Criminal Justice Bill

HL Deb 26 March 1991 vol 527 cc958-77

3.14 p.m.

Earl Ferrers

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Earl Ferrers.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Lord Richard moved Amendment No. 1:

Before Clause 1, insert the following new clause:

("Sentencing Council

.—(1) For the purposes of exercising the functions conferred on it by this section, there shall be a body known as the Sentencing Council, consisting of—

1. (a) the Lord Chief Justice, and
2. (b) not less than four judges of the Court of Appeal appointed by the Lord Chief Justice.
3. (2) The Sentencing Council may appoint as advisers one or more persons from any or all of the following categories—
4. (a) persons who hold or have held judicial office;
5. (b) members of the prison service;
6. (c) members of the probation service:
7. (d) persons who have knowledge of the after-care of discharged prisoners; and
8. (e) persons who have made a study of the causes of delinquency or the treatment of offenders.

(3) It shall be the duty of the Sentencing Council to consider and review sentencing policy and from time to time to issue guidelines in respect thereof.")

The noble Lord said: Amendment No. I is also tabled in the names of my noble friend Lord Mishcon and the noble Lords, Lord Hutchinson of Lullington and Lord Hunt. It may be for the convenience of the Committee if I speak also to Amendment No. 2 tabled in the name of my noble friend Lord Longford, which is an amendment to the proposed new clause.

The proposed new clause would establish a sentencing council as part of the Court of Appeal with the responsibility for issuing guidance on sentencing. I suspect that there are two main questions that Members of the Committee will wish to ask in connection with the proposal: first, is there a need for it, and, if so, why? The second question is whether the proposed form of the sentencing council is one which makes sense against the background, which I shall submit to the Committee in due course, of apparent need.

The sentencing council would be chaired by the Lord Chief Justice and would include no fewer than four judges of the Court of Appeal. The council would have a discretionary power to appoint and take advice from such people as a circuit judge, a magistrate, a prison governor, a chief probation officer and an academic criminologist.

Over the past decade there has been growing interest in the case for establishing a sentencing council as a mechanism for bringing about greater consistency in sentencing practice. That has arisen from concern about disparities in sentencing in both magistrates' courts and in Crown Courts. That concern is shared by many bodies and individuals. I shall presently refer the Committee to some of them. However, that concern has certainly been shared by the Magistrates' Association, which has taken a number of important steps to encourage greater consistency. Those steps included the production of guidelines for magistrates on sentencing and an emphasis in magistrates' training on what is called "structured decision making".

The efforts of the Magistrates' Association to reduce disparities have met with some success. The variations are undoubtedly less extreme than was the case a few years ago. However, it is still possible—indeed, it is very apparent—to find considerable difference between sentencing patterns in courts in similar areas. For example, in 1989, 15 per cent. of adult male offenders in South Tameside received immediate prison sentences, compared with 4 per cent. in Rotherham. The figure in Exeter was 10 per cent., compared with 5 per cent. in Worcester.

There are also variations between Crown Courts to an extent which cannot be readily explained by differences in the pattern of offences. An analysis of Crown Court sentencing figures for 1988 showed that the use of custodial sentences in the first-tier Crown Courts—that is, those able to deal with the most serious offences—varied from 69 per cent. of offenders at Mold to 38 per cent. at Wood Green. In second-tier Crown Courts the figures varied form 63 per cent. at Oxford to 44 per cent. at Durham. Moreover, in third-tier Crown Courts the figures varied from 63 per cent. in Coventry to 33 per cent. in Portsmouth.

The analysis as regards the use of non-custodial sentences also showed that there are very considerable variations. For example, at first-tier Crown Courts the proportion of offenders given probation orders ranged from 4.5 per cent. at Warwick Crown Court to 13 per cent. at Lincoln. Overall, the figures seem to indicate that the more serious the offence the more consistent the sentence imposed. It is significant to note that it is in relation to serious offences that the Court of Appeal has issued the most detailed guidance.

The greatest variations in sentences are to be found in regard to non-violent offences. Taking the figures for magistrates' courts and Crown Courts together, it has been found that 6 per cent. of offenders sentenced in North Wales received custodial sentences in 1988, compared with 16 per cent. in adjoining Cheshire. Moreover, 22 per cent. of offenders sentenced for burglary received custodial sentences in Dorset, compared with 46 per cent. in Cheshire. Further, 5.9 per cent. of offenders convicted of criminal damage in Surrey received a custodial sentence, compared with 32 per cent. in Hertfordshire.

There are bound to be disparities in sentencing figures from court to court and from area to area. One expects that. No court has an identical pattern of crime to another or an identical pattern of criminal to be dealt with. One accepts that too. The implications of those figures are disturbing. What is disturbing about them is that a person's liability to a custodial sentence may be greater if he commits an offence on one side of the geographical boundary than if he commits an identical offence a couple of streets away on the other side of the boundary in another court's area.

Justice demands (does it not?) that the sentencing of offenders should be consistent, reasoned, open and predictable. In no jurisdiction, in no country of which I am aware, is judicial independence interpreted to mean unfettered judicial discretion. Many common law jurisdictions—for example, Canada, Australia and parts of the United States—have already undertaken a careful rethink of sentencing policy and practice. In Britain too, the Government acknowledged the need for a new sentencing framework in their White Paper Crime, Justice and Protecting the Public. The Government argue: To achieve a more coherent and comprehensive consistency of approach in sentencing, a new framework is needed for the use of custodial, community and financial penalties

In Part I of the Bill, which we are now considering, the Government set out the constituent parts of that new framework: the basis upon which custodial sentences should be imposed, what the courts should consider when assessing the length of custodial sentences and the factors to be taken into account in deciding upon a particular non-custodial or community penalty. However, the Government also accept that sentencers will require detailed guidance on the interpretation of their new sentencing framework. They say in the same White Paper: The Government hopes that the Court of Appeal will give further guidance, building on the legislative frameworkߪThe Government will look to the Judicial Studies Board to make arrangements for training sentencers to give effect to the new sentencing policies and the more detailed interpretation of the legislation by the Court of Appeal

Throughout this century at least, the Court of Appeal has developed precedents on the way that courts should exercise sentencing discretion. In the 1980s the Lord Chief Justice, the noble and learned Lord, Lord Lane, handed down a series of guideline judgments; for example, on rape, incest, drug trafficking and social security fraud. Those guideline judgments, as anyone who has looked at them will be aware, are valuable. While valuable in themselves, they cover a small number of offences only. They leave the most common crimes—burglary, handling stolen goods, theft and so on —virtually untouched. The existing guidance excludes almost all non-custodial penalties—the most common offences coming before the Crown Court—and nearly all magistrates 'courts' matters.

In addition, the English guideline judgments do not form an inter-related structure. They have emerged, as they must do coming from the Court of Appeal, in an ad hoc fashion over the years. The Court of Appeal is, after all, a reactive body. When cases come before it, it deals with them. Furthermore, it is true to say that the guidelines do not derive from any general analysis of sentencing or the proper use of custody. There cannot be any other social policy which has been allowed to develop in such an unco-ordinated and unpredictable manner.

It is difficult to believe that the basic flaws of a system entirely reliant upon the Court of Appeal will be remedied when the Criminal Justice Bill becomes law. In contrast, a sentencing council would have many important advantages. In particular it would be empowered to develop detailed guidance on sentencing across the board, including those everyday criminal matters which rarely reach the Court of Appeal.

Another advantage that a sentencing council would have is that it could offer guidance across the full range of offences and possible sentences much faster than the Court of Appeal could ever do. It could also set down guidance about matters such as bail which in general is excluded from the overseeing of the Court of Appeal. It could also consider non-custodial penalties which rarely come before the Court of Appeal for the simple reason that few people appeal against non-custodial sentences. A man who has been put on probation is unlikely to go to the Court of Appeal to have his sentence changed.

There is considerable evidence to show that the use of non-custodial penalties is inconsistent. I do not want to weary the Committee with too many figures. But, for example, in only about 50 per cent. of cases is community service used as a direct alternative to custody. Similarly, the suspended sentence seems to have been used in a manner other than that Parliament originally intended.

Many individuals and associations have commented on the present position and have come out in favour of a sentencing council. Foremost among the commentators is Professor Ashworth of King's College, London, editor of the Criminal Law Review. In a series of papers, books and articles, published since the early 1980s, Professor Ashworth has welcomed the series of guideline judgments that the Court of Appeal has produced since the noble and learned Lord, Lord Lane, became Lord Chief Justice. However, Professor Ashworth has nevertheless pointed out the dearth of detailed guidance on the more common and ordinary types of cases such as burglary, theft and lesser assaults—the type of cases in which the variations in sentencing are the greatest. He pointed out, for example, that there is little direct guidance for magistrates' courts in the present stock of Court of Appeal judgments. That is not altogether surprising given that appeals against sentences passed by magistrates do not go to the Court of Appeal.

Professor Ashworth developed that theme in greatest detail in his book Sentencing and Penal Policy 1983. I shall quote just two sentences. He said: It is hardly too much to say that the more frequent the type of case the less appellate guidance there is likely to be. Precedents on serious woundings, robberies and rapes abound; precedents on everyday assaults, theft and damage are hard to find and, because the sentence which gave rise to the appeal was probably abnormally high in the first place, afford little guidance to the magistrates' court or to the third tier Crown Court".

He proposed, as a means of filling that gap, the establishment of a sentencing council chaired by the Lord Chief Justice to produce recommendations which would be issued as practice directions. He developed that proposal in subsequent pamphlets and literature, but I do not need to take the Committee through that today.

Some prominent magistrates are also backing the idea of a sentencing council. The chairman of the Magistrates' Association's sentencing of offenders committee, Mrs. Anne Rich, has said: I would heartily support the idea of a sentencing council, although I know that there are still some who have reservations about it. I feel that the approach to sentencing between us and the higher courts, such as the Crown Court, is very much out of line

Without supporting a sentencing council as such, the chairman of the Criminal Bar Association, Nicholas Purnell QC, has argued for a standing forum on sentencing in which judges and others in the criminal justice system can discuss, on equal terms their differing perspectives, their suggestions and solutions for the developing process of sentencing. This would involve the exchange of information and research, experience and practice from which the judiciary would emerge better informed and to which they would have contributed their unique experience and authority".

He concludes, as a person who has practised for many years in the criminal courts: Judicial independence, integrity and vigour will withstand a little bruising from rubbing shoulders with other players on the court".

A committee established by Justice has approved the proposal. A former chairman of the Magistrates' Association, Lady Ralph, chaired the committee which approved it. The Penal Affairs Consortium, which is a group of 18 member organisations, including all the main bodies representing prison and probation staff as well as resettlement agencies and penal reform groups, supports the proposal. Finally—it is not often that a representative of my party can pray this in aid—in an important leader published on 10th November 1990 The Times said: The guidelines, though an improvement, still give the judges considerable discretion. Much depends on how the Appeal Court interprets them. All this is hazardous".

It added, and perhaps this is the essence of the case: The transmission mechanism between Parliament, Home Office and the judiciary is creaky and ineffective. Judges are notoriously their own creatures, disinclined, through long exercise of power, to heed outside influence. Penal reformers have long advocated the creation of a sentencing council representing all interested parties. Its job would be to formulate detailed guidance on sentencing for the courts

The Times concluded: Justice demands no less".

I see that the noble Lord the Leader of the House is present. I do not know the procedures in this instance but I shall take about another five minutes if the noble Lord can contain himself for that long; otherwise, I shall give way now.

The case for the sentencing council is reinforced by consideration of the contents of the Bill. Without a body of the kind that we propose it is difficult to see from where guidance for sentences can come on the detailed interpretation of some of the sentencing principles contained in Part I of the Bill. Those principles cover not only the use and length of custodial sentences but also the use of community penalties.

The Government wish to see more offenders dealt with outside prison by new orders combining such options as probation, community service, curfews, fines and compensation orders. One of the risks involved in the use of new combinations of penalties is that the greater the number of requirements imposed on offenders, the higher the chance that some will he returned to court and imprisoned for a breach. If the new combined orders are used for offenders who would not otherwise have been in prison, this could lead to the imprisonment of offenders who would not otherwise have been at risk of custody. That has to be dealt with.

A further concern is the changes which the Bill makes in the parole system which are likely to increase the prison population. If the Bill's strategy is to succeed, it must counteract the increase in prison numbers resulting from the parole changes, the danger of the new combined orders slipping down the tariff and the prospect of a large increase in the numbers imprisoned for breach of community penalties. This requires much more detailed guidance on sentences than the Court of Appeal has hitherto shown itself able or willing to give.

I have recently been in correspondence with Professor Ashworth, particularly after the debate on Second Reading. He refers to the handbook from the Judicial Studies Board. Members of the Committee who were here at Second Reading may remember that the noble and learned Lord, Lord Ackner, told me that I should go away and read it because it was in the Library, but I am afraid that it is not there. Nevertheless, as any sensible counsel does, I have taken the view of a very senior judge and I have considered it. Professor Ashworth says: The briefest of references to this is likely to show that it contains good guidance on a small minority of crimes, mostly indictable-only, and contains absolutely nothing on the hulk of crimes tried in the Crown Court and in magistrates' courts every day of the week. Under the government's White Paper proposals, it expressed the 'hope' that the Court of Appeal would hand down more guideline judgments in the coming years. That is surely an insufficient basis for sentencing reformߪIt is essentially reactive, in leaving too much to the chance of cases coming before the Court of Appeal; the individual judgments are unlikely to form a coherent pattern, because the Court operates case-by-case and has no means of 'spreading the canvas' and looking at proportionality among all the major crimes; the Court has shown no enthusiasm for tackling crimes like burglary, handling and everyday thefts; and the court has no real experience of sentencing problems in magistrates' courts, which seem doomed to remain without authoritative guidance".

Finally—I am obliged for the support I have just received in saying that from the noble Lord, Lord Boyd-Carpenter.

Four minutes ago I said that I would take five minutes, and I am just about on time. Finally, I am afraid that there is an assumption among the judiciary that the judges are really the only people who are qualified to judge and, indeed, capable of judging what sentences are appropriate for particular crimes. There is a feeling also that they are the only people capable of judging what the country or society demands. I do not think that that is an assumption that one can necessarily accept. On what is the assumption based'? Why is a High Court judge necessarily in a better position to judge society's demands or its needs than, for example, a Member of Parliament who is at least elected and perhaps more in touch with everyday society and the general public than the judicial ermine allows?

To pose the problem is to answer it. Judges must bear some responsibility for the number of people who are in our prisons; though the noble and learned Lord, Lord Ackner, was insistent in denying that in our debate on Second Reading. I therefore place considerable importance on the ability under our proposals to consult other disciplines. We aim to achieve a greater consistency, not a uniformity in sentencing. We want a greater consistency in sentencing practice throughout the whole criminal justice system, in magistrates' courts as well as in Crown Courts. I do not believe that one can achieve that consistency and fairness which a proper system of criminal justice demands under the present system as at present constituted. I beg to move.

3.30 p.m.

The Earl of Longford moved as an amendment to Amendment No. 1, Amendment No. 2:

Before Clause 1, Leave out lines 5 to 16 and insert (" nine members, of whom no more than five shall be judges or magistrates.").

The noble Earl said: I rise with even more than my usual timidity. To use a phrase which will be familiar to a classical scholar like the noble and learned Lord, Lord Hailsham, sum timida; I am as timid as a timid woman. I realise that in this Chamber we perhaps do not apply that phrase or accept it as describing the attributes of the distinguished noble Baronesses who in many cases have predominated in our debates. Nevertheless, it applies to my situation today.

Here I am, after all these years, differing at any rate in appearance from my revered spokesman on the Front Bench. It has never happened to me before and I am sure that it will never happen again. The truth is that I do not believe for a moment that he disagrees with me. He agrees, but for some obscure reason he must propound his amendment.

I feel that this is a most important issue; it is not trivial or incidental. The whole future of penal reform depends on reducing the number of people in prison. I say dogmatically, and I believe that everyone agrees with me, that in this country we send too many people to prison. Even in relation to the crime rate, we send too many people to prison. Why do we do so? Because the much esteemed judges send them there, with some assistance from the magistrates guided by the judges.

The question is how we persuade judges to send fewer people to prison. The problem is as simple as that. I do not feel that my revered and noble friend's amendment covers that at all. The amendment deals with the disparity of sentencing, but with the general level of sentencing it does not deal. My proposition is simply an assertion that the general level of sentencing in this country is too high. It can only be brought down if judges are persuaded or induced to pass lighter sentences or send fewer people to prison. One either agrees or disagrees with that.

Now there is the problem of the so-called independence of the judiciary. I hope that by this time every enlightened Member of the Committee—of course, every Member of the House is enlightened—can distinguish between the independence of the judiciary in regard to individual cases and the independence of the judiciary in regard to the general sentencing level. That is the pons asinorum of the discussion. We must surely make that distinction.

I am saying nothing now about the judiciary in relation to miscarriages of justice about which we have had much discussion. There may be a possible confusion here. On this occasion I am not criticising the noble and learned Lord, Lord Lane, or any of his colleagues in regard to anything that may have been said about them lately. The only dealings I have ever had with the noble and learned Lord arose because a prisoner whom he sentenced to many years of prison had abused him. That prisoner asked me to send an apology to the noble and learned Lord who generously accepted it. That is my only connection with the noble and learned Lord, Lord Lane. Whether as an individual or as the Lord Chief Justice, the noble and learned Lord, Lord Lane, does not enter this matter at all. I must make that quite plain. When we discuss the independence of the judiciary, we may also consider the important matter of whether we could improve the arrangements to prevent miscarriages of justice, or we might be talking about something totally different: the general level of sentencing. That is what I am talking about now.

The Committee must decide whether it considers the general level of sentencing too high. If the Committee thinks it is too high, that means the Committee must also think judges send too many people to prison. Does the Committee think it can alter the level of sentencing without interfering with the allegedly sacred principle of the independence of the judiciary? I doubt whether there is anyone in the Committee who does not agree that the average level of sentencing is too high. I refer to the average level of sentencing as I do not wish to enter into details in these few remarks. Therefore, if the Committee is agreed that the average level of sentencing is too high, how does it propose to persuade the judiciary to act differently?

The Government obviously hope that, as a result of this Bill, they will manage to persuade the judges, by rather indirect means, to reduce their level of sentencing. That has been affected very well during the term of the present Government in the 1980s with regard to young people and children by an alteration in legislation. I am on the Government's side in hoping that a similar achievement will result from this Bill and that the level of sentencing can be reduced by changes in legislation. I wish the Government well in that.

However, as my noble friend Lord Richard pointed out, the reform of the parole system, as expounded by the Carlisle Committee, would increase the number of people in prison unless a new attitude is adopted on the part of the judges. Therefore it is a question of how we can bring about a new attitude on the part of the judges. That must be done. The general level of sentencing in this country is the responsibility of the elected government of the day, whichever party is in power.

I return to my former question: how can one bring about a reduction in the general level of sentencing? I consider my amendment to be rather wet. However, it is not as wet as the amendment of my noble friend. I say that with the utmost respect. My amendment is a wet measure. It would still leave the judges with a lot of discretion. NACRO has suggested in the past that a much wider body should be established. I imagine NACRO stands by that suggestion now. It has suggested the establishment of some kind of national criminal policy committee that involved Ministers. My amendment represents a half-way house. It does not establish total social control over the judges. However, it goes a long way towards trying to influence them in the right direction. I beg to move.

3.45 p.m.

Lord Hutchinson of Lullington

I wish to support the first amendment. Using the jargon of the day, I do not feel uncomfortable with the amendment of the noble Earl. However, I do not believe the composition of the council is the important provision in the amendment. The important provision is the principle involved. Do we want a council, or a forum, which, as the noble Lord, Lord Richard, pointed out, is largely supported by a whole spectrum of people who are involved in sentencing? I wish to stress the inadequacies of the present situation and explain why a council of this kind is so essential.

The guidelines handed down by the Court of Appeal are handed down as a result of the deliberation of the noble and learned Lord the Lord Chief Justice and probably two or three other senior judges. The guidelines handed down by the Court of Appeal are disseminated throughout the judiciary and the junior judiciary through the Judicial Studies Board. Although the Judicial Studies Board does a good job in the instruction of junior judges and as regards the consistency of sentencing, the guidelines which are handed down from judges of great seniority—one must add they are judges of great age also—are disseminated right through the judiciary. The first thing that a young advocate has to do is to make himself familiar with the guidelines so that when he conducts cases he knows what the guidelines indicate and what kind of sentences will be given for certain offences. Therefore, into the bloodstream of the young advocate flow the views of the senior judiciary; that is, the views of two or three judges at the top of the profession. From those young advocates will be drawn eventually the judges of the future. Therefore, an extraordinarily narrow view is instilled into the whole of the legal profession which deals with crime. A continuing, narrow view of the breadth of sentencing will be propagated. That view starts with the views of the senior judiciary. It is because of that process that we have now reached the point where the narrowness must be broadened.

The judiciary must have at its fingertips the views of other people who have far greater experience in all kinds of other areas of the sentencing process. The Court of Appeal has no staff to provide research material, to measure the effect of sentences and to institute inquiries into areas of ever increasing complexity. There is no machinery to achieve that essential co-operation between all the other agencies working in this area of which Lord Justice Woolf speaks so strongly in his report.

As has already been said, there are 27,000 magistrates whose work the senior judges are extremely ignorant of. They have no contact with that work. Court of Appeal guidelines rarely refer to it. It took 10 years from the introduction of the community service order before a guideline judgment came down from the Court of Appeal. At the moment there are 10,000 people in prison on remand, mostly as a result of justices' decisions. Yet there is really no guidance for them on the principles governing bail.

There is no mechanism whatever for addressing a number of key matters which the Committee may consider to be important in the whole sentencing process. Those matters are, for example, the significance and incidence of previous convictions; the level of sentencing scales; the effectiveness of repeat penalties; the deterrent value of the effect of custody; and the success of reparation schemes, intermediate treatment or compensation for particular types or age groups. There is no mechanism to research the appropriateness of certain penalties for young persons, the treatment of ethnic minorities, or the effect on victims or the reaction of the public to different offences and different sentences.

The only other organisation in this area is the Judicial Studies Board. It is significant that Lord Justice Glidewell, who heads that organisation, has himself called for broader discussion among the judges, in some appropriate forum, of principles of sentencing. The Times put the matter very well, saying that: Sentencing is not an abstract and sacrosanct judicial privilege to he exercised in isolation from its social consequences—it is a professional decision".

Without a sentencing council of some form sentencing will continue to be inadequate and amateur whereas, as The Times said, it is a professional matter.

Mr. Patten has spoken in another place of the dead hand of conformity and the removal of judicial discretion. That is entirely to misrepresent the role of a sentencing council. I hope that the noble Earl will not repeat those views when he replies to the submissions. The reports and guidelines of a sentencing council would not be binding on the courts unless adopted by the Court of Appeal or given legal force in subordinate legislation, when they would be open to interpretation by the Court of Appeal.

The council would have no executive role, any more than the Law Commission has. It would be an invaluable adjunct to the Court of Appeal. I know that many sentencers would welcome the creation of such a body. The concept reflects very closely the thinking behind Lord Justice Woolf's recommendation in his report of a national forum on the penal side. We must move forward in this area. We must progress. Here surely is the first step.

Lord Hailsham of Saint Marylebone

I do not wish to speak in as much detail as the previous speakers, but the variety of sentencing which exists in our courts is a problem. It will always remain a problem because sentencing is very much an art rather than a science. There are many factors which have to be taken into consideration which it is almost impossible to enumerate owing to their great number.

I feel with some conviction that what is proposed, whether in the form proposed in Amendment No. 2 or in its original form as proposed by the noble Lord, Lord Richard, and supported by the noble Lord, Lord Hutchinson, is the creation of a new quango. It will provide not the fifth wheel of the coach but probably the sixth or seventh, and will create greater confusion than the status quo.

The wheels of the coach are rather more numerous than the noble Lord, Lord Hutchinson, seemed to think. He knows better than I that 97 per cent. or 98 per cent. of the criminal work in this country is dealt with by lay magistrates all over the country. There is an appeal from those courts to the Crown Court, which has so far not received any notice in the speeches that we have heard. Secondly, the Court of Appeal is entirely the creation of Parliament. Its jurisdiction is that which is conferred on it by Parliament and its duties are laid down by Parliament. One of the purposes of Part 1 of the Bill is to define more accurately the factors that ought to be taken into account either in the court of first instance, whether that is the magistrates' court or the Crown Court, or by the Court of Appeal on appeals from the Crown Court.

The wheels of the coach are very much more numerous than the previous speakers seemed to think. They have rightly emphasised the importance of the role of the Judicial Studies Board. That is a recent addition to our judicial armoury. In my opinion it can be further improved. I believe that it was the creation of Lord Gardiner, and it has certainly justified its existence extremely well. In addition there are initial courses for magistrates, seminars and textbooks, all dealing with this complicated subject. The Court of Appeal itself issues guidelines—in the nature of things, in the more serious cases. If this Chamber desires to lay down further duties for the Court of Appeal there is no reason why it should not do so.

I feel a considerable degree of disquiet about the additional work laid on the Lord Chief Justice by the proposed amendment, in either of its two forms. The Court of Appeal is probably one of the most overworked bodies in the judicial firmament. I say that with humility in the presence of former members of it. To suggest that the Lord Chief Justice can chair an additional body of this importance, instead of performing his work as chairman of the Court of Appeal Criminal Division, is to overload him rather too much. The truth is that in addition to the Court of Appeal there is the Crown Court over the magistrates, there are textbooks, there is the Judicial Studies Board, there are visits to prisons and lectures—sometimes compulsory—by social workers, police officers, prison governors and probation officers. All those factors enter into judicial studies of one sort of another. The addition of another quango is not the way forward. It will only make matters more complicated.

There was a very distinguished medieval philosopher whose name was Occam—he was, I think, a Yorkshireman—upon whose judgment I shall rest. He gave, in medieval Latin, the precept that entities are not to be created without necessity.

Lord Hunt

My name appears on the Marshalled List in support of the first amendment. I should like to echo—silently because the Committee will not wish me to repeat what has been said—the case that has been made so ably by the noble Lord, Lord Richard, and my noble friend Lord Hutchinson of Lullington.

At Second Reading I spoke briefly in favour of a sentencing council. I also expressed concern about the likely effects of Parts I and II of the Bill in increasing the prison population, in the case of Part II due to the longer period which prisoners will have to serve before they become eligible for consideration for parole, and in the case of Part I because of the likelihood that the more stringent and punitive community orders and other sentences will result in more breaches and consequently in more prison sentences.

I suggest to your Lordships' Committee that we simply cannot afford to adopt a Bill which will have as one of its consequences an increase in the prison population. That is particularly so when the need to reduce the numbers in prison is common ground among all political parties and has been voiced in report after report these past 20 years and has been so clearly demonstrated in the prisons themselves. My belief in the value of a sentencing council which will include a non-judicial component to assist the judges, and it is clear that the first amendment means to assist the judges—

Earl of Longford

am sorry to interrupt the noble Lord. I am less frightened of him than I am of some of the other speakers. I know that he is more benignant. I should like to ask him a question. He realises that these non-legal people are only advisers. They are not members. The noble Lord speaks of a component, which is an ambiguous word.

4 p.m.

Lord Hunt

I am sorry to have used the wrong word and to have displeased the noble Earl. But I am very clear on this point. After all it is an amendment in which I have had a hand. I entirely support its wording. The purpose is to advise the judicial members of the sentencing council.

My support derives from my experience as chairman of the parole board for nearly seven years. I mention that only because I want to make the point that it was an experience from which all the members of that board gained a great deal, not least the judges. There was a wide range of knowledge and experience among our colleagues. As many Members of the Committee will know, the judicial members were working with members of the medical profession and with people from the prison service, as well as from the education, probation and social services. They were working with criminologists, magistrates and many others. As the noble and learned Lord, Lord Hailsham, pointed out, we travelled and visited prisons and many other places.

The judges, both past and present, would wish to speak for themselves. However, in my time my judicial colleagues—I think I am right in saying all of them, including the Lord Chief Justice before he was exalted to that office—told me how valuable it was to hear opinions and advice not from time to time but constantly from people outwith their own professions who had such varied experience of crime and criminals not in the courts but in the community and prisons.

The Committee may well feel that that example of shared experience in the context of the parole system may not be closely relevant to the proposal in the first amendment. But I believe that it supports the case for what would amount to an advisory panel—the amendment makes clear that that is the intention—which the judicial members would have the power to create. The responsibility for drawing up guidelines for sentencing would lie with the judicial members. Judicial independence would therefore not be infringed.

It would help to ensure that sentences, particularly for the most frequent kinds of offence not involving serious violence, rape, drug offences, serious fraud and so on, were more consistent than at present. It would probably help to bring about fewer and shorter sentences of imprisonment for the less serious crimes. I see such a council as a necessary piece of equipment to help the courts to interpret the Bill and in particular Part I in the way in which the Government at present and eventually Parliament intend.

Lord Elton

In considering the merits of the principal amendment which is now before us, I hope that the Committee will also consider that there is a further reason for variation in sentencing practices in different areas which is not the result of different views being taken by the sentencers. In future under this Act every sentencer will be under the requirement, as those in the juvenile system have been for many years, to consider first what other sentence will suffice before sentencing an offender to a custodial sentence. In that consideration they have to take into account what other sentences are available. Some of them are rendered suitable or unsuitable by the character or circumstances of the offender. Others are rendered suitable or unsuitable by the nature of the alternative provisions available. That is particularly true of the juvenile sector in which such resources as intermediate treatment are available as an alternative to custody.

The level of provision is dramatically different in different areas. It seems to me that a means of reducing the percentage of custodial sentences in areas in which they are high will often be the provision of non-custodial facilities in which the courts can have confidence. As long as they do not have confidence they will not use them and the prisons will continue to bear the weight of corrective duty.

I hope that in his reply my noble friend will say something about that issue. Possibly in an aside I might ask him also to hear in mind that, whatever the system, one will not achieve uniformity of practice unless the practice is handed down uniformly. Sadly I remember an occasion in 1984 when I was taken severely to task by two Recorders, both of whom had long been practising, for having myself, it would appear, invented and introduced the system of remissions of sentences. There can be a degree of lack of knowledge of a rather serious nature which can only be overcome by administrative improvement and not by legislative change creating yet more bodies for us to finance and supervise.

Lord Gisborough

When I first became involved with this issue one of the first things I noticed was that even in a county with three courts there were variations in the penalties for quite simple offences such as speeding and having no insurance. Those offences are not particularly diverse one from another compared with other crimes. In fact the magistrates in each court guarded their own independence and set their own rates for such offences.

It struck me that surely within a county they could agree to a single figure. If the magistrates in the courts, as they do now, are to set a benchmark, surely the Magistrates' Association, subject to control, could set a benchmark for the whole country. There can only be starting points. Some benches would always need to go higher than other benches because of a greater tendency in the area for such a crime to take place. For example, on a motorway probably the starting point would always be higher. However, I see no reason why the starting point should not be laid down or suggested nationally. Therefore I tend to agree with the spirit behind the amendment.

Earl Ferrers

In moving this amendment the noble Lord, Lord Richard, said that he was anxious that there should be more consistency in sentencing. That theme has run through the speeches of all noble Lords who have spoken. The noble Lord gave examples from every part of the country, as did my noble friend Lord Gisborough. They said how in different parts of the country different sentences could be given. We too are of the view that there should be more consistency. That is one of the objectives of the Bill.

The way to do that according to the noble Lord, Lord Richard, is to set up a sentencing council which would consist of the Lord Chief Justice and not more than four judges of the Court of Appeal, to which he would add some advisers. The noble Earl, Lord Longford, would go a little further and secularise the council somewhat more. The noble Earl says that religion does not come into it but I thought that he would appreciate that word and would understand its context. He would like to have five judges—not Court of Appeal judges but magistrates, all five of them—and four other people whom one might describe in a not derogatory way as worthies; in other words people who are not judges or magistrates.

The noble Lord, Lord Richard, asked what I thought was an extraordinary question: why are judges better able than MPs to decide upon sentencing? The noble Lord shakes his head.

Lord Richard

The noble Earl provokes me to rise to my feet. I did not say that they were as well qualified to sentence. I said that they were as well qualified to judge public opinion.

Earl Ferrers

They will judge public opinion, yet they will be part of a sentencing council which will lay down the parameters of sentencing. I suggest that the correct people to deal with that are those who are involved with the judiciary and who have had the professional expertise, with years of such experience.

The noble Lord, Lord Hunt, and, I think, the noble Lord, Lord Richard, and the noble Earl, somewhat let the cat out of the bag when they said that the purpose of the sentencing council would be to reduce the prison population. I accept—as I believe we all accept—that the prison population ought to be kept down so far as possible. People should not be put into prison who would be better looked after outside. That is one of the purposes behind the Bill. Indeed, that is what we ask Parliament to agree to. But to set up a sentencing council in order specifically to lessen the prison population would be overriding Parliament in the parameters which it sets and overriding the judiciary in the way in which it acts within those parameters.

The noble Lord, Lord Richard, asked two questions. Oddly enough, I wish to ask two questions. They are not the same as those of the noble Lord. Those who favour the creation of a sentencing council need to ask two questions. First, how would it improve the arrangements for ensuring consistency in sentencing? Secondly, at whose expense would it exercise its authority? I suggest that it might be at the expense of the judges or of Ministers in Parliament, or both.

Perhaps I may deal with the second question first. It is one which advocates of a sentencing council tend to avoid. At the moment the authority over sentencing is very clear. Parliament sets maximum penalties for offences. Under the Bill, Parliament will set out criteria for use in sentencing. The sentence in an individual case is a matter for the sentencer who is guided by precedent and by the judgments of the superior courts. If the Committee were to accept the new clause, a sentencing council would issue guidelines in respect of sentencing policy. The courts would be required in some way to follow the guidelines. That is bound to involve encroachment on Parliament's authority to determine the sentencing policy and the courts' authority in applying that policy.

It has been suggested, although not today, that the problem could be avoided by having the sentencing council's guidelines promulgated in a statutory instrument. If that were to happen, it would reduce Parliament and indeed Ministers to the role of a rubber stamp. If Ministers or Parliament disagreed with the council's recommendations, whose views would then prevail? Expert as the members of a sentencing council might well be—although not in the council proposed by the noble Earl, Lord Longford—I suggest that it would not be right for them to impose their views on Parliament, Ministers and the judiciary. It would be a constitutional innovation.

I suggest that it would be a very grave step to ask Parliament and the courts to cede some of their authority to a sentencing council. Before we contemplate that, we must ask ourselves what the proposal achieves. How would it improve the arrangements for ensuring consistency in sentencing? The Bill sets out clearly the criteria for sentencing in the vast majority of cases. The Court of Appeal has already given guideline judgments on a number of offences. It is not a fact that Court of Appeal judgments are confined to major offences such as rape. Guidance has been given, for example, on sentencing for social security fraud and such offences. The Bill will give a basis for extending such guidance to many other offences. I suggest that this combination of legislation and the Court of Appeal guidance is perfectly adequate to bring about consistency in sentencing.

What would a sentencing council add? If it made any difference, I fear that it would be only in the direction of replacing the consistency which is the hallmark of justice with uniformity. We all know that bureaucratic bodies, especially quangos—to which my noble and learned friend Lord Hailsham quite rightly referred—soon acquire, curiously enough, a momentum and life of their own. I fear that the sentencing council would soon devise sentencing rules for any and every kind of case. Indeed, the noble Lord, Lord Richard, referred to the possibility of it giving guidance on sentencing for such offences as burglary.

At the end of that road lies what is called the sentencing grid. That is a practice in some parts of the United States. It dictates a narrow range of sentences for each offence leaving sentencers with very little discretion to take account of the circumstances of each case. That has two results—rigidity, and injustice in individual cases. In a most interesting speech on Second Reading, my noble friend Lord Howe quoted the case of a man who was sentenced to 10 years' imprisonment for tweaking the bottoms of two ladies. He was given that sentence because that was what the sentencing commission had decreed to be the immutable penalty for indecent assault. Saddled with such rigidity, jurors might prefer to acquit rather than expose offenders to what they considered would be unjust penalties.

The second result—one which the noble Earl, Lord Longford, would not like—is that there might be more rather than fewer people in prison because sentencers were given less discretion to mitigate the penalty where appropriate. A further consequence reported in the United States is that the discretion tends to shift to the prosecutor because the prosecutor's decision about which charge to bring effectively determines the sentence that can be awarded.

I know that the Committee is anxious to see more consistency in sentencing. I have great sympathy with that. I know that the Committee is anxious to ensure that people who would better be dealt with outside do not go to prison. With that I agree. However, I hope that the Committee will agree that our system at the moment is better, more flexible and less rigid without having a sentencing council than it would be were we to have a sentencing council.

4.15 p.m.

The Earl of Longford

Many years ago Sir Winston Churchill was interrupted by some hot-blooded Back-Bencher. When he had time to collect himself, he replied, "I do not feel altogether extinguished by that observation". I cannot say that I feel extinguished by any observations on my amendment today. There have not been many, but those that were made seemed to be based on a misapprehension.

The noble Earl, Lord Ferrers, talked about taking power from Parliament and issuing instructions. He obviously has not read the amendment. He is a busy man, and there are many amendments to come. I know how devoted he is to the House. He might consider it worth reading the amendment of the noble Lord, Lord Richard, even if he did not consider mine worth reading. Amendment No. 1 states: It shall be the duty of the Sentencing Council to consider and review sentencing policy and from time to time to issue guidelines in respect thereof".

No one can say that that refers to issuing instructions. It refers to guidelines. The noble Earl ought to speak to his advisers. They mostly do a good job but not today; they have got it absolutely wrong. He has been wrongly advised. I do not expect much more from him today on this particular subject.

I realise that my amendment needs some meditating on. People will have to think about it a bit. Most people do not know anything about it: they do not get the beauty of it at all. So although I may not be able to return to that at the next stage, perhaps I can turn to something still more enlightened and if people read my few remarks in Hansard they may get some idea. In other words, I shall be back next time. I am not withdrawing the amendment. I do not expect any support on this occasion but next time things may be different.

On Question, Amendment No. 2, as an amendment to Amendment No. 1, negatived.

Lord Richard

Perhaps I may at this stage compliment the noble Earl, Lord Ferrers, on making a speech which, so far as I could see at any rate, he did not believe a word of.

Noble Lords

Oh!

Lord Richard

No, really. In time-honoured parliamentary fashion, what the noble Earl did was to set up two arguments, neither of which has been put forward from this side of the Committee, and then proceed to knock them down with considerable forensic skill. There is nothing whatever in the amendment about this being done by parliamentary instrument; there is nothing in it which says that Parliament would merely rubber-stamp what the sentencing council said. The amendment is quite specific in its wording as to how the decisions or the advice of the sentencing council would emerge. They would emerge as the Court of Appeal's decisions and determinations now emerge: namely, by guidelines which the courts would have to look at and follow if the circumstances were right.

Secondly, the Minister again raised the question of the grid. Nobody is suggesting that there should be anything like that. Nobody is contemplating for an instant that we should move to a situation similar to that in some parts of the United States of America, where I agree that there is perhaps an absurd degree of rigidity in the way this matter is approached. We are suggesting that the judges of the Court of Appeal should be assisted by advice from external disciplines and then, having had the benefit of that advice, they should probably get guidelines in respect of matters which at the moment they have not considered.

My noble friend Lord Longford said that he thought his proposal was "wet", but if his was wet mine is sodden. However, having heard the non-arguments against the amendment put by the noble Earl, Lord Ferrers, I feel obliged to test the opinion of the Committee.

4.22 p.m.

On Question, Whether the said amendment (No.1) shall be agreed to?

Their Lordships divided: Contents, 91; Not-Contents, 152.

Division No. 1
CONTENTS
Addington, L.	Hylton, L.
Allen of Abbeydale, L.	Irvine of Lairg, L.
Ardwick, L.	Jacques, L.
Birk. B.	Jay, L.
Blackstone, B.	Jenkins of Putney, L.
Blease, L.	John-Mackie, L.
Bonham-Carter, L.	Kagan, L.
Boston of Faversham, L.	Kennet, L.
Bottomley, L.	Kilbracken, L.
Bruce of Donington, L.	Listowel, E.
Campbell of Eskan, L.	Llewelyn-Davies of Hiastoe, B.
Carmichael of Kelvingrove, L.	Longford, E.
Castle of Blackburn, B.	Lovell-Davis, L.
Cledwyn of Penrhos, L.	McIntosh of Haringey, L.
Clinton-Davis, L.	Mason of Barnsley, L.
Cocks of Hartcliffe, L.	Molloy, L.
David, B.	Morris of Castle Morris, L.
Donaldson of Kingsbridge, L.	Mulley, L.
Dormand of Easington, L.	Nicol, B.
Ewart-Biggs, B.	Northbourne, L.
Ezra. L.	Oram, L.
Falkland, V.	Parry, L.
Fisher of Rednal, B.	Peston, L.
Foot, L.	Pitt of Hampstead, L.
Gallacher, L. [Teller.]	Prys-Davies, L.
Galpern, L.	Richard, L.
Gisborough, L.	Ritchie of Dundee, L.
Gladwyn, L.	Robson of Kiddington, B.
Glenamara, L.	Rochester, L.
Graham of Edmonton, L.	Sainsbury, L.
Grey, E.	Seear, B.
Hampton, L.	Sefton of Garston, L.
Hanworth, V.	Serota, B.
Harris of Greenwich, L.	Shaughnessy, L.
Hatch of Lusby, L.	Shepherd, L.
Hayter, L.	Stallard, L.
Henderson of Brompton, L.	Stedman, B.
Holme of Cheltenham, L.	Stoddart of Swindon, L.
Howie of Troon, L.	Strabolgi, L.
Hughes, L.	Taylor of Gryfe, L.
Hunt. L.	Thomson of Monifieth, L.
Hutchinson of Lullington, L.	Tordoff, L. [Teller.]

Underhill, L.	L.Williams of Elvel, L.
Walston, L.	Winchilsea and Nottingham, E.
Whaddon, L.	Winterbottom, L.
	White, B.

NOT-CONTENTS
Abinger, L.	Joseph, L.
Ailesbury, M.	Killearn, L.
Aldington, L.	Kimball, L.
Alexander of Tunis, E.	Kimberley, E.
Alexander of Weedon, L.	Kinloss, Ly.
Allenby of Megiddo, V.	Kintore, E.
Alport, L.	Kissin, L.
Ampthill, L.	Knollys, V.
Arran, E.	Knutsford, V.
Astor, V.	Lauderdale, E.
Auckland, L.	Layton, L.
Belhaven and Stenton, L.	Leathers, V.
Belstead, L.	Lloyd of Hampstead, L.
Bessborough, E.	Lucas of Chilworth, L.
Birdwood, L.	Lyell, L.
Blatch, B.	Mackay of Clashfern, L.
Bledisloe, V.	Macleod of Borve, B.
Blyth, L.	Mancroft, L.
Boyd-Carpenter, L.	Manton, L.
Brabazon of Tara, L.	Margadale, L.
Bradford, Bp.	Marsh, L.
Brain, L.	Merrivale, L.
Brightman, L.	Mersey, V.
Brougham and Vaux, L.	Middleton, L.
Butterworth, L.	Milverton, L.
Byron, L.	Monckton of Brenchley, V.
Caithness, E.	Montgomery of Alamein, V.
Caldecote, V.	Morris of Kenwood, L.
Campbell of Alloway, L.	Mottistone, L.
Campbell of Croy, L.	Mountevans, L.
Carnarvon, E.	Munster, E.
Carnegy of Lour, B.	Murton of Lindisfarne, L.
Carnock, L.	Nelson, E.
Cavendish of Furness, L.[Teller.]	Nelson of Stafford, L.
Clanwilliam, E.	Norrie, L.
Cochrane of Cults, L.	Nugent of Guildford, L.
Coleraine, L.	O'Brien of Lothbury, L.
Colnbrook, L.	Onslow, E.
Constantine of Stanmore, L.	Orr-Ewing, L.
Cork and Orrery, E.	Oxfuird, V.
Cottesloe, L.	Park of Monmouth, B.
Cross, V.	Pender, L.
Cullen of Ashbourne, L.	Perth, E.
Davidson, V. [Teller.]	Peyton of Yeovil, L.
Downshire, M.	Platt of Writtle, B.
Elibank, L.	Plummer of St. Marylebone, L.
Ellenborough, L.	Portsmouth, Bp.
Elliot of Harwood, B.	Rankeillour, L.
Elliott of Morpeth, L.	Reay, L.
Elphinstone, L.	Renton, L.
Elton, L.	Renwick, L.
Erroll, E.	Saltoun of Abernethy, Ly.
Ferrers, E.	Shannon, E.
Rather, B.	Sharples, B.
Fortescue, E.	Simon of Glaisdale, L.
Fraser of Carmyllie, L.	Skelmersdale, L.
Fraser of Kilmorack, L.	Slim, V.
Gainsborough, E.	Soulsby of Swaffham Prior, L.
Geddes, L.	Stanley of Alderley, L.
Grantchester, L.	Strange, B.
Gridley, L.	Strathcarron, L.
Hailsham of Saint Marylebone, L.	Strathclyde, L.
Hardinge of Penshurst, L.	Strathspey, L.
Harmar-Nicholls, L.	Sudeley, L.
Harmsworth, L.	Swinfen, L.
Harvington, L.	Swinton, E.
Henley, L.	Tenby, V.
Hesketh, L.	Terrington, L.
Hirshfield, L.	Teviot, L.
Howe, E.	Thomas of Gwydir, L.
Hylton-Foster, B.	Trumpington, B.
Johnston of Rockport,	Tryon, L.
	Ullswater, V.
	Vaux of Harrowden, L.

Waddington, L.	Wise, L.
Wade of Chorlton, L.	Wynford, L.
Whitelaw, V.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Reay

This might be a convenient moment to take a Statement. I beg to move that the House do now resume.

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

House resumed.