, Lord Hutchinson. Perhaps I may write to him on the matter.

Baroness Flather

I am grateful to the noble Lords who have taken part in the debate and for the support that I have received. I am pleased to note that there are noble Lords on all sides of the Chamber who are anxious about the issue. It is very good to have had a debate on the subject.

There are a few points which I should like to take up; and it would be wrong of me if I did not do so. One of the major matters raised by my noble friends Lord Elton and Lord Renton and, indeed, by my noble friend Lord Ferrers was whether this was the right kind of amendment in the right place. I shall not stick by a form of words in a particular place. It is the sentiment which I wish to see incorporated in this very important Bill. I shall not stand by eight or 10 words and say that they have to go in this place or that place.

If my noble friend Lord Ferrers had given me some hope that he would look at the matter again I should have felt a great deal better. He has not. Therefore I am deeply concerned and I may have to bring something back at the next stage of the Bill. I should greatly appreciate any help from noble Lords or perhaps noble and learned Lords who are better able than I to do the drafting. I shall await their help.

At this stage I shall not let go of the point made by my noble friend Lord Beloff. He said that private conscience is not in the public domain, or something of that nature. Personally I believe that if private conscience leads to groups of people being treated adversely, it does become part of the public domain and surely a warning would not be out of place.

The noble Lord also mentioned gender and religious grounds. I include both those matters with racial discrimination. Any form of discrimination, whether it is on grounds of gender or religion cannot be acceptable. If there are people in high positions who can affect adversely the lives of groups of people because their private consciences are out of the public domain, then something is seriously wrong. That should be considered carefully.

I am sorry that my noble friend Lord Ferrers felt that he should support that sentiment. If that is so, I do not know why in the Bill there are so many strictures on the judiciary as to what they should and should not do. I urge my noble friend to think again and consider bringing some provision into this Bill. It is not about whether criminal justice is in fact above all this argument, whether it is discriminating or not discriminating; it is a question of confidence. The confidence is not there. There are statistics which prove that that lack of confidence is justified and there is deep anxiety over this matter. I should have thought that the draftsmen whom the Government have at their disposal could find a suitable place to slot in something.

I am not very keen on our next amendment, Amendment No. 100, for the same reasons that were given by my noble friend Lord Elton. Although I am a very poor lawyer, I believe that the judiciary should not be under the thumb of the Executive. That would be a bad move forward in all respects. But that is the next point, which is there as a declaratory amendment. I hope that we do not have to move it at some other stage. I should be very grateful to my noble friend if he would think again on this matter. I do not wish to divide the Committee. I beg leave to withdraw the amendment at this stage.

Amendment No. 10A, as an amendment to Amendment No. 10, by leave, withdrawn.

On Question, Amendment No. 10 agreed to.

10.10 p.m.

The Deputy Chairman of Committees (Lord Cocks of Hartcliffe)

Amendment No. 10 having been agreed to, Amendments Nos. 11 to 16 are pre-empted. We move to Amendment No. 17.

Earl Ferrers moved Amendment No. 17:

Page 3, line 33, at end insert: ("(3A) Without prejudice to the generality of subsections (1) and (2) above, before passing a custodial sentence in a case to which section 1 or 2 above applies on an offender who is or appears to be mentally disordered, a court shall consider

  1. (a) any information before it which relates to his mental condition (whether given in a pre-sentence report, a medical report or otherwise); and
  2. (b) the likely effect of such a sentence on that condition and on any treatment which may be available for it.").

The noble Earl said: In moving this amendment, I shall speak also to Amendments Nos. 23, 24, 25 and 26 and to Amendments Nos. 71, 74 and 96.

Lord Richard

Perhaps the noble Earl will allow me to intervene. As I understood the grouping—I can be wrong about these matters—the four amendments grouped were Amendments Nos. 17, 23, 24 and 74. That was one grouping. A subsequent grouping was Amendments Nos. 25, 26 and 46. Is that right?

Earl Ferrers

I am most grateful to the noble Lord for coming to my rescue. He is quite right. I looked at some figures which had been photocopied and were not clear. I am deeply grateful to him for his rescue. I hope that he will continue in that spirit in relation to all other matters.

The problem of mentally disordered offenders is an exceedingly important and difficult one. The fact that the amendments which we are now considering come from all sides of the Chamber shows that this is not a party political matter, but one where we are all searching to find the right way forward. We all agree that people who ought to be receiving health or social services treatment should not find themselves in prison.

These are real problems, and they must be tackled properly. Legislation has a part to play, but to a large ,extent the problems are practical ones. If the practical measures to overcome the problems do not keep pace with the legislative changes, we shall end up making matters worse, not better.

For example, one way of keeping mentally disordered offenders out of prison is to ensure that the court has psychiatric reports which will identify those offenders who ought to be in hospital instead. But as things stand at the moment, a remand in custody will often be needed to enable the psychiatric report to be prepared. The offender therefore ends up in prison anyway. That is not what we want.

That is where practical measures come in. There are a number of imaginative schemes in operation around the country where duty psychiatrists are on hand to attend the court, interview the defendant, and present an immediate psychiatric report—thus avoiding a remand in custody. But at present this falls well short of a comprehensive national scheme. We hope that it will be possible to develop such a scheme, but the number of psychiatrists qualified in such work is at present limited.

It is against that background that the Government's approach—reflected in the amendments standing in my name—is to give legislative encouragement to the practical steps which are in hand to improve matters for mentally-disordered offenders. The amendments standing in the names of my noble friends Lady Faithfull, Lord Mottistone, the noble Baroness, Lady Seear, and the noble Lord, Lord Richard, adopt a rather more prescriptive approach. I understand why they would like to push things along more firmly through legislation. However, I hope to persuade them that this is not necessarily the best course and that there are dangers in doing so.

Under the present legislation, an order for the detention of an offender in hospital can be made only when the doctor or the hospital has agreed to accept the patient and is able to admit him or her within 28 days. The introduction of a power to direct a hospital to take a mentally disordered offender, irrespective of whether a bed was available or the hospital was the most suitable, would result in several undesirable consequences. These include the fact that offenders might be placed in inappropriate hospitals. For example the levels of security might not be adequate. There could be a disregard for the clinical judgment of the doctors concerned. They would be forced to take patients whom they may consider not treatable or unsuitable for their unit. The therapeutic relationship between patient and doctor, which is vital for the effectiveness of treatment, could be undermined. Hospital resources could be pre-empted for those who have committed offences, possibly at the expense of the services which could be provided for other mentally disordered patients who have not committed offences.

I believe that the power would prove unworkable. A court would not know all about the facilities and services available for the care of mentally disordered offenders. It would have to rely upon the doctor providing the medical opinion and upon the responsible authorities. We do not think that the court should be able to ignore that opinion and make its own decision about which hospitals he should be sent to and what kind of treatment he should receive.

We should remember the wise words of the Butler Committee that, psychiatric hospitals would find it impossible to do their work if they were forced to accommodate all such cases as the courts thought right to send them, regardless of their ability to provide suitable treatment".

That being so, our priority is to get the practical arrangements right, rather than to rely on legislative prescription. Our policy remains that mentally disordered offenders should be treated and cared for by the health and social services system rather than in the penal system. We are actively encouraging the various agencies concerned (through, in particular, the Home Office Circular 66 of 1990) to collaborate effectively and to develop systems and services which enable more people to be diverted in this way. I fear that giving the courts powers which they could use in disregard of clinical judgments will serve only to undermine that necessary co-operation.

As your Lordships may know, my right honourable friends the Home Secretary and Secretary of State for Health have established a major review of health and social services for mentally disordered offenders which is assessing the range, pattern and operation of these provisions. This is due to be completed by the middle of next year. I do not think that we should prejudge or try to pre-empt the outcome of the review. It will pull together developments such as the Woolf Report, the scrutiny of the Prison Medical Service, and the reports by Judge Tumim on prison suicides and on Brixton. Bold decisions may well he needed, but these must also be carefully considered.

This work will also build on what has been achieved in recent years: we now have some 650 permanent or interim regional secure unit places in England that simply did not exist in 1979. Health authorities have plans to provide some 100 further places. In September of last year, there were 76 consultant forensic psychiatrists. Twenty years ago there were just two.

I am afraid I must also draw to your Lordships' attention some further problems with the amendments which have been proposed. I will refer to these briefly.

Subsection (1) of the new clause in Amendment No. 23 proposed by my noble friend Lady Faithfull, the noble Baroness, Lady Seear, and the noble Lord, Lord Richard, would forbid any custodial sentence or remand in custody if the offender is found to be mentally disordered. The amendment proposed by my noble friend Lord Mottistone would also make it extremely difficult, if not impossible, to pass a custodial sentence on such an offender. I am afraid that this is too rigid. We cannot exclude the possibility that in some cases a custodial sentence or remand in custody may be the only way to protect the public. The important thing is to ensure that the courts give proper weight to the offender's mental state before deciding what to do, as they would be required to do under the Government's amendment.

I hope that this explanation will serve to show why the Government would have difficulty in accepting some of the amendments which have been tabled from both sides of the Committee. It is clear that we are all united in looking for the best possible way forward. I believe that the government amendments offer that way forward. They make it clear that the courts should consider the information which is available about the offender's mental condition, and that they should not pass a custodial sentence if that would adversely affect an offender's mental condition and his treatment. Subsection (3) of the new Clause 23, which we discussed earlier, also makes it clear that the courts are not required to pass a custodial sentence on a mentally disordered offender, even if the offence which he has committed would normally attract such a sentence. I assure your Lordships that the Government will continue to pursue all the practical measures open to them to keep mentally disordered offenders out of the prison system. I beg to move.

10.15 p.m.

Lord Morris of Castle Morris

Many of us, for various reasons, on this side of the Committee find it difficult to approve of Amendment No. 17. We welcome the concern and the thrust of the amendment but we feel that the thrust lacks a certain necessary vigour and that the amendment does not penetrate deeply enough. Many of us on this side of the Committee would prefer Amendment No. 23.

However, the effect of what is before us in subsection (3A) (b) is in itself interesting. It seems to many of us to be impossible for a court, if it has no psychiatric assessment available to it, to regard itself as capable of considering the likely effect of a custodial sentence upon a defendant's mental condition and upon any treatment available for it. The court is not qualified to do so. Consideration of the impact of penal custody on mental disorder would appear to be a technical, medical and professional question, on which a court would need a professional psychiatric opinion. If this is indeed the intention of the Government's amendment, it would seem to require the commitment of considerable additional resources to encourage early psychiatric assessments in order to avoid the scandal of prolonged medical remands in custody.

The amendment may make it necessary for the Government to approve immediate spending on duty psychiatric rota schemes for all courts which need them. If such schemes are not introduced, courts will either make their own crude and inexpert judgments on the impact of custody or defendants will be unnecessarily and unfairly remanded to prison custody for an opinion to be sought.

However, I take heart from reading on the tapes at about 5 o'clock this afternoon that in another place the Private Member's Bill sponsored by the honourable Member for Ryedale, which gives new legal safeguards to defendants suffering from mental handicap, completed its Committee stage and has been promised the full support of the Government. I find that fact fortifying and refreshing.

Nevertheless, the new subsection (3A) still contains the words "before passing a custodial sentence", and so does not address the essential problem that courts send such offenders to prison because the National Health Service will not take them and not because the court has failed to consider the ill effects of imprisonment on someone who is mentally disordered. Therefore, the Government's amendment is no substitute for the wider clause on mentally disordered offenders contained in Amendment No. 23.

At the heart of that amendment, and fatally lacking in Amendment No. 17, is the determination which would prohibit courts from sentencing or remanding mentally disordered people to custody and which would require the National Health Service to accommodate any mentally disordered offender on whom a court makes a hospital order. There are strong indications that the number of mentally disturbed people in the prison population has increased in recent years. During the year 1989–90 16,898 prisoners were referred to psychiatrists, 38 per cent. more than in 1987–88, during a period when the prison population as a whole decreased slightly.

Professor John Gunn of the Institute of Psychiatry recently carried out a survey for the Home Office of a 5 per cent. sample of sentenced offenders serving six months or more. The report of the survey will be published later this year, I gather, but some of the findings were summarised in a paper which Professor Gunn delivered to the Mental Health Foundation in September 1990. The sample comprised 1,365 adult males, 404 male youths and 273 females. Around one-fifth of the sample were found to have some degree of mental disturbance. Thirty seven—that is 1.8 per cent. of the total sample—were suffering from psychoses; 144, or 7 per cent., from neuroses; 221, or 10.8 per cent., from personality disorders; and 22, that is 1 per cent., from organic disorders. Sixty-three of these cases were assessed as needing treatment in special hospitals or the National Health Service.

If those proportions were true for the total prison population, which is currently some 45,000, this would mean that over 9,000 prisoners could be mentally disturbed, including over 1,300 in need of hospital care. May I ask those Members of the Committee who have experience of visiting prisons to agree with me that that would not be out of kilter with what we see as we go around?

Prison is the worst possible place for someone with a mental disorder. Even when psychiatric services are provided in prison, the benefits are offset by poor physical conditions and very restricted regimes. The gloomy, insanitary conditions inside large Victorian prisons, together with impoverished regimes which often mean that mentally disturbed prisoners are locked in their cells for much of the day, are likely to exacerbate the mental health problems of prisoners prone to depression and those who have a disorder with a depressive element. It is not surprising that Judge Tumim is anxious about the suicide rate because such conditions can increase the risk of suicide or self-mutilation among those prisoners. A research study by Dr. Enda Dooley published in the British Journal of Psychiatry in 1990 examined the record of prison suicides in England and Wales between 1972 and 1987. He found that mental disorder was among the reasons for suicide in 22 per cent. of cases; over one-third of prisoners committing suicide had a previous history of psychiatric contact; over one-quarter had previous in-patient admissions; and 23 per cent. had received some form of psychotropic medication in the month before suicide.

Those figures speak for themselves. They are the cause for Judge Tumim's anxiety. By prohibiting the use of prison for mentally disordered people, Amendment No. 23 would provide a powerful incentive to speed up developments and to the National Health Service to get its house in order on this matter. It need not become law immediately. The Government could announce that they will bring it into force in perhaps five years' time to allow for the necessary alternative arrangements to be made. However, ultimately it is no more justifiable for the NHS to refuse to treat a patient suffering from a mental disorder than to treat an accident victim or someone with a serious physical illness. Amendment No. 23 enshrines that basic principle in a binding statutory form.

Perhaps I may conclude with a case which has been brought to my attention, among a number of others, by the National Association for Mental Health. This shook me. In November 1988 David Byrne was arrested in the car park of a drugs company, naked except for his socks. He had been reported to be damaging cars with a hub cap which he had removed from one of them. Instead of arranging an assessment of his need for treatment in a psychiatric hospital, the police charged him, put him before a court and he was remanded in custody. Initially, he spent time in police cells where he became highly disturbed, shouting continually and unintelligibly and totally immune to any communication. Eventually, he reached Brixton Prison and on arrival the doctor examining him described him as hyperactive, covered in faeces, naked except for a sheet and making gestures appearing to defend himself. The doctor considered him to be mentally ill but instead of arranging for his early transfer from prison, staff kept him in the medical wing until he died five days later, possibly having suffocated under a blanket. The inquest verdict was open.

Although the prison medical officer described the cell in which he was held as inhuman, primitive and not allowing or good supervision, none of the medical staff considered that his condition warranted use of Section 48 of the Mental Health Act, which only happens in the most extreme circumstances such as when a prisoner is extremely violent or suicidal. It is against such situations that we are fighting.

Baroness Faithfull

I rise to speak to Amendment No. 23 which is grouped with Amendment No. 17. I listened with great care to the Minister when he spoke to Amendment No. 17. At this hour my IQ is at a rather low ebb and I do not believe that I fully understood what he said. However, what I did understand seemed to be reasonable but unrealistic.

The Butler Report was published some 15 years ago and, as my noble friend will realise, that report recommended that those suffering from a mental illness should not be accommodated in ordinary prisons. Yet in 1991 we are still in the same position as we were in 15 years ago. It is extremely important to remember that. Over all those years we have wanted to cure and deal with this difficulty, but have not yet found a way of doing so.

Perhaps we could examine the situation of the mentally disordered person being kept in prison. First, as was said by the noble Lord, Lord Morris, the prisoner suffers. Prison is not the place to put such people. The noble Lord, Lord Morris. has given the figures of the number of people who have committed suicide. The prisoner does not benefit; he suffers greatly.

Secondly. I have had a great deal to do with prison staff. I pay tribute to the way in which they deal with mentally disordered offenders in prison. But as many prison officers have said. they are not trained to look after mentally disordered patients. It is difficult to care for them, but to do so along with all the other prisoners, and co-ordinate men who are fit, well and able with those who are mentally disordered, is asking prison staff to do more than should be required of any person.

Thirdly, the other prisoners find the presence of mentally disordered people in their midst disturbing. That is understandable. Again, it is extraordinary how tolerant many prisoners are, but nevertheless they are sometimes disturbed, upset and unhappy. For the mentally disordered to be kept alongside ordinary prisoners causes trouble and makes for a bad atmosphere in the prison.

The noble Lord, Lord Morris, gave statistics, which I shall not repeat because they will appear in Hansard. We turn to the solution. I understand that one would wish mentally disordered prisoners to be dealt with under the National Health Service in hospitals in the community. But that is completely unrealistic. One must face the fact that it is unrealistic even over a period of five years.

Amendment No. 23 recommends that mentally disordered patients should be dealt with under the National Health Service, but two aspects may be set against that, and even waiting five years will not deal with them. One aspect is that doctors and nurses in mental hospitals do not want to look after prisoners in secure units within those hospitals. A few patients under the Mental Health Act must be looked after in secure accommodation for fear that they will leave the hospital. However, the number of people being looked after in secure accommodation under the Mental Health Act is unacceptable to staff. Therefore, if one is to look after prisoner—men who are alleged to have committed an offence and are on remand, or who have committed an offence —under the National Health Service, one must change the whole attitude of the psychiatric units in the National Health Service. Is that possible? It goes against their ethos and one is up against a very real difficulty.

Secondly, the beds are not available. Although my noble friend Lord Ferrers said that 600 were available—a minute amount compared to what is required—and an extra 100 will shortly be available, that will never meet the need, even in five years. Therefore, there are two points to be made. First, can this situation be dealt with under the health service? I recognise that the amendment does not say it, but within the penal system should there be secure units run apart from the prisons for the mentally ill prisoners who need security?

I have some difficulty because since the amendment was drafted various representations have been made to me that it will not be possible to deal with these patients under the national health system. Therefore, I have put forward the second suggestion which is not in the amendment. The situation has gone on for 15 years. We have had pious hopes of dealing with it, but we have not done so. I suggest that there needs to be set up a committee to look at how the problem can be dealt with either within the National Health Service or in other ways.

Lord Mottistone

I shall speak briefly to Amendment No. 24. It is a pity that it is so late and that we spent so long on some of the earlier amendments. However, perhaps I may say how much of an improvement it is to have Amendment No. 17 which is very much better than not having it at all. The fact that it does not go far enough I shall dwell on in a minute or two. It is useful to have a requirement for medical reports and pre-sentence reports by probation officers and social workers on an offender who is or who seems to be mentally disordered, and that those reports should be considered by the courts. Paragraph (a) of the amendment refers to, a pre-sentence report, a medical report or otherwise".

I think that "otherwise" might be particularly helpful because information relating to an offender's mental condition can also be given by the offender himself or more probably his relatives and friends and their advisers who will usually know the history of his mental illness and its treatment and will be able to provide these details without delay. I draw that to my noble friend's attention. If there is to be given any guidance about the implementation of Amendment No. 17 then those points might be noted.

It is also pleasing that the courts will be required to consider the likely effect of a custodial sentence on any treatment which may be available for the offender's mental condition. My noble friend Lady Faithfull and the noble Lord, Lord Morris, touched on this: what happens then? My Amendment No. 24 would take the matter further and would not only require the courts to consider these issues but would prevent them from passing a custodial sentence where that might have a serious adverse effect on the offender's mental health. It would also require the courts to try to secure treatment for the offender and enable them to obtain information from the appropriate regional health authority about arrangements for admission to hospital if that seems advisable.

I shall not press that matter much further, but I would like to take up a couple of points that my noble friend Lady Faithfull made. She said that the ordinary mental hospitals would not readily take to this provision. I am sure that my noble friend the Minister needs to take note of the point made by my noble friend Lady Faithfull; namely, that we should have some kind of special hospitals within the prison service system which are not special hospitals like Broadmoor, but of a lesser grade of importance and taking less serious mental patients. That would be part of the prison system rather than of the health service system. It is only in that way that we shall get the measure working.

I am very encouraged by some of the comments of my noble friend the Minister about actions and initiatives which have been taken by the Home Office and many other bodies, including the health department. A great many of these are summarised in paragraphs 10.115 to 10.140 of the Woolf Report. Paragraph 10.140 states: These initiatives have a further significance to this Inquiry. They demonstrate what can be achieved by co-operation between different agencies involved in the Criminal Justice System. The need for a close and effective relationship between these agencies is a matter to which this Report attaches great weight. It is necessary to find an appropriate mechanism for assisting that co-operation".

That needs to get going fast.

My noble friend the Minister drew our attention to the fact that a great deal has been done during the past 10 or 12 years in that direction. Some of the figures he quoted were quite impressive. But the fact is that it is not good enough. I have been approached by a senior probation officer at Camp Hill Prison on the Isle of Wight. The prisoners there are young men aged between 18 and 25. Some are older but the main group are of that age. They serve on average two-year sentences. The senior probation officer tells me that about 25 per cent. of them are inadequate and will never be able to look after themselves in ordinary life without outside help. She says that about half of them would probably be eligible, properly classified by a psychiatrist, to go into a mental hospital and that the other half are just inadequate. They would be a burden to the community in some way but would not qualify for admission to a mental hospital. For such people we need accommodation which is not quite a prison but is not a hospital either. There is a gap in provision.

The Home Office and the other agencies are working in that direction. However, in the nature of things, they are working terribly slowly. In the meantime, these poor, unfortunate people are being put in a prison environment which does them no good at all—everyone agrees with that—and many of them end up losing their lives. Some commit suicide and others have all the stuffing—what little stuffing they ever had—knocked out of them, so that they cannot pull themselves together when they leave prison. A large number of people are involved. In Camp Hill Prison 25 per cent. of inmates fall into the category I have mentioned. From what I know of the other larger prisons of Parkhurst and Albany, I have the impression that such a figure applies to them also. We must get weaving.

My noble friend said that we are waiting for next year. I hope that he was given that advice last year for this year. I am told by NACRO that the Home Office should have reached a conclusion by July 1991. If that is so, and if my noble friend can confirm it, that is helpful. However, if it is July 1992, I shall despair. We have to do something.

I could give many other examples. There is the case of a schizophrenic patient, a girl of 28 years, in Risley. She is very violent and has been in hospital many times. She should not have been in prison at all. I hope and pray that in applying Amendment No. 17 my noble friend will help the courts to implement it. As I think the noble Lord, Lord Morris, said, it is brilliant as far as it goes, but it leaves the courts hanging.

What do they do with the patient? I say he is a patient because he will have been declared one. A hospital bed cannot be found for him because half the hospital beds have been closed. There are not hospital beds waiting for such patients in the ordinary hospitals. Moreover, it is not suitable to send such people to prison. The courts are aware of that fact, so what are they to do? If the person had not committed a relatively serious offence, he would not have been brought before the court in the first place. This is a tragedy. We must get the matter sorted out—and we must do so before 1992.

10.45 p.m.

Lord Harris of Greenwich

I very much agree with the remarks just made by the noble Lord, Lord Mottistone. We must exhibit a degree of impatience on the matter. To my knowledge, this situation has existed for at least 15 years. There is a game of leisurely ping-pong going on between the Home Office and the Department of Health. I can testify to that fact, having attended the meetings designed to deal with the issue.

I do not want to make a scapegoat out of the old DHSS, but it is a fact that substantial sums of public money were voted by another place in order to set up secure units. Such units were supposed to take a significant number of people from the prison population. But what happened? It seems that the money was diverted and used for wholly different purposes. That is not accceptable.

I welcome the fact that the discussions referred to are now going to take place between Ministers in the Home Office and in the Department of Health. I hope that they will be succcessful. However I felt somewhat uneasy when the noble Lord suggested that there should be a new type of psychiatric establishment for these people run by the Home Office. I cannot see any conceivable grounds on which the Home Office should accept such a responsibility. It seems to be highly desirable that we should try to ensure that as many of these people as possible are placed in mental hospitals. However, the noble Baroness is quite right to point out that there is deep resistance in the mental hospitals: they do not want these people. But, similarly, the prisons do not want them.

Anyone who has visited a prison and who has seen the facilities available will know that in most cases you cannot have a successful treatment strategy in, for example, the prison hospital at Brixton. That hospital was vividly described by Judge Tumim in his report. I find myself in total agreement with the Home Secretary. At the time of the publication of the Tumim Report, he said that the place for mentally ill people is in mental hospitals. That is his view and it also happens to be mine.

Lord Windlesham

I do not want to delay Members of the Committee for too long as I believe that the Minister wishes shortly to conclude today's proceedings. However, I trust that I am correct in thinking that I heard him refer to the growth in the number of consultant forensic psychiatrists since the Butler Committee reported, and to the growth of the number of places in regional secure units as being 600. I should be most grateful if my noble friend would write to me in answer to the following detailed questions. First, has there been any increase in that number over the past five years? Secondly, if so, how does that increase relate to the target set by the Butler Committee? My own recollection is that Butler recommended over 1,000 places. However, I may be mistaken in that assumption. Those are detailed but important questions. I should be most grateful if my noble friend would write to me in response, rather than replying to me now.

Earl Ferrers

I am grateful to Members of the Committee for the views which have been expressed on the matter. We are all concerned to ensure that people who are mentally distressed should be looked after in mental institutions and not in prisons which may be unsuitable for them. The noble Lord, Lord Morris of Castle Morris, gave the Committee a distressing example of the way in which such situations can go wrong.

I believe that my noble friend Lady Faithfull said that what I had said was reasonable. However, she then went on to say that it was not realistic. The Butler Report recommended, as she said, that we should keep mental patients out of prison. That is what we want to do, but the report also said that psychiatric hospitals would find it impossible to do their work if they were forced to accommodate all cases the courts thought right to send them, regardless of their ability to provide suitable treatment.

That causes the dilemma upon which the noble Lord, Lord Harris, put his finger. Prisons do not want these people and sometimes the hospitals do not want them. One of the dangers is that if the courts force patients onto doctors and into hospitals which may not want them, that may upset the relationship between the patient and the doctor when there should be a rapport. That is not a reason merely for saying that patients should go only where the doctors wish them to go. It is important that there should be an accord between doctor and patient over matters involving mental treatment.

If the courts sentence those people to be detained in certain institutions against the will of those institutions, that sets everything off on the wrong foot. The trouble with Amendment No. 23 is that it makes it impossible for the court ever to impose a custodial sentence to protect the public. That brings into question what happens to those people who require some form of looking after if there is no accommodation available. If Amendment No. 23 were accepted those people could not be kept in prison. They would have to go into other accommodation for mental patients. What happens if there is no accommodation available? What happens if the hospitals concerned are not suitable for the person being sentenced? What happens if the hospitals do not want to receive that type of person?

My noble friend said that the NHS cannot cope. My noble friend Lady Faithfull also said that we should set up a committee. That is what we have done. My right honourable friends the Home Secretary and the Secretary of State for Health have set up a major review of all the health and social service problems involving mentally disordered offenders. They will assess many aspects of the problem. My noble friend Lord Mottistone did not mishear me: regrettably the review will not be completed until the middle of next year, not this year, but that does not prevent action being taken earlier because interim reports will be provided. Action can be taken on the interim reports. My noble friend Lord Mottistone said that my noble friend Lady Faithfull had said that there should be special hospitals within the prison system to take lesser grade people rather than that they should be dealt with within the health service. Our view in general is that where a person is mentally ill such a person should be looked after by the mental health services, but not necessarily within the prison system.

There is a big gap between what is available and what in a perfect world should be available. The number of places required for such people is greater than the number available at the moment. That is something we must all strive to improve.

My noble friend Lord Windlesham asked me about figures. I shall see whether I can give him the figures that he requires. I said that we have 650 regional permanent or interim secure places in England which did not exist in 1979. The health authorities have plans to provide a further 100 places. In September last year there were 76 consultant forensic psychiatrists compared with just two 20 years ago. I do not have the figures for the increase over the past five years, nor the others for which he asked, but I shall see that he gets them.

Lord Windlesham

I am sure that the noble Earl will take the point about whether there has been any progress at all in recent years. I feel that 1979 was a long time ago.

Earl Ferrers

I quite accept that. I shall find out the facts and let my noble friend know. The point of the amendments which I have put down is that we are making a distinct effort to ensure that those people who ought to be treated within the health service and under the mental health system are so treated. However, the courts may have the right, if necessary, to ensure that some people who may nevertheless have to be within the penal system are provided for. That is the case at the moment. We all wish to see more provision of places for those suffering from the distress and anxiety of mental health. I hope that the amendments I have put down will be accepted by the Committee. I shall certainly take into account the many important matters that Members of the Committee have raised over the problem of mental health.

Lord Mottistone

Before my noble friend sits down, he said that in a perfect world we require more hospital beds within the mental health system. Will he join with many of us outside in persuading his right honourable colleague the Secretary of State for Health to stop the regional health authorities closing beds in mental hospitals? The fact is that if the beds had not been closed at the rate they have been during the past 10 years, we should have a few beds to spare for the offenders who ought to be put in those hospitals. The beds are not there because regions have been shutting them down. They have done that because previous health departments said that that should happen. This is not a political matter, the situation has been going on for years, right back to Enoch Powell, and it has been doing a lot of harm.

Earl Ferrers

I shall certainly look into the point which my noble friend made. I know that there was a certain anxiety that those who suffer from mental disease should not be kept incarcerated in certain buildings. They ought to be allowed to live within the public system and not be kept separate from the public. I shall look into the point.

Lord Richard

Before the Minister sits down, perhaps I may ask two questions. First, would he be kind enough to let me see the letter that he is to send to the noble Lord, Lord Windlesham? It will be of interest to others, particularly the noble Lords, Lord Harris and Lord Mottistone.

Secondly, those of us who have practised in the courts over the years have observed—and it is obviously a rather unsatisfactory and non-scientific observation—that there seem to be far more people now coming before the courts who are mentally disordered in the general sense of the word, or inadequate, or whatever phrase one wishes to use, than there were 20 or even 30 years ago. Are there any figures on this? Does the Home Office have any statistics as to whether there has genuinely been an increase in the number of mentally disordered people coming into the system and going to prison? If so, I should very much like to see those figures.

Earl Ferrers

Perhaps I may look into the position and see what figures are available. I shall write to the noble Lord, Lord Windlesham, with the statistics which he and the noble Lord, Lord Richard, requested. I shall copy that letter to all those who have taken part in the debate and place a copy in the Library, and then perhaps everyone will be satisfied. Perhaps the noble Lord, Lord Richard, will not think it impertinent if I include in the letter to my noble friend Lord Windlesham what statistics I can obtain on the questions that he asked. That may simplify matters.

Baroness Faithfull

My name is the first attached to Amendment No. 23. As these amendments are grouped together, should I speak to my amendment now or when we come to it? I have been speaking to it.

Earl Ferrers

The amendments are all grouped together. I thought that my noble friend had spoken to Amendment No. 23. If that is not the case, it would be appropriate for her to do so now.

Baroness Faithfull

My noble friend the Minister has remarked on the difficult situation that exists in the health service. He also said that he feels these patients should be dealt with under the health service. But that still does not get us anywhere. This is a difficult and complicated matter. The noble Lord, Lord Windlesham, asked for further information on various points. Therefore I intend to withdraw Amendment No. 23, but I shall return with the provision at a later stage of the Bill.

Earl Ferrers

I appreciate that my noble friend wants these patients dealt with within the health service system. However, I suggested there would be an objection to her amendment because it would force the mental health system to deal with all those people. If places are not available to treat them, the provision would jam up the system. The amendment is not workable. I believe my provision would be preferable as it gives the court another option.

On Question, amendment agreed to.

Lord Reay

I beg to move that the House do now resume.

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

House resumed.

House adjourned at one minute past eleven o'clock.