HL Deb 14 May 1991 vol 528 cc1480-544

3.7 p.m.

Report received.

Clause 1 [Restrictions on imposing custodial sentences]:

Earl Ferrers moved Amendment No. 1: Page 1, leave out lines 9 to 13 and insert ("punishable with a custodial sentence other than one fixed by law.").

The noble Earl said: My Lords, I believe that it would be helpful to speak to Amendments Nos. 2, 3, 6, 7, 8, 11, 14, 15, 16, 17, 18 and 26.

When the Bill was debated in Committee, your Lordships felt that we did not have it quite right and there were some areas where it could be further improved. I hope that I shall be able to show that we listened to what was said and have tried to meet your Lordships on a number of points of concern even if we were unable to do so in every case.

When we discussed Clauses 1 to 3 in Committee your Lordships made a strong case for bringing indictable-only offences within the sentencing framework. You argued that the clear and simple principles governing the aptness and length of custodial sentences should apply in all cases. This would avoid the possibility of anomalies arising from parallel but different sentencing regimes for indictable-only offences as opposed to other offences.

Having reflected upon what noble Lords said, we accept those arguments. Amendment No. 1 to Clause 1(1) extends the restrictions on custody to all offences except those where the sentence is fixed by law. That includes indictable-only offences, whether or not the offender has previously received a prison sentence. Since previous prison sentences are no longer to be relevant, Amendment No. 6 deletes Clause 1(6) (which allows certain previous prison sentences to be disregarded for the purposes of Clause 1).

Amendment No. 1 has the same effect as Amendment No. 2 tabled by the noble Lords, Lord Richard and Lord Hutchinson of Lullington. However, I fear that it will not please the noble and learned Lord, Lord Ackner, whom I see in his place. I had thought that he was not there. He was merely bowing below the level of the seat and not at me. The amendment tabled by the noble and learned Lord would take out of Clause 1 not only those offenders aged 21 or over convicted of an indictable-only offence who had previously received a prison sentence, but also such offenders as had previously received a custodial sentence in a young offenders' institution. The sentencing principles in Clause 1 are important and valuable. We are persuaded that they should extend to all offenders, including those convicted of the most serious offences, who have received a prison sentence in the past. This is consistent with the Bill's philosophy that an offender should not be placed at a disadvantage because of his previous record.

Similarly, Amendment No. 7 extends Clause 2 to all indictable-only offences except where the sentence is fixed by law. At present, it applies only to summary or either-way offences. Again, the amendment has the same effect as Amendment No. 8, tabled by the noble Lords, Lord Richard and Lord Hutchinson of Lullington. It is important that Clauses 1 and 2 should apply to the same cases. It would be anomalous if an offender could be sent to prison for rape under the criteria in Clause 1 but could not have the length of his sentence determined under Clause 2.

Amendment No. 11 enables a court to impose a longer custodial sentence under Clause 2(2)(b) on young offenders convicted of violent or sexual offences. Given that Clause 2 will now apply to indictable-only offences, it would be strange if, to protect the public, the court could impose a longer sentence on a 21 year-old rapist but not on one who was 20 years old. Amendment No. 14 is consequential. It requires a court to give reasons for imposing a longer custodial sentence on a young offender as well as an adult offender under Clause 2(3).

Amendment No. 15 provides that a life sentence is always to be regarded as longer than any determinate sentence for the purpose of deciding what length of custody is justified under Clause 2. This is necessary because the extension of Clauses 1 and 2 to indictable-only offences brings discretionary life sentences within their scope. If, for example, a judge was sentencing two offenders for rape, and if he thought that the one was more unstable than the other and therefore posed a greater risk to the public, he could demonstrate this by imposing sentences of, say, 12 years for the first offender and life for the second.

Amendments Nos. 16 and 17 to Clause 3 provide that a court must obtain a pre-sentence report in every case covered by Clauses 1 and 2, with one exception. A court will not have to obtain a report if the offender is convicted of an indictable-only offence and if the court believes that it is unnecessary to obtain one in the circumstances.

The noble Lord, Lord Richard, and others may think that this does not go far enough and that there should be no exceptions. But, as I said in Committee, it is important not to put the courts and the probation service to unnecessary effort in preparing and considering reports in cases where they are not needed. Indictable-only offences are very serious and we should accept that in a number of cases it would simply be pointless for the court to obtain a report. The solution which we have adopted takes up the ingenious suggestion made by my noble friend Lord Elton in Committee; that the criteria in Clauses 1 and 2 should apply in indictable-only cases but not the requirement to obtain a pre-sentence report. In fact we have been able to go a little further than that by requiring reports to be obtained but providing an exception. This exception reflects the existing law in the Powers of Criminal Courts Act 1973 and Criminal Justice Act 1982. Section 20A of the 1973 Act and Section 2 of the 1982 Act require a court to obtain a social inquiry report before sending to prison a young offender or someone who has not received a previous prison sentence unless the court thinks that a report would be unnecessary in the circumstances. That is the wording that we have used in the amendment.

The effect of these and the earlier amendments is that the principles of sentencing in Clauses 1 and 2 will extend to indictable-only offences but the court will not have to obtain a report under Clause 3 if it would clearly be unnecessary to do so. I am indebted to your Lordships and in particular to my noble friend Lord Elton for his valuable suggestion, which enabled us to arrive at this proposal. I hope that it will meet with the approval of the House. Amendments Nos. 18 and 26 make some minor and consequential drafting changes. I beg to move.

The Chairman of Committees (Lord Aberdare)

My Lords, if this amendment is agreed to, I cannot call Amendments Nos. 2 and 3.

3.15 p.m.

Lord Richard

My Lords, I thank the Government for having accepted the logic of the case which Members from all sides of the House expressed in Committee. The omission of indictable-only offences from the sentencing structure which the Bill sets up was difficult to justify in common sense or in logic. We are all grateful for the fact that the Government have now accepted that fact.

The Minister said that noble Lords would be disappointed about one aspect; namely, that it is still possible for a judge to sentence an offender without obtaining a pre-sentence report. I believe that the circumstances under which a judge will come to the conclusion that such a report is unnecessary are already covered under the Court of Appeal guidelines. They will relate to particular offences of a particular gravity which will demand custodial sentences. In those circumstances I can see the common sense of arguing that a judge should not be under a duty to demand a pre-sentence report. I own to a tinge of disappointment about that aspect of the proposals. However, it is only a tinge and we on this side of the House grateful to the Minister for having moved the amendments.

Lord Hutchinson of Lullington

My Lords, I too congratulate the Minister and the Government on moving the amendment. It is in exactly the same terms as the amendment which I moved in Committee. On that occasion I said that I believed it to be the most important amendment in the Marshalled List. I remain of the same view. On Second Reading nine-tenths of my speech related to this very issue. I owe the Government congratulations and gratitude for moving the amendment.

For the first time Parliament is to enact a principle which will govern sentencing in every criminal court in this country. In other words, sentencing is too important a matter to leave to the sentencers. That is a great breakthrough. Self-congratulation on the part of the Government is justified by having made such a breakthrough in the whole sentencing process.

I turn to Amendment No. 17. Will the Government consider adding the words "if the accused agrees"? I have always understood that on occasion it is unnecessary to require pre-sentence reports. However, the situation would be made more satisfactory by the addition of those words because there would be no dispute or argument. I am sure that in nine cases out of 10 in which the judge has said that he does not require a report before sentencing he would accede to a request from the defence if it wished for a report. Therefore, the situation would be more satisfactory if those words were included at a later stage.

Baroness Phillips

My Lords, before the noble Lord sits down, will he explain what he meant by saying that sentencing is too important to be left to the sentencers?

Lord Hutchinson of Lullington

My Lords, I am always satisfied when I get the noble Baroness to her feet. I am always ready to instruct her on these matters. By those words I mean that for years the view has been taken that it is not for Parliament to interfere with the complete discretion of the judiciary and magistracy on important matters of sentencing. Unfortunately, in this country we sentence people to longer sentences and fill our prisons with more people than any other country in Western Europe. That has been the result of sentencing by the courts. Fortunately, now Parliament has at last taken a hand.

Lord Renton

My Lords, I too welcome the first amendment and the others which my noble friend moved. It shows that the Government have an open mind when listening to your Lordships. One lives in hope that there will be further understanding as the Bill progresses.

For the sake of the record and in order to remove uncertainty in the minds of any of us who may feel uncertain about it, I wonder whether my noble friend will explain the need to add the words: other than one fixed by law".

Earl Ferrers

My Lords, I am grateful to your Lordships for expressing such appreciation for these amendments. The noble Lord, Lord Hutchinson, said that self-congratulation on the part of the Government was understandable. However, we should not wish to indulge in it. I am grateful to your Lordships for helping us find our way round some fairly difficult points. I am glad that that has met with approval. My noble friend Lord Renton said that that may be a good omen for the rest of the Bill. I am sure that it is and let us make sure that we continue in that way.

The noble Lord, Lord Hutchinson, asked whether we could add the words "if the accused agrees" before the judge decides to obtain a pre-sentence report. We shall certainly look at those words. My guess is that the conclusion will be that the matter should be left at the discretion of the judge.

My noble friend Lord Renton referred to the words: other than one fixed by law". That refers to murder, which is the only offence for which the penalty is fixed by law. It may need to be looked at again in the light of our further debates on mandatory life sentences. But that is the reason for the phraseology. I am grateful for your Lordships' approval.

Lord Hailsham of Saint Marylebone

My Lords, before my noble friend sits down, will he agree that the sentence for treason is also fixed by law?

Earl Ferrers

My Lords, I am sure that my noble and learned friend is right and I should not like to disagree with him.

On Question, amendment agreed to.

The Chairman of Committees

My Lords, if Amendment No. 4 is agreed to, I cannot call Amendment No. 5.

Lord Windlesham moved Amendment No. 4: Page 1, line 14, leave out subsection (2) and insert: ("(2) Subject to subsection (3) below, a magistrates' court shall not pass a custodial sentence on the offender unless it is of the opinion that the offence, or the combination of the offence and one other offence associated with it, was so serious that only such a sentence can be justified for the offence. (2A) Subject to subsection (3) below, the Crown Court shall not pass a custodial sentence on the offender unless it is of the opinion.

  1. (a) that the offence, or the combination of the offence and one other offence associated with it, was so serious that only such a sentence can he justified for the offence; or
  2. (b) where the offence is a violent or sexual offence, that only such a sentence would be adequate to protect the public from serious harm from him.").

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 9 and 13 which stand in my name and that of the noble Lords, Lord Hutchinson of Lullington and Lord Richard. It will be seen that these amendments have the support of noble Lords on each side of the House.

On Second Reading and again in Committee there was a general welcome for the sentencing reforms contained in Part I of the Bill. We have heard from the noble Earl, Lord Ferrers, that some amendments have now been accepted by the Government and they too are generally welcome. I believe however, that there are still flaws which are likely to inhibit the effectiveness of this part of the Bill when enacted. The first is the ambivalent handling of previous convictions. That matter is still unresolved. I shall look carefully at what the noble Earl said in moving the first group of amendments this afternoon, but I suspect that the extent to which previous convictions may be taken into account by sentencing judges will by no means be certain when.the Bill reaches the statute book.

The second flaw is the subject of the amendments now before us; that is, the attempt to resurrect the discredited notion of preventive detention for certain categories of sexual or violent offences. Amendments Nos. 4, 9 and 13 arise directly out of the debate we had in Committee on the provision which enables the courts to impose more severe sentences than the offence deserves on violent or sexual offenders where the courts judge it to be necessary in order to protect the public from serious harm. After studying the reply which the noble Earl gave on behalf of the Government in Committee—on that occasion the amendment sought to delete the power from the Bill—it became evident that what was troubling Ministers was the need for consistency between Clauses 1 and 2.

My noble friends in the All-Party Penal Affairs Group accept, however reluctantly, that the Committee decided, on a vote, to retain the power of the courts to impose more severe sentences than the offence justifies in certain cases. If I understand correctly the amendments which the House has just accepted, indictable offences will now also be brought within the scope of this provision which, at any rate, has the advantage of consistency behind it.

Therefore, we need to re-examine the wording of Clauses 1 and 2. I assure the House that these further amendments are a genuine attempt to relate the drafting more precisely to the Government's declared intentions.

If we begin with a proposition which we can all agree upon, namely, that it is a basic principle of justice that the severity of sentences should be proportionate to the just deserts of the offender, and if we are to enable courts to depart from that principle, I believe we must then agree that the circumstances in which they are allowed to do so should be carefully considered and spelled out. The limitations must be clearly understood and properly argued.

It is absurd to suggest that a short period of imprisonment of the length which magistrates may impose could effectively protect the public from serious harm. Serious harm is defined in the Bill as, death or serious personal injury, whether physical or psychological".

The topping up power, as it is known, applies to the magistrates' courts as well as to the Crown Court. In the magistrates' courts sentencing powers are limited to a period of six months' imprisonment. Remission of one half makes that effectively three months in custody. Magistrates may pass consecutive sentences, but only up to a total maximum of 12 months. Again, with half remission, that means a maximum period of six months in custody. It cannot seriously be argued that imprisonment for such short lengths of time can effectively protect the public from "death or serious personal injury".

When the Government first proposed in last year's White Paper, Crime, Justice and Protecting the Public, to empower courts to pass longer sentences than the offence deserves, it was explained that this exceptional power should be restricted to the Crown Court. The White Paper cited the example of an offender convicted of an offence of causing actual bodily harm which would normally merit a 12-month sentence. It said in paragraph 3.13 that under the proposed legislation, … the Crown Court could give a longer sentence, up to the maximum penalty of five years, if it considered this necessary to protect the public from the risk of serious harm from the offender".

The arguments for restricting the power to the Crown Court remain as powerful now as they were then. The facility to impose disproportionate sentences—for that is what they will be—is ostensibly limited to violent and sexual offences. That is the wording of the Bill. However, as the Bill is drafted there must be a risk that the breadth of the definition of a violent offence—in Clause 29 defined inter alia as an offence which is likely to lead to death or physical injury—would enable some magistrates to use the power in relation to offences which are in reality offences against property.

For example, magistrates could argue that cases of taking and driving away vehicles carried the risk of causing physical injury and could consequently pass disproportionate sentences on young people convicted only of taking and driving away. That would be very different from the public perception of a violent offence—generally regarded as being a serious matter—which would normally come before the Crown Court, and a far cry from the Government's original intention as set out in the White Paper to which I have referred.

Those are the reasons why the amendments would restrict to the Crown Court the power to impose more severe sentences on certain categories of offender than the offence would otherwise justify. The combined result of the three amendments on the Marshalled List would remove the power from the magistrates' courts, leaving it only with the Crown Court.

I doubt whether I am alone in continuing to find this power unnecessary and, indeed, objectionable. But the House in Committee decided on its retention and it would not be proper to return to that matter again on Report. The correct course of action is to look at the wording of the first two clauses taken together, ensuring that there is internal consistency, and relating the provisions in the Bill directly to the Government's intentions and explanations. I beg to move.

Lord Richard

My Lords, I follow the noble Lord, Lord Windlesham, in supporting the amendments. What fundamental to them is the structure set out in the Bill. One starts with the basic principle, with which I am sure everybody in the House agrees, of "just deserts"—the principle that people should be sentenced in proportion to the offence that they committed. That is the starting point of any argument. If we move away from that and give courts powers to impose sentences which by definition are not proportionate but indeed are disproportionate to the offence of which the person was convicted, it is important to be certain of the circumstances in which we intend to do that. The Bill, at any rate in legal language, sought to do precisely that.

Clause 1 enables courts to impose custodial sentences even though the seriousness of the offence would not require custody. Clause 2 empowers courts to make sentences longer than the offence deserves. The relationship between on the one hand, the principle of just deserts and the derogation from that in the Bill and, on the other, the powers of the magistrates' courts, lies at the heart of the amendments.

We know that magistrates' courts have very limited powers. Normally their maximum sentence is six months. With remission of half the sentence we are therefore speaking of a three-month period of imprisonment. Even if magistrates impose consecutive sentences they can only go up to 12 months. With remission, therefore, we are again speaking of only six months. It is almost a distortion of language to argue that a three-month sentence imposed by the magistrates' court is one which is necessary to effectively protect the public from serious harm.

I remind the House that in the Bill serious harm is defined as, death or serious personal injury, whether physical or psychological". In those circumstances if the powers of the magistrates' courts to protect the public from serious harm are as derisory as they are in the exercise of the powers that they already possess, why should the power be given to the magistrates' courts? By definition, if their powers are so limited then they will not be capable of imposing the sentences which the derogations in the Bill to the principle of just deserts were designed to catch.

It appears to me and to others who support the amendments that to confine that power to Crown Courts not only makes sense but also is very logical. That is the court which will deal with major crimes and the court which is capable of imposing sentences which may possibly protect the public from serious harm. I hope that the Government will take the view that confining the power to the Crown Court not only makes common sense at this stage of the passage of the Bill but also, as the noble Lord, Lord Windlesham, pointed out, is very much in accordance with what I understood Government policy to have been until we saw the Bill in draft. I support the amendments.

Lord Hutchinson of Lullington

My Lords, perhaps I might add a few words in support of the amendments, which I suggest to the House are overwhelming in the face of the arguments put forward by the noble Lord, Lord Windlesham.

The trouble with the topping-up procedure is that we enter an area of sentencing where we are punishing someone for what they may do in the future rather than for what they have actually done. Once one enters into that area one brings into play as many subjective judgments as there are courts in the land. In the case of magistrates' courts, that means 28,000 subjective judgments.

By allowing the power to be used in relation to all sexual offences the Bill picks out the one type of offence which all modern research, common sense and experience shows is the most unsuitable for long custodial sentences except in the most appalling cases. There is a serious danger that magistrates' courts will justify wholly inappropriate custodial sentences for certain sexual offences that arouse emotional response and give rise to all kinds of irrational prejudices; for example, offences such as gross indecency or importuning for immoral purposes and so forth. I do not know whether the Minister will once again in this case display his ability to be not only a noble Earl but a listening Earl. If he is unable to accept the amendment I hope that he will agree to take it away and give it further thought.

Lord Renton

My Lords, at Committee stage my noble friend Lord Windlesham moved an amendment to remove from Clause 2 the reference to sexual and violent offences, which he deals with in Amendment No. 9, which is grouped with Amendment No. 4 and now under discussion. At Committee stage it was pointed out that we might very well have tried to remove violent or sexual offences from Clause 1. My noble friend has tabled amendments which are in effect a compromise compared with the argument that he put forward in Committee. The compromise is an improvement. I welcome that. But I regret that we are still singling out violent or sexual offences as offences against which the public needs protection from the offender, when there are a great many other offences which molest the public, especially old ladies living alone, where the offence is not violent or sexual.

However, taking it as one finds it, the amendment is an improvement. If it is agreed to, I may decide at Third Reading to move to amend the provision still further and delete subsection (2A) (b) and the equivalent provision in Clause 2.

Lord Ackner

My Lords, I merely intervene to say that the issue to which the noble Lord, Lord Renton, refers is the subject matter of Amendment No. 12. Therefore I shall say nothing about it until that amendment is reached.

Earl Ferrers

My Lords, the noble Lord, Lord Hutchinson, hopes that we shall listen. Of course we shall listen. I shall take careful note of what your Lordships say. We believe that the power to impose a custodial sentence should continue to be available to a magistrates' court as well as to the Crown Court for a violent or sexual offender in order to protect the public from serious harm from him. The reason is simple. There may be instances where a violent or sexual offence is not of itself serious enough to justify a custodial sentence but it may be a case where the public need protection from the offender and such a sentence will provide that protection.

My noble friend Lord Windlesham said that magistrates cannot impose a prison sentence long enough to protect the public. Clause 29 gives a definition for protecting the public, from death or serious personal injury, whether physical or psychological, occasioned by further such offences committed by him". Let us consider for a moment the example of a motorist who may be convicted of reckless driving. In itself that may not be serious enough to warrant custody. The circumstances of the offence, and perhaps previous similar offences, may suggest that the motorist's driving is likely to cause serious injury to another driver or pedestrian. In that kind of case a custodial sentence would protect the public by taking the offender out of circulation. It would also be a fairly salutary experience for him.

Lord Windlesham

My Lords, perhaps the noble Earl will answer a question on a point of information. Is it likely that a serious offence of reckless driving would be prosecuted in the magistrates' court with the sentence also being passed in that court?

3.45 p.m.

Earl Ferrers

My Lords, I do not know whether it is likely but it is possible. Those are the kinds of occasion where a custodial sentence could be appropriately available for the protection of the public. If we accept that a magistrates' court needs to be able to impose a custodial sentence for the protection of the public—some noble Lords do not accept that proposition—we have to consider how the court is to calculate the length of the sentence. If it is required to do so on the basis of the seriousness of the offence alone, it will have a problem if the offence is not serious enough to justify a custodial sentence. Logically it would have to impose a sentence of no months, which would be quite absurd.

Clause 2(2) (b) gets around the problem by allowing a magistrates' court to impose a longer sentence on a violent or sexual offender than the seriousness of the offence itself would warrant. The power of the magistrates' court to give a longer sentence in order to protect the public is limited by its general sentencing power to which my noble friend Lord Windlesham referred. The power of sentence is six months for a single offence or 12 months to run consecutively for two or more either way offences.

The example that I suggested to your Lordships would enable a magistrates' court to send a reckless driver to prison for up to six months. Under the proposals in Part II of the Bill three months would be spent in custody before release. I do not think it is a question of magistrates being able to lock people up for a long time. The important point is that the magistrates' court will be able to impose a custodial sentence which takes the offender out of circulation and the public is protected from him for the length of time he spends in custody, and also thereafter if the custodial sentence causes the offender to rethink his behaviour. That is the reason why we believe that it is correct to leave the Bill as it is.

Lord Mishcon

My Lords, does the noble Earl wish to restrict his defence of the amendment to the example he gave of protecting the public in a case of reckless driving? Does not the statute enable the magistrates' court to protect the public in the most effective way by suspending the driving licence? Does he not agree that that is much more effective than putting an offender in prison for three months, six months or nine months?

Earl Ferrers

My Lords, that may be so. That is the trouble with giving an example—someone like the noble Lord, Lord Mishcon, then picks it to pieces. The fact is that the courts have that ability. We suggest that they should continue to have it. If the noble Lord, Lord Mishcon, was sitting in that court he might take the option which he described; another court might take a different option.

Baroness Phillips

My Lords, I wish to come to the defence of the noble Earl, Lord Ferrers. The noble Lord, Lord Windlesham, does not need to worry about a person being charged with reckless driving. I have recently been personally concerned with a case involving six cars. So far the Police and Criminal Evidence Act has made it possible that the young man concerned will not be charged with anything. Therefore, there is no danger that he will be put inside, although he should be. No one was killed but some people came very near to it.

I find a great deal of the argument unreal and that is why I have avoided becoming involved with the Bill. I know that I am in a minority in this House, but I do not believe that I am in a minority as regards the feelings of the general public. We have recently heard of a sexual offence which I believe was referred to as being of a minor nature. How can a sexual offence be anything other than what it is—an offence which deserves punishment?

I read recently about a young man who held up a bank because he wanted to help his father. Because the offender was so humble and wimpish the court felt sorry for him. The fact that he had gone to the bank with a gun did not seem to come into the matter. Another young man could not have a relationship with a woman so he went out and raped two people at night. I am sure that these examples are of a minor nature to a Law Lord who sits dispassionately discussing them here. However, they are not minor matters to the victims. We should think carefully when considering any kind of violent or sexual offence before providing an opportunity for the offender to commit that kind of crime again.

Lord Hailsham of Saint Marylebone

My Lords, I was slightly disconcerted, and probably wrongly so, by the example of reckless driving. I have looked at the definition in Clause 29. I can see why my noble friend referred to it in that sense but I very much question whether reckless driving as such is necessarily a violent offence at all. If I were charged—as I hope I never shall be—with driving under the influence of alcohol or with an excessive amount of alcohol in my blood, the matter could, if my noble friend is right, equally come within the words of Clause 29. I believe that violence must involve an element in the actual charge of an offence. It must involve the use of violence and not of something reckless in the sense in which it has been defined by this House in the case of Caldwell and in the case of Lawrence. I hope that my noble friend will take that into account. I may be talking nonsense but I do not think that I am.

Lord Hylton

My Lords, I should like to—

Lord Elton

My Lords, while the noble Lord, Lord Hylton, is considering whether to return to the charge, it seems to me that we are being led slightly aside from the issue. I say that because my noble friend was doing what I have often done in the past. I refer to illustrating a principle with perhaps not the most apposite of illustrations. However, the principle that we are seeking to define and to decide on is whether the court in the cases that we all have in mind—not necessarily dangerous driving—should have the option which the Bill provides or whether it should be removed as the amendment provides.

I say that merely as a layman. My noble friend was kind enough to thank me for an idea I had on the first group of amendments. That gave me particular pleasure because I am not now in order and neither is he. When I see him in difficulty, therefore, I have a natural affinity with him which perhaps some noble Lords d a not share.

Earl Ferrers

My Lords, with the leave of the House, perhaps I may be permitted to speak again. My noble friend Lord Elton is entirely right—although I am not referring to what he said about coming to the help of his noble friend, for which I am grateful—to say that I used an example in order to illustrate a position. We tend to get our eyes off the main point and go down the track of whether an example used was a good one. I gave the example only because some cases of reckless driving will fall within the definition of violent offences in Clause 29(1). The suspension of a driving licence just does not work if the person is driving while he is already suspended, as happens in a good many cases. We must not get unduly drawn down that track.

Obviously noble Lords feel concerned about this but I think the Government are right. However, without giving any undertaking or guarantee that I shall change anything, I shall certainly consider what noble Lords have said if that is a help to the House.

Lord Windlesham

My Lords, I welcome those heartening words of the noble Earl. The conclusion of this short debate is that the limited sentencing powers of the magistrates' courts are incompatible with the objective the Government are pursuing. Whether we regard the objective as desirable or not is another question and one we disposed of at Committee stage. Sentencing powers are so limited in the magistrates' courts, and the offences towards which these provisions are directed are so serious that the proper place for them to be tried is in the Crown Court. Indeed, the Government seemed to have accepted that proposition in the amendments carried half an hour ago whereby the topping-up provision is to be extended from offences triable either way to those triable only on indictment.

I am glad the noble Earl has said that he and the Home Secretary are prepared to reconsider this matter, without commitment, before Third Reading. I do not wish to rehearse the arguments again. I simply remind the House, and the noble Earl, that the magistrates' courts were not included in the scope of this provision in the Government's White Paper; nor, with due respect to the noble Lord, Lord Richard, was this power extended to the magistrates' courts when the Bill was published. It was an addition at Report stage in the House of Commons. I made some inquiries, lest my honourable friends on the Government Benches had a burning zeal for this change to be made in Committee in another place. I was told this was not so. It was added by the Home Office in the interests of consistency of drafting.

The House has now amended quite substantially the wording of Clauses 1 and 2 in the amendments which have been passed this afternoon. That is a further reason why the Minister may wish to look again at this proposal to see whether the references to the magistrates' courts might be deleted without damaging the Government's policy objectives. Having made that plea, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ackner moved Amendment No. 5: Page 1, line 16, leave out ("one other offence") and insert ("other offences").

The noble and learned Lord said: My Lords, during the latter part of our Committee proceedings I apologised for not raising on the first day of Committee the amendments of the kind I am raising now. I was out of the jurisdiction. I was going to repeat my apologies yet again but the noble Earl has disarmed me by the extent of the amendments which he has caused to be inserted and which we passed at the outset of our proceedings today.

Perhaps I may read straight away the relevant part of the clauses before developing my amendments. Clause 1(2) reads as follows: Subject to subsection (3) below"— with which we need not worry at this stage— the court shall not pass a custodial sentence on the offender unless it is of the opinion— (a) that the offence, or the combination of the offence"— and I now stress these words— and one other offence associated with it, was so serious that only such a sentence can be justified for the offence". Clause 29, on page 20, sets out a number of definitions. Six lines from the bottom of the page we find out what an offence associated means. Subsection (2) states: For the purposes of this Part, an offence is associated with another if— (a) the offender is convicted of it in the proceedings in which he is convicted of the other offence, or (although convicted of it in earlier proceedings) is sentenced for it at the same time as he is sentenced for that offence; or". I pause there to say that a classic example would be where a person has pleaded guilty to one or more offences and has contested one or more other offences and they are then tried. Subsection (2) continues: (b) the offender admits the commission of it in the proceedings in which he is sentenced for the other offence and requests the court to take it into consideration in sentencing him for that offence". It is thus perfectly clear that the only aggregation that can be taken into account in deciding on the seriousness of an offence is one other offence other than the offence with which he stands convicted. When it comes to taking into consideration outstanding offences—the so-called TICs—only one of those—it may be one out of 50—can be taken into account when considering the seriousness of the offence.

I make these introductory observations first. I have said on more than one occasion that I am wholeheartedly in favour of as few people going to prison as one can properly so manage. I accept, as we all do, that prison is very rarely of any reformative assistance, even though 25 years ago we were told exactly the opposite by criminologists. It is counter-productive.

I entirely accept that the Government are entitled —in no way do I resist this—to impose whatever framework they consider to be appropriate for the sentencing activity. I have made those preliminary observations in the hope of perhaps escaping or toning down the usual "Lullington laments" to which I am almost invariably subjected.

In Standing Committee in another place the Minister of State, Mr. John Patten, said: The Bill is not an exercise in trying to empty our prisons. Instead, it is designed to ensure that defenders are punished correctly on conviction—those that should go to prison, go to prison; while those who should not be punished in prison, are punished outside". I accept all of that, so far as concerns the philosophy. However, I am concerned about how one applies the philosophy that a person should get the just deserts for the offences—I put it in the plural—which he has committed if one cannot deal with the multiple offender (and there are many of them about) save on the basis that you take two offences out of a possible four, 10 or 20 or, as an alternative and not in addition, you take one of the offences which he has asked to be taken into consideration. I have already accepted that Parliament must be entitled to impose a framework on sentencing. However, if it imposes a distorted framework it will receive distorted results from the judges, who will have no alternative.

Perhaps I may invite noble Lords to consider two quite simple examples. For the person who steals repetitively or who acts dishonestly in relation to the Department of Social Security, the ordinary method of prosecuting him is to take one or two specimen charges. Of course, each one may only be a matter of £5 because he does it every week, and he may have been doing so for a period of more than three years. What can one do in such a case? In considering the seriousness of the offence—in other words, in considering whether he should go to prison—one can only look at £10-worth of theft; that is, two of the specimen charges. One cannot take into account the fact that he has asked for 50 offences to be taken into consideration.

However, if one feels somewhat unsympathetic towards the DSS, one can consider the example of a case between the ordinary employer and employee. Let us imagine that a man has had the practice of stealing £100 per week from his employer. In all he has stolen £10,000. What is the judge to do now under this framework? All he is entitled to do, as the employee will be charged with one or more specimen counts, is to say, "I shall sentence you for stealing £200 from your employer and that is all I can do in regard to considering the seriousness of your offence. Of course, on that basis I shall not send you to prison. I give you a conditional discharge". If that is how the legislation is to work then, with the greatest respect to Mr. John Patten, this is an exercise in trying to empty our prisons.

Perhaps I may give your Lordships another example, always in the knowledge that if one refers to anything which has any sexual content one is immediately in the firing line. However, let us assume that a person in trust over a substantial period has been involved with an indecency of not the most serious kind—I choose my words here with care—such that a judge may think, because the defendant has not been in trouble before, that if one takes merely two of the indecent assaults one should not send him to prison. However, the evidence establishes the fact that this has been going on for three years. If one considers the offences over a period of three years, there would be total unanimity that the defendant should go to prison for a substantial period. A judge who did not send such a defendant to prison would be the subject matter of a press attack, which one can imagine, followed by demands for his resignation.

Therefore, is not this framework such that it will be productive of distortions? How are the Government contemplating that a judge, in considering the seriousness of offences for the purpose of imposing or not imposing a custodial sentence, is to deal with the multiple offender? That is the reason behind these amendments. I beg to move.

4 p.m.

Lord Mishcon

My Lords, I believe that the House will recognise the sincerity of the noble and learned Lord, Lord Ackner, in saying that he is very much in favour of keeping people out of prison and that prison is counter-productive. Therefore, any argument on the amendment will not be based upon any supposition that he feels any other way. Indeed, the same applies to anyone who may support him.

There is another side to the picture. It is one which has been considered by the Court of Appeal, as the noble and learned Lord will well realise. I refer to the injustice of putting together what may be pitiful offences involving very little money or property and adding up the total until it becomes, if committed as a single crime, a serious offence.

We had a similar experience—indeed, it is almost a complete parallel—in the way we have dealt with young offenders. I see that the noble and learned Lord wishes to intervene. I am happy for him to do so.

Lord Ackner

My Lords, I am most grateful to the noble Lord. The jurisprudence on this particular aspect of sentencing is, as I understand it, perfectly clear: a judge who adds up offence by offence and then says that the total is x months or x years, is acting quite contrary to the established principles of sentencing; he must stand back and look at the situation a in total.

Having reached the stage of "anecdotage", perhaps I may be allowed to tell noble Lords that when I first went out on Circuit I had the advantage of a WO1—that is, a Warrant Officer 1—as a clerk. On one occasion there was a punch-up between the police and some gypsies. The police put forward 15 different counts, including one concerned with using an offensive weapon; namely, a beer bottle. That was the one offence which the Welsh jury would not tolerate. However, in the end, I gave the accused person a sentence of 15 months. I gave him so much on each count, but each sentence was concurrent. When I asked my clerk whether he thought that I had given the accused too much he said, "No, I do not think so". In looking through my judge's book the next day I noticed that he had written down each of the sentences and added them up; the total was 144 months. That is precisely what one is not allowed to do, unless one wants to have the sentence immediately upset in the Court of Appeal Criminal Division.

Lord Mishcon

My Lords, the problem with allowing the noble and learned Lord to intervene, as a matter of courtesy, is that one's audience has completely forgotten what the speaker said before the intervention. I was saying, with due respect to the noble and learned Lord, that there was a similar position with regard to young offenders. The Court of Appeal has looked at the words: so serious that the non-custodial sentence for it cannot be justified". That is the wording with which the court is faced when dealing with young offenders. In several cases the Court of Appeal has held that what one has to do—I concede this at once to the noble and learned Lord—is to look at each individual case and not to tot them up. That principle has enabled the Court of Appeal to put right sentences which have been imposed by a lower court.

I shall refer your Lordships to two cases, both of which occurred in 1989. They are both reported in 11 Criminal Appeal Reports. One of them was R. v. Thompson. There the court overturned a custodial sentence on a young woman with no previous convictions who had committed a number of individual small offences with someone else's cheque book and credit card. Adding them up, the figure of £1,000 was reached. Individually they were small offences. The court said that it was wrong in those circumstances to impose a custodial sentence.

The other case is R. v. Davison. There the Court of Appeal overturned a custodial sentence which had been imposed on a teenage boy who had no previous convictions. He had carried out a number of burglaries of commercial premises and had stolen property with an aggregate value of £500. In each of those cases, if the Court of Appeal had not held that the offences should be looked at individually, it would have upheld the custodial sentences.

As I understand it, the Government were faced with the argument that to be consistent one cannot look collectively at what has happened before, or contemporaneously with, a crime that has been committed. To cover that point, as I understand it, a compromise has been reached in which it is said that one other offence—that would obviously be the most serious offence—together with the offence at the conviction of which the sentencing court is now looking, can be taken into account when deciding whether custody is to be the proper punishment.

To return to another situation such as the noble and learned Lord would like to have—namely, that all other offences can be taken into account and looked at collectively when deciding that custody should be imposed—we believe that that would be wrong. In the circumstances, we on these Benches oppose the amendment.

4.15 p.m.

Lord Campbell of Alloway

My Lords, I support the amendment. The reasons and examples given by the noble Lord, Lord Mishcon, in effect vindicate the framework of the exercise of judicial discretion as at present exercised. With the greatest respect to him, to me at all events—I am not trying to be impish about this—they appear to support the case put forward by the noble and learned Lord, Lord Ackner.

If, as the Bill as drafted proposes, we are going to change the sentencing regime so that in DSS frauds, shoplifting and other repetitive cases, or burglary cases with sometimes 12 or 15 offences taken into consideration, the judge can consider only one offence, we are moving into an unrealistic world. The public cannot see that justice is done in those circumstances. If we shackle and fetter the judges, they cannot provide justice. I do not know what might happen.

When one is asked to settle an indictment—I did it many years ago—one takes sample counts, and if one is representing the Crown one opens the case to the jury on those sample counts. If the Bill is to stand as proposed, without the amendments tabled by the noble and learned Lord, we shall have overloaded indictments containing about 10 counts, because although the other counts with which the defendant is charged can be referred to, none save one can be referred to. I am aware that all examples, in a sense, are useless and restrictive, but that is a practical situation. When I was young I drafted indictments, and I wonder how people will go about that now. Shall we have overloaded indictments so that the Crown can at least discharge its duty to the public; so that the judges can sentence on the overloaded indictment; and a form of justice can be done, according to the extant judicial traditions which are good and not open to question?

I ask my noble friend the Minister to think again, because the noble and learned Lord, Lord Ackner, had vast practical experience of these matters at the Bar on the Western Circuit and as a judge. With the greatest respect to my noble friend the Minister, departments of state have no practical experience.

Lord Havers

My Lords, one of the great difficulties in sentencing is to ensure that realism applies. The amendment asks us to apply realism. It is essential that when the judge comes to sentence he is not put into a false position of having two offences only on which to sentence when in reality there may be 20 to which the offender has pleaded guilty or has had taken into consideration. For that reason, as realism is essential in sentencing, I shall support the amendment.

Lord Roskill

My Lords, when moving the previous amendment, the noble Lord, Lord Windlesham, said that over the years Parliament and the courts had been ambivalent on the subject of courts referring to previous convictions when passing sentence. Some of us began to be involved in the sentencing process when the relevant statute was the Criminal Justice Act 1947, which Mr. Attlee's government, of which the noble Earl, Lord Longford, was a distinguished member, put upon the statute book. That Act required the courts in many cases to have regard to previous convictions, especially in cases which required sentences of what were then corrective training and preventive detention. The result was, as some of us pointed out at the time, that far longer sentences were being imposed for trivial offences, taken in the aggregate, than any court ought reasonably to have been asked to impose.

The noble Lord, Lord Mishcon, is absolutely right in what he has just said, but, as the noble and learned Lord, Lord Havers, said, the problem is pragmatic. When passing sentence one must get a result in the end which the public will see as a just result in that case. With profound respect to the philosophy which lies behind the clause as it stands, if a sentence is passed which reflects only two offences out of a multitude, I do not believe that anyone will accept that justice has been done in that case.

The noble Lord, Lord Campbell of Alloway, mentioned the practical point on indictments. In our Court of Appeal days some of us made caustic comments about overloading indictments in criminal cases and suggested that it was quite sufficient to take sample counts because the others could have been dealt with on what, to use lawyers' shorthand, were known as TICs. It seems that that will be quite impossible, unless I misread the Bill.

It is quite absurd in these cases, I venture to suggest, to tie the hands of the court in order to produce a solution which is wholly unrealistic. Nobody in their senses wishes to send somebody to prison unnecessarily. But there is another side to the problem. The courts must not be prevented from sending people to prison when looked at as a whole—to borrow the phrase of the noble Lord, Lord Mishcon—the case demands that a custodial sentence should be passed. I venture to urge the noble Earl to re-examine this to see whether he can work out a better pragmatic solution which meets the points that have been made in support of the amendment as well as preserving the principle that one does not wish to sentence somebody solely upon his record.

Lord Renton

My Lords, I too support the amendment. The only point I wish to add concerns the TICs. For the benefit of lay Members of your Lordships' House, that means offences taken into consideration. When the accused is in custody the police officer asks him about a large, or even a small, number of other offences which have come to the notice of the police and which they have reason to believe he may have committed. They say to him, "Look here, if you have committed any of these, you may ask the court to take them into consideration when you come before it on the charge with which you have been indicted". It is made clear by the court when taking those offences into consideration that the accused will not on any subsequent occasion be charged with and sentenced for any of those offences. Therefore it is to the advantage of the accused that we should not exclude consideration of the offences.

As the noble and learned Lord, Lord Roskill, pointed out, it is a matter of justice to the accused that all the circumstances relating to him should be considered once and for all in the case before the court. However, if the Bill remains as it is, it may well be that only half the matters which the accused has a right to have taken into consideration will be considered.

Lord Hutchinson of Lullington

My Lords, I sincerely hope that the House will reject the amendment. I am afraid that what I have referred to on previous occasions as "the heavy mob" have come forth. With the success on Amendment No. 1, we have had to wait only an hour or so for the backlash to start; it has begun. I do not know about the "Lullington lament"; it has been highly successful, having gone on so long, in achieving acceptance of Amendment No. 1 to the Bill. I for one prefer it to what I may call the "Judicial dirge".

The noble and learned Lord wishes to return to the status quo. That is the purpose of the amendment, which is perfectly clear. All the old tricks of advocacy which one has seen so often of spending the first five minutes on praising the principle and the last three on undermining it have been displayed to the House. The whole purpose of Part I of the Bill—as I see it, the underlying message of the Bill—is that at long last courts when sentencing people should focus on the seriousness of the charge before them. That is the purpose of the Bill to begin with: to focus on the offence or offences which are before the court in accordance with the principle which we already know so well. Courts should cease to sentence offenders on their record, and cease to justify longer and longer sentences for offences which are taken into consideration or on subjective judgments about what the person may do in the future.

There seems to me to be a confusion between the two clauses. I thought that we were dealing with Clause 1 on the question of what justifies the court in passing a custodial sentence. That is the question. Later in Clause 2 we come to the length of the sentence, which is another matter. Clause 2(2) (a) states that once a court has decided that it is justified: A custodial sentence … shall be … for such term … as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and other offences associated with it". The court takes all those matters into account in deciding the seriousness of the offence and therefore the length of sentence.

All we are discussing here is the preliminary decision on whether a custodial sentence is justified. The answer to the noble and learned Lord's amendment and his examples of the social services and so on is for the charge to be properly laid. That is the point. The answer is for the indictment to contain the proper charges before the court. When it comes to sentencing, those charges or counts on the indictment can be dealt with.

Lord Campbell of Alloway

My Lords, I am grateful to the noble Lord for giving way. I know he has practical experience of this also on the Western Circuit. Is he really advocating a return to the overloaded indictments which were discouraged about 15 years ago by the Court of Criminal Appeal? Does he advocate that?

Lord Hutchinson of Lullington

Not at all, my Lords. If only the prosecuting authorities could use a little common sense, there is no requirement to overload the indictment. All that is necessary is to put the proper charges in the proper counts in the indictment which will enable the court to deal with the charges before it. There should not be a whole mass of stuff brought in as offences to be taken into consideration.

Lord Ackner

My Lords, will the noble Lord allow me to intervene? I think quite uncharacteristically he overlooks Clause 29(2), which states that an offence which is associated includes the case where, the offender is convicted of it in the proceedings in which he is convicted of the other offence". Thus under Clause 29, as I understand it—and I should be grateful for the noble Lord's views—if the indictment contains six offences, in order to decide whether to send the person to prison, one can choose one offence and one extra charge, and that is all—two out of the six.

4.30 p.m.

Lord Hutchinson of Lullington

My Lords, I do not find any difficulty in this. One can go on discussing and arguing, I suppose, until doomsday. If the noble and learned Lord cannot understand the principle upon which this Bill is based, one cannot go on and on explaining it. I fully appreciate that the judiciary will find the greatest difficulty in understanding the limitations this Bill puts upon their sentencing powers. So far as I am concerned—and I take the view that a great many people on this side of the House would take—I believe that it is of overwhelming importance that the philosophy behind this Bill should be observed by the courts. If the courts are limited in this way, so be it. The noble and learned Lord disclosed his train of thought in using the words: in deciding the seriousness of the offence, that is, whether the person should go to prison". That is not the way from now on that the courts will look upon matters. There are serious ways of dealing with serious offences in this Bill which have nothing to do with prison. The trouble is that still the judiciary approach the seriousness of an offence on the basis of whether or not the person should go to prison. There are now other forms of sentence which are just as demanding of the accused person as the useless sentence of imprisonment. For quite serious offences there are other sentences now outside prison which are just as useful as prison and far more effective. If only the judiciary would appreciate that, as I am sure they will when they come to use their powers in accordance with this Bill, then at last we would be getting somewhere as regards reducing the number of people in prison and not sending so many people to prison for such long sentences.

Earl Ferrers

My Lords, what a cheerful experience it is to see the noble Lord, Lord Hutchinson, involved in disagreement and discourse with noble and learned Lords: that gives one great encouragement. This has been a very interesting debate, with a number of differing views being portrayed. I thought I had an ally in the noble and learned Lord, Lord Roskill, when he said that he agreed with the noble Lord, Lord Mishcon, but having gone to the left he then, as it were, turned to the right. That, as the noble Lord, Lord Hutchinson, had predicted, sometimes happens.

The noble and learned Lord, Lord Ackner, paid me a great compliment for which I am deeply appreciative, by saying that I had disarmed him. I am not aware of ever having done that to any noble and learned Lord, least of all to one of the stature of the noble and learned Lord, Lord Ackner. However, I am bound to say that momentarily my chest inflated about two inches. It soon went back to normal and even into reverse, as the noble and learned Lord, Lord Ackner, proceeded to produce his customary and highly persuasive argument.

Before I comment specifically on the amendment, perhaps I may amplify a little what we really mean by the expression "one other offence" which rather exercised the noble and learned Lord, Lord Ackner, and others so much. It is quite understandable for people to think at first sight that this restriction to "one other offence" looks somewhat arbitrary and rather odd. It raises the question of whether the Bill is really saying that if there is more than one other offence the remaining offences have to be ignored. Indeed that was the thrust of the noble and learned Lord's argument.

To understand the significance of the provision I think it is helpful to remind ourselves of its origin. It lies in Section 1 of the Criminal Justice Act 1982, as substituted by Section 123 of the Criminal Justice Act 1988. This provision prevents a court from passing a custodial sentence on a young offender unless one of three conditions is met. The third of these is that the offence of which he has been convicted is so serious that a non-custodial sentence cannot be justified for it.

The courts have, however, had difficulty in applying this provision where the offender has committed more than one offence. Its effect in this case is that each offence must be considered individually, and that a custodial sentence cannot be given if no single offence justified it.

The Bill in Clause 1 subsection (2)(a) recognises and responds to the concerns which have been expressed about the existing provision in the 1982 and 1988 Acts. But it does so—and this is where perhaps I part company with the noble and learned Lord, Lord Ackner—in a way which does not allow the courts to aggregate a whole series of very minor offences to justify a custodial sentence. Our view is that people who commit minor offences, even if committed in considerable numbers, should not necessarily be sent to prison. I believe that the noble and learned Lord, Lord Ackner, agreed with that. They should receive community sentences which are supposed to help them to tackle their offending behaviour rather than go to prison, where they can learn how to commit more serious offences in the future.

I recognise that there are bound to be borderline cases. That is what the reference to "one other offence" is meant to address. I shall give an example, although I am nervous of doing so even though the noble Lord, Lord Mishcon, on this occasion may be travelling down the same track as myself. We encounter a problem if an offender has committed two or more relatively serious offences but they may be ones which are not quite serious enough individually to justify a custodial sentence. Each of those offences would justify a very stiff community penalty: perhaps a combination order with additional requirements. But there is a limit to what practicably can be demanded of an offender serving a community sentence. You cannot simply go on piling one community sentence on top of another in an attempt to give an adequate penalty for several quite serious offences. A point is reached where a custodial sentence has to be given.

By specifying in subsection (2)(a) that a custodial sentence can be given if the offence, or one other offence which may be associated with it, is serious enough to justify it we feel we can ensure that the courts can take the existence of a second offence into consideration when passing a custodial sentence. But the two offences concerned would have to be relatively serious individually before, taken together, they would justify a custodial sentence. If both offences were very minor they could not, even when added together, justify a custodial sentence. The provision therefore allows a second offence to tip the balance between a custodial sentence and a community penalty in a borderline case, but it does not allow very minor offences to be aggregated simply in order to justify custody.

Of course the same arguments apply in respect of the noble and learned Lord's proposed amendment to Clause 5. I fear that it might lead to the inappropriate use of community sentences when really a fine would be more appropriate, if the offender was convicted of several minor offences which could perfectly well be dealt with by a fine. The noble and learned Lord, Lord Ackner, in what I thought was one of his most persuasive arguments, asked about the fellow who has been pinching £100 every single week and his total aggregate of such "pinching", if I may use the word, amounted to £10,000. He would only be able to be sentenced for £200. If the noble and learned Lord, Lord Ackner, were to look, as indeed I am sure he has done, at Clause 3(2)(a), it says that a court: (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". Those may well include the fact that the offences were planned, were persistent and were committed in breach of trust. That would cover the dishonest employee or the person who abuses trust to interfere with children in his or her care. Although I hate to suggest that the noble and learned Lord might reconsider, I believe that the case that he mentioned is already covered by the Bill.

While I understand the reasoning behind the noble and learned Lord's amendment I hope that he in turn will be able to see that in the Bill we have tried to avoid putting people in custody unnecessarily. To put them into custody as a result simply of aggregating a number of minor offences would be wrong. However, if a person commits two dreadful offences, neither of which itself is suitable for a custodial sentence but which together may be suitable for a custodial sentence, we feel that the Bill ought to allow for that.

Lord Ackner

My Lords, perhaps I may begin by dealing with one or two of the observations made by the noble Lord, Lord Hutchinson of Lullington. He referred to the amendments made at the outset today which bring in the whole field of criminal law. I did not rise to congratulate or in any way to criticise, for this one very simple reason. Until those amendments were made the situation proposed by the Government was quite unworkable. One would have had a person with one foot in one form of sentencing system which was triable either way and, yet with another offence, with his other foot in the non-statutory system. There would be two or three people who were part in and part out of the system. It was wholly unworkable. The speed with which that has at last been recognised in this House is a compliment to the House.

My next point is that I am wholly aware that I am referring to Clause 1. Clause 1 deals with the qualification for a custodial sentence. Clause 2 deals with the length of that sentence once one has qualified. Under the present situation one can envisage this bizarre situation in the Court of Appeal Criminal Division. There is an appeal against a sentence of 10 years. The Court of Appeal says that under Clause 2, having regard to all that the offender has done, 10 years is perfectly right. However, under Clause 1 only two offences should have been aggregated and it was quite wrong for the offender to go to prison at all. That is the situation that could occur in this case.

The origin of the situation is very simple. It is a form of compromise forced upon the Government by the hopeless muddle that resulted from the Criminal Justice Acts of 1982 and 1988. That was pointed out in the else of R. v. Howard, for which I have the transcript dated 24th August 1990. Under the legislation which applied to young persons one could have regard only to the seriousness of the offence. There was no question of any aggregation.

In that particular case the offence was an attempted burglary. The accused was out on bail. While out on bail he no doubt thought that he should save up for the inevitable custody. This time he did not attempt a domestic burglary— he succeeded. When he came up before the Crown Court judge he asked for that offence to be taken into consideration. The learned judge took it into consideration and sent him to prison. The case went up to the Court of Appeal. The Court of Appeal said that he could not do that; the statute does not allow it. The opening words of the judgment are these: The sentencing policies to be adopted in respect of young offenders is a matter of paramount public importance. Parliament has in recent years tried to spell out these policies in some detail. Section I of the Criminal Justice Act 1982 attempted to grapple with the problem. It is a matter of history that the proper construction of that provision caused great difficulties in practice. There were second thoughts. That was in the 1988 Act. It went on: Unfortunately, on this occasion, those second thoughts were not demonstrably better thoughts. By section 123 of the Criminal Justice Act 1982 the sentencing code in respect of persons under the age of 21 was amended in a number of respects. In March 1988 Dr. David Thomas, a distinguished commentator, warned that the new provision if enacted would give rise to a wide range of legal difficulties and that the time of the criminal courts would be consumed more with discussing the details of the statutory requirements than with the general merits of the case. See Current Legal Problems 1988 … That prediction has been fulfilled". In dealing with the court's inability to uphold a perfectly sensible sentence which took into account the offence committed while on bail the court pointed out that is could not do so. Only the one offence was the qualifying offence. The court added these comments: Inevitably this will produce results which would affront the good sense of right-thinking persons; but it is the law. It follows that it was not permissible in this case to take into account the combined effect of the attempted burglary and the completed burglary". It was in order to compromise on that situation that the Government have said that in future one can add on one offence and—as an alternative, but one cannot do both—one can add one case which the accused asks to be taken into consideration.

Lord Hutchinson of Lullington

My Lords, will the noble and learned Lord give way? I am very much obliged to him. In that case did not the court disapprove of a court seeking to take into consideration an offence which was more serious than the offence before the court and advise prosecuting authorities to put the offence properly in the indictment if they wanted it to be dealt with?

Lord Ackner

My Lords, not that I can recall. It pointed out that if the offence of this kind occurred in future it was hopeless to use it as an offence to be taken into consideration. Therefore it would have to be charged separately as an offence. However, that does not help in this case because, as I indicated, Clause 29 says that the associated offence includes the offence which is tried and convicted along with the leading offence.

As it is clear that the Government are firmly committed to their present policy and there is no prospect of any yielding on a matter which is of fundamental importance to the just administration of justice and to the philosophy of just deserts, I have no alternative but to seek to test the opinion of the House.

4.49 p.m.

On Question, Whether the said amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 29; Not-Contents, 183.

Division No. 1
Ackner, L. [Teller.] Kinloss, Ly.
Acton, L. Lawrence, L.
Allenby of Megiddo, V. Lowry, L.
Boyd-Carpenter, L. Margadale, L.
Campbell of Alloway, L. Monk Bretton, L.
Carnarvon, E. Nathan, L.
Carnock, L. Nelson, E.
Colville of Culross, V. Palmer, L.
Craigavon, V. Phillips, B.
Elliot of Harwood, B. Renton, L. [Teller.]
Faithfull, B. Roskill, L.
Fortescue, E. Shannon, E.
Halsbury, E. Swansea, L.
Havers, L. Wilberforce, L.
Hylton-Foster, B.
Addington, L. Clinton-Davis, L.
Airedale, L. Cochrane of Cults, L.
Aldington, L. Coleraine, L.
Alexander of Tunis, E. Colnbrook, L.
Ampthill, L. Colwyn, L.
Ardwick, L. Constantine of Stanmore, L.
Astor, V. [Teller.] Cudlipp, L.
Attlee, E. Cullen of Ashbourne, L.
Auckland, L. David, B.
Aylestone, L. Davidson, V. [Teller.]
Belhaven and Stenton, L. Dean of Beswick, L.
Belstead, L. Denham, L.
Bessborough, E. Donaldson of Kingsbridge, L.
Birk, B. Dormand of Easington, L.
Blackstone, B. Dundee, E.
Blake, L. Ellenborough, L.
Blatch, B. Elles, B.
Blyth, L. Elliott of Morpeth, L.
Boston of Faversham, L. Ennals, L.
Brabazon of Tara, L. Fanshawe of Richmond, L.
Bridgeman, V. Ferrers, E.
Brigstocke, B. Fitt, L.
Brooks of Tremorfa, L. Flather, B.
Brougham and Vaux, L. Fraser of Carmyllie, L.
Butterworth, L. Gladwyn, L.
Caithness, E. Glenamara, L.
Callaghan of Cardiff, L. Glenarthur, L.
Campbell of Croy, L. Graham of Edmonton, L.
Carmichael of Kelvingrove, L. Grey, E.
Carnegy of Lour, B. Hampton, L.
Carter, L. Hanworth, V.
Cavendish of Furness, L. Hardinge of Penshurst, L.
Cledwyn of Penrhos, L. Harlech, L.
Harmar-Nicholls, L. Parry, L.
Harmsworth, L. Pearson of Rannoch, L.
Harvington, L. Pender, L.
Haslam, L. Peston, L.
Hatch of Lusby, L. Pitt of Hampstead, L.
Henderson of Brompton, L. Platt of Writtle, B.
Henley, L. Prys-Davies, L.
Hives, L. Pym, L.
Hollis of Heigham, B. Rankeillour, L.
Hood, V. Rea, L.
Hooper, B. Reay, L.
Howe, E. Renwick, L.
Hughes, L. Richard, L.
Hunt, L. Robson of Kiddington, B.
Hutchinson of Lullington, L. Rochester, L.
Hylton, L. Rodney, L.
Ingrow, L. Sainsbury, L.
Jeger, B. St. John of Bletso, L.
Jenkins of Putney, L. Sanderson of Bowden, L.
Johnston of Rockport, L. Savile, L.
Joseph, L. Seear, B.
Kimball, L. Sefton of Garston, L.
Kirkhill, L. Shackleton, L.
Knollys, V. Sharples, B.
Lauderdale, E. Skelmersdale, L.
Listowel, E. Soulsby of Swaffham Prior, L.
Llewelyn-Davies of Hastoe, B. Stallard, L.
Lockwood, B. Stedman, B.
Long, V. Stoddart of Swindon, L.
Longford, E. Strabolgi, L.
Lovell-Davis, L. Strange, B.
Lucas of Chilworth, L. Strathcarron, L.
Lyell, L. Strathclyde, L.
Mackay of Clashfern, L. Strathmore and Kinghorne, E.
Mackie of Benshie, L. Sudeley, L.
McNair, L. Suffield, L.
Mancroft, L. Taylor of Blackburn, L.
Mar, C. Taylor of Gryfe, L.
Marsh, L. Teviot, L.
Melville, V. Thomas of Gwydir, L.
Merrivale, L. Thomas of Swynnerton, L.
Mersey, V. Thomson of Monifieth, L.
Middleton, L. Tordoff, L.
Milner of Leeds, L. Trefgarne, L.
Mishcon, L. Trumpington, B.
Montgomery of Alamein, V. Turner of Camden, B.
Morris, L. Vaux of Harrowden, L.
Morris of Castle Morris, L. Vinson, L.
Mottistone, L. Waddington, L.
Mountevans, L. Wade of Chorlton, L.
Mowbray and Stourton, L. Wallace of Coslany, L.
Mulley, L. Whaddon, L.
Munster, E. Whitelaw, V.
Murray of Epping Forest, L. Williams of Elvel, L.
Nicol, B. Wilson of Langside, L.
Norfolk, D. Windlesham, L.
Orkney, E. Winstanley, L.
Orr-Ewing, L. Young, B.
Park of Monmouth, B.

Resolved in the negative, and amendment disagreed to accordingly.

4.57 p.m.

Earl Ferrers moved Amendment No. 6: Page 2, line 15, leave out subsection (6).

The noble Earl said: My Lords, this amendment has been spoken to with Amendment No. 1. I beg to move.

On Question, amendment agreed to.

Clause 2 [Length of custodial sentences]:

Earl Ferrers moved Amendment No. 7: Page 2, line 25, leave out from beginning to ("shall") in line 27 and insert: ("(1) This section applies where a court passes a custodial sentence other than one fixed by law. (2) The custodial sentence").

The noble Earl said: My Lords, this amendment was spoken to with Amendment No.1. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, Amendments Nos. 8 and 9 have been pre-empted.

[Amendments Nos. 8 and 9 not moved.]

The Earl of Longford moved Amendment No. 10: Page 2, line 27, at end insert ("suitable for the offender and shall be—").

The noble Earl said: My Lords, I should say at once that I attach great importance to this amendment. I know that the House is in a state of rush and bustle, but I hope that noble Lords will calm themselves for a moment to consider the amendment.

The amendment seeks to ensure that, when a custodial sentence is passed, it should be "suitable for the offender". Those words themselves sound suitable and innocuous. They come from Clause 5(2). There it is laid down that: where a court passes a community sentence … [it] shall be such as in the opinion of the court is … the most suitable for the offender Those are the best words that I can offer. It does not mean that no better words could possibly be provided perhaps at the next stage.

The main purpose of my amendment, if not quite the only purpose, is to make sure that the principle of rehabilitation of offenders—people do not like that word, so I shall say the principle of reformation of prisoners—is included in the Bill and shall govern our sentencing for years to come.

In a book published last year the former Archbishop of Canterbury, the noble Lord, Lord Runcie, referred to his sorrow over what he called the current rejection of the rehabilitative ideal. I think we should pause for a moment and ask ourselves why someone like the noble Lord, Lord Runcie, is able to say that now the idea of rehabilitation is apparently rejected. There is no doubt that the rehabilitative idea—the idea of reforming prisoners as part of the punishment—has been battered about. It has had a good deal of knocking about from various quarters in recent years—some of them quite enlightened quarters, some not. There is much wider scepticism than when some of the older Members of this House first became involved in penal matters about the possibilities of using prison as a reformative agency. Very few people—one has said it many times over the years—if they wanted someone of whom they were fond to be reformed, would start by sending him to prison. So there is certainly a difficulty about reforming people in prison. Nevertheless, in my opinion, having lost sight of the idea of trying to reform people in prison, we are on a very bad and slippery slope.

In recently preparing a book (about which I shall not say any more now) I interviewed a number of experts. I shall quote three of them for the purpose of supporting my amendment. Peter Timms, now the Reverend Peter Timms, a former governor of Maidstone Prison, and David Evans, General Secretary of the Prison Officers' Association told me emphatically that the reformation of prisoners has not failed because it has never been tried. Judge Tumim, the much admired Chief Inspector of Prisons, argued to me, as he has argued so many times elsewhere, that all punishment in prison should be a form of training. That is another way of stating the same issue.

In my eyes it would be a tragedy if this Bill became law without the ideal of reform or rehabilitation of prisoners being re-affirmed, whether or not those particular words are the best available. As we all know, the Government are concentrating their emphasis on retribution under its new name of just deserts. As I have told this House before, I advocated retribution 30 years ago in a small book that I wrote about punishment at a time when it was far less fashionable than now. But I have never suggested that retribution should be the exclusive principle. I have always argued, as I do today, that it should be an element. It certainly does not rule out the place of reformation, as seems to be the case in the present Bill unless we modify it.

I cannot refrain from quoting something that the Reverend Peter Timms, the former governor of Maidstone Prison, said to me when he gave me his views: Fort the first time, the Prison Department now displays in every prison waiting-room and meeting room, a beautiful coloured plaque which says: Her Majesty's Prison Service serves the public by keeping in custody those committed by the courts. Our duty is to look after them with humanity and now come the words that I want to stress— to help them lead law-abiding and useful lives in custody and after release"— in other words, much better lives than most of them were leading previously.

So the reformative ideal must be kept alive in the prison service. I submit that not to do so would be a betrayal of members of the prison service and all that they are trying to do among nearly 50,000 prisoners; and also a betrayal of many others working for the same ideal. There is no indication in this Bill at all of the desire of the community to reform prisoners. There is a good deal more that I could say about the principle of just deserts, which is full of ambiguities, but I hope that I have said enough. Either we treat this as a fundamental issue and make up our minds in favour of it, or we abandon for all time the idea of reforming prisoners, which has sustained the work of so many for so long. I beg to move.

Baroness Seear

My Lords, I support this amendment but perhaps for not quite the same reasons as the noble Earl put forward in moving it. I find it extremely difficult to believe that prison is a place in which anybody can be reformed in the general meaning of the word reform. If we wanted to reform ourselves or anybody else, the last place that we would choose would be a prison. However, there are some exceptions to that general statement. The first is the kind of activity which goes on in Grendon Prison, which all those who have had any contact with it will agree is most impressive. If there were more prisons like Grendon, with arrangements for women as well as for men, it would be a very realistic step in the direction in which the noble Earl wants to go.

More than that, I want once again to draw your Lordships' attention to what I understand goes on in Germany where, since the changes made in 1975, there are two primary purposes in sentencing: security; that is, the protection of the public, which must be a primary purpose of prison; and training. It does not make sense that the time people spend in prison should be totally wasted, as it is today. We must bring our minds round to finding ways of real training—not the marginal training that goes on at present which is unrelated to the prospect of employment, but proper training done by people who are properly qualified to train. It must be done in conjunction with employers who see the possibility of using the people who have had that training and so ensure that there is a real possibility of work and earnings for people leaving prison. In my view that is the nearest that we are likely to come to any effective practical reform inside prisons. Surely we should remind ourselves of that and, in putting this clause into the Bill, look again at what could be done.

Very interesting work is already starting. For instance, Pentonville has such a scheme in operation with collaboration from employers and skilled people going into prisons to do the training. Training, therefore, is not just done as an ancillary job by people when they have a little time to spare; it is a real, major objective. It seems to me that that is the kind of consideration for the prisoners and their rehabilitation which means that when they are released they can operate as citizens among other citizens.

Lord Richard

My Lords, I support the thrust of my noble friend's amendment. I am not sure that the wording of the amendment and its proposed position in the Bill are totally apt in order to achieve the purpose that he intends. The aim of the amendment is to reiterate in the Bill that part of the objectives of the criminal justice system and of imprisonment is reformation, retraining and rehabilitation. I believe that the Government may be able to accept the principle at this stage and thereafter consider the most appropriate position in the Bill for some such statement to be made. I support my noble friend's main proposition that the Bill is silent on the point and should not remain so.

Lord Hutchinson of Lullington

My Lords, one would like to support what is an interesting amendment. Does the noble Earl who moved it envisage the court deciding in each case the suitability of the disposal in relation to the person? In other words, will the court say, "This defendant should go to this prison and not to that prison. This person should go to Grendon and not elsewhere. This is a sex offender; he should not go to this prison where everyone who is a sex offender receives the most terrible treatment", and so on. Is that what is envisaged in the amendment? If so, it introduces a concept that I would support. For a long time it has seemed to me that one of the difficulties about sentencing is that the sentencer is ignorant of the different institutions and what goes on in them. He does not spend nearly enough time investigating and visiting those institutions. At present the sentencer is not able to send someone to one institution rather than another. If that were possible, it might be one of the greatest reforms in this country. I am not sure whether or not the amendment intends that.

Baroness Phillips

My Lords, it is not clear to me who will make the decision about an institution's suitability for the offender. Perhaps I may say to the noble Lord, Lord Hutchinson, that when I was a magistrate—unless the situation has changed—one visited all the prisons. It was part of one's training. I have been in a number of prisons, not, I hasten to say, as a prisoner—although no doubt, had I been, I would have had a visit from a number of noble Lords to make me feel better.

However, I envisage that the amendment could cause complications in court. I am not against the amendment, but those who support it should spell out more clearly what is intended. Who will make the decision? And how will they make it?

5.15 p.m.

Earl Ferrers

My Lords, the noble Earl, Lord Longford, thinks that there should be a further criterion for the imposition of a custodial sentence. It is that the sentence should be "suitable for the offender". The noble Earl considers that to be fundamental and argues that if we do not accept it we abandon reform of prisons for all time. That, I believe, is going slightly over the top. I cannot agree. Prison is a place to which some people have to go in order to protect the public; it is a mark of the gravity of the offence. One has to have prisons. Of course, one has to do what one can to rehabilitate and to help offenders. But to say that if we do not have this measure in the Bill, we abandon reform of prisons for all time is not right. It disregards totally the tremendous work that has been going on for the past 10 or 15 years to try to rehabilitate prisoners.

The noble Baroness says that if one wishes to reform oneself or anyone else, the last place one would go to is prison. I agree with that. I also agree that it is the last place to which one wishes to go whether or not one wants to be reformed. She referred to the fact that much rehabilitation is going on. Among other places the noble Baroness referred to Grendon. It is clear that a great deal is going on; and more has to be done. I have no doubt that more will be done.

The noble Lord, Lord Richard, said that there should be a statement in the Bill on rehabilitation. I do not believe that that is right. I do not believe that Bills are the place for statements. Rehabilitation is an important part of the treatment of prisoners. Clauses 1 and 2 of the Bill are concerned with the criteria that courts should use in determining whether custody is appropriate and how long a custodial sentence should be. We think that the fairest approach is to consider the seriousness of the offence. The Bill is about going to prison or not going to prison. How the offender is treated when he is in prison is, I think rightly, left outside the Bill. The amendment confuses the two.

In Clauses 1 to 3, we have set out a new scheme for imposing custodial sentences. Clause 1 deals with whether it should be imposed; Clause 2 deals with its length; and Clause 3 sets out certain procedural requirements. The main criterion in Clauses 1 and 2 is the seriousness of the offence. If the offence is serious enough, the offender may be given a custodial sentence. Its length will have to be commensurate with the seriousness of the offence. That principle is logical, simple and fair. A second criterion, for violent and sexual offenders, is that a custodial sentence is necessary to protect the public from serious harm from them. For reasons of public protection, the sentence in such a case may be longer than the seriousness of the offence would warrant.

I believe it is right that custodial sentencing should focus on the offence rather than the offender. A prison sentence is a punishment for a serious crime and is necessary in some cases to protect the public. We would be getting it the wrong way round if we required the courts to take suitability for the offender as a primary consideration before they impose a custodial sentence. It can at best be only a secondary consideration. There is one exception. Clause 3(3) requires the court to consider the likely effect of a custodial sentence on a mentally disordered offender. But that is a special case.

I do not see how the courts are to decide whether or not a custodial sentence is suitable for an offender. It is not clear what factors they would have to take into account before deciding whether a custodial sentence was suitable. The offender's counsel could well plead a number of factors which he thinks might persuade the court that a custodial sentence would be unsuitable for his client. For example, the offender may be very ill or may have a number of dependants who would be unable to support themselves if the offender was sent to prison and lost his job as a result.

But that amounts to no more than the plea of mitigation entered by defence counsel after conviction and before sentence. The Bill expressly provides in Clauses 3 and 26 for a court to take into account any mitigating factors before passing sentence. If the court remains of the view that a prison sentence is warranted, despite the mitigating factors, but believes that there are exceptional circumstances to justify its suspension, then it may suspend it under Clause 4. If an offender's suitability for a custodial sentence is to be considered, this seems to me the right way to deal with it. That way we can preserve the principle that the sentence should be related to the offence while still making allowance for the offender's circumstances.

The question of suitability comes to the fore when a court is considering imposing a community sentence. Clause 5 gives it a choice of six different community orders. Because there is a choice, we think that the court should have to ask itself which particular order is most suitable for the offender, as provided in Clause 5(2) (a). That is to ensure that offenders are not subjected to community penalties which are quite inappropriate for them. But a custodial sentence is a custodial sentence. The court is not required to choose between different types of prison sentence; indeed, it is not able to do so.

I suggest that in that respect the noble Earl's amendment will not improve the Bill. We have gone as far as we can in tailoring provisions according to offenders' requirements. One cannot tailor a custody sentence. But once an offender is in custody one can do all that one can to rehabilitate him.

The Earl of Longford

My Lords, the noble Earl does a great job on behalf of the Government and the House in handling this trying Bill with the utmost good humour. He cannot expect to be equally convincing in reply to every amendment. I thought that he was totally unconvincing in reply to mine but that is merely a matter of opinion.

As my noble friend Lord Richard and other noble Lords are not happy about the wording of the amendment I beg leave to withdraw it. However, I have every intention of tabling a similar, perhaps better phrased, amendment at the next stage of the Bill.

Amendment, by leave, withdrawn.

The Deputy Speaker (The Earl of Listowel)

My Lords, if Amendment No. 11 is agreed to I cannot call Amendment No. 12.

Earl Ferrers moved Amendment No. 11: Page 2, line 32, leave out ("in the case of a sentence of imprisonment for") and insert ("where the offence is").

The noble Earl said: My Lords, the amendment was spoken to with Amendment No. 1. I beg to move.

Lord Ackner

My Lords, I wish to speak to Amendment No. 12 which is pure plagiarism on my part. Thy pride of parentage goes entirely to the noble Lord, Lord Renton. I say that, not to deflect the inevitable compliments that will come from a certain source—they are always gratefully received—but in order to tell your Lordships how the amendment has come about.

When reading Hansard of 26th March I noted that Clause 2 had been heavily debated. Many observations were made about the undesirability of restricting protection of the public from serious harm merely to offences of violence or of a sexual character. As one might expect, the wise words of moderation came from the noble Lord, Lord Renton. He said: I should have thought that everybody would then be satisfied. It means that the court would have just that power, which, very naturally, my noble friend Lord Ferrers has said the courts should have, of sentencing people, where the circumstances seem to require it, for a longer period in order to protect the public from serious harm". [Official Report, 26/3/91; col. 1020.] The noble Lord was proposing exactly what I have tabled in the amendment; namely, to leave out the words, in the case of a sentence of imprisonment for a violent or sexual offence". Those suggestions fell on the receptive ears of the noble Earl, Lord Ferrers. He said: My noble friend Lord Renton made a helpful drafting suggestion. He has, as always, the advantage over me in that he takes pride in being a draftsman, in which happy position I am not. I should like therefore to be able to consider his advice. It would be wholly inappropriate for me to comment off the cuff on such a fine piece of drafting as he has suggested. I shall certainly take note of it and get in touch with him later to tell him what I think".—[Official Report, 26/3/91; col. 1020] Later in the debate, the noble Lord, Lord Windlesham, pressed his amendment. At col. 1022 the noble Earl repeated that he would like to consider the suggestion made by the noble Lord, Lord Renton. That consideration did not give rise to the amendment which was contemplated; therefore, I have tabled it. It makes good sense. If the public require protection from serious harm by an offender that is all one needs to say. To select various offences does not assist. A consistent and continuous domestic burglary is about as worrying a domestic activity as one can imagine, short of actually being injured. Serious harm may be threatened on every occasion. If the person does not lock himself or herself in the room he or she may well be badly beaten up. If the person is not present in the room, he or she may only thus escape serious harm. That is one example.

Serious harm to the public is characterised by a person who insists on drug peddling. It is difficult to imagine any worse harm. That probably accounts for the fact that the offence is dealt with so savagely in some countries. Accordingly, it occurred to me that it was desirable to leave open rather than to categorise the position. Then the courts could consider whether the case was one in which it was necessary to protect the public from serious harm by imposing a sentence longer than that commensurate with the offence. For those reasons I tabled Amendment No. 12.

Lord Renton

My Lords, it is an unfortunate and somewhat ironical situation that the necessary amendment to which the noble and learned Lord, Lord Ackner, has spoken can be accepted only if the House does not accept Amendment No. 11 standing in the name of my noble friend Lord Ferrers. Although my noble friend's amendment is desirable it does not greatly alter the effect of the Bill. Therefore we are sacrificing an important amendment in order to achieve a less important amendment.

I am grateful to the noble and learned Lord, Lord Ackner, for his plagiarism. I am thankful that he took up the cudgel where I put it down. I am also grateful for the further examples he gave of menace to the public. In effect the courts would be entitled to ignore them even if they believed that the public needed to be protected from the further commission of such offences.

The Bill does not mention, for example, aiding and abetting violent or sexual offences. That can occur even in the case of sexual offences. If someone is brought before the court for aiding and abetting an offence of rape, and if that person had previously been found guilty of rape, it is shocking that the need to protect the public from serious harm appears to be ignored. Perhaps I may risk a minor repetition and mention the case of the fraudster. I refer to the man who obtains goods or money on credit or as a result of a pretence which admits him into the homes of a series of old ladies living alone. He may pretend to be a gas inspector or a public official. I remember a case very well in which a man went round the villages calling on old people living alone and saying that he could obtain for them much better spectacles than were available at that time under the National Health Service, if they would pay him a deposit of £1. Of course, they never saw him again but eventually the law caught up with him. The sentence which the court gave was, as expressed by the learned chairman of the Quarter Sessions as it then was, one which was needed to protect the public.

Although I fully appreciate public anxiety about violent and sexual offences, to say that they are the only offences from which the public needs special protection is wrong in principle and, indeed, it seems to me, contrary to the basic objectives which the Government have set for themselves in the Bill.

I regret the position in which we find ourselves. I warmly support the stand taken by the noble and learned Lord, Lord Ackner. I hope that in view of the importance of this matter and the very strong arguments which have been used in regard to it both in Committee and today, my noble friend Lord Ferrers will think again about this matter.

There is one matter which I should disclose and confess. My noble friend Lord Ferrers was good enough to write to me. I believe that I received that letter early last week. He explained to me why he could not go along with the arguments which I had put forward. I failed to pass a copy of that letter to the noble and learned Lord, Lord Ackner, and for that I am very sorry. However, quite frankly, I do not believe that the letter from my noble friend Lord Ferrers would have convinced the noble and learned Lord any more than it convinced me.

5.30 p.m.

Lord Hutchinson of Lullington

My Lords, I hope that the Government will resist this amendment. It seems to me that we have heard some weasel words from the noble and learned Lord who proposed the amendment when he spoke of drafting amendments and not making very much difference to the Bill and so on. I may be wrong but it seems to me that this amendment suggests that the topping-up procedure should be applicable right across the board for all offences in all courts. That is what it comes to.

In my view it is an attempt to undermine the principle which is laid down in the Bill; namely, that the sentencing of people should be commensurate with the seriousness of the offence. This amendment enables all courts to sentence people in a manner which is not commensurate with the seriousness of the offence. In fact, a longer sentence than is commensurate with the seriousness of the offence will be permitted across the board whenever a court believes it necessary to protect the public from serious harm by the offender.

The noble and learned Lord gave examples. No doubt any Member of this House could give many examples of their view of offences against which the public requires protection. Again, one returns to the philosophy behind the Bill. Courts should no longer be allowed to sentence people on the subjective judgment of what offenders will do in the future. As regards sentencing, their powers should be limited to the offence before the court and its seriousness.

The noble and learned Lord quoted from our debates which took place in Committee. At that time an amendment was tabled to get rid of this subsection altogether. It seems to me to be an extremely sensible approach that the principle that the offence should always be commensurate with the seriousness of the offence should be applied, quite simply, right across the board. However, the Government have chosen quite wrongly two forms of offence which enable the principle to be breached. Of course, I should support any amendment which did away with that altogether. However, to try to extend it to all offences seems to me yet another attempt by the judiciary to undermine the philosophy of the Bill.

Lord Harris of Greenwich

My Lords, I understand the view of my noble friend Lord Hutchinson of Lullington. Like him I believe it is a great pity that we agreed to the subsection, because that is the mischief. The mischief is isolating two categories of offence—namely, sexual and violent offences—and saying that the courts should have the power to deal with people convicted of such offences in a wholly different form from that which would apply in any other type of criminal case. That is manifestly absurd.

As I indicated on the last occasion on which we debated this matter, it is the old and foolish Brittan parole policy, a policy described as flawed in principle by the committee of which the noble Lord, Lord Carlisle of Bucklow, was chairman. That is what we are now being asked to agree to in this Bill as currently drafted.

I find it impossible to understand—and on this I agree with the noble Lord, Lord Renton—why there is reference to sex and violence. They are not, in all cases, the categories of offence which disturb the public most. Having been chairman of the Parole Board, I saw many cases in categories other than sex and violence which would have caused far greater public disquiet. One example given by the noble Lord, Lord Renton, with which I agree, is systematic fraud against elderly people who basically lose all their property as a result of the behaviour of sophisticated fraudsters.

The other example is that given by the noble and learned Lord, Lord Ackner. It seems to me astonishing. The Government have applied themselves with great vigour to dealing with the problem of drug related offences. However, drug related offences are apparently in a different and more acceptable category than sexual and violent offences. That is a rather odd set of priorities for the Government. Perhaps the noble Earl will assist us on that specific point. Why did they make that decision? What are the grounds for saying that drug offences are less serious than sexual and violent offences? It seems to me that that whole approach in this part of the Bill has been ill thought out. Even at this late stage, I hope that the Government will tell us that they will look again at this matter.

Lord Mishcon

My Lords, perhaps I may be allowed to try to achieve a sense of balance in the discussion. We are not dealing with the adequacy of penalties which are contained in a criminal statute. Were we dealing with that, then I should be able to understand many of the speeches which have been made already. I should understand the arguments if we were saying in regard to drugs that the penalties imposed by statute are not commensurate with the seriousness of the offence and that we should look at the penalties in regard to that.

Here we are dealing with the making of an exception in the case of certain types of offences in order that the courts may impose, by way of a penalty, a top up on the penalty which is commensurate with the offence.

Looking at that situation, I understand the logic of saying as regards drug offences and matters of that kind—and the House is united in deploring such offences which some of us almost equate with murder —that the penalties are not sufficiently substantial and that we should allow the courts a great deal more leeway to impose heavy penalties because the penalties which exist at present are not commensurate with the offence itself.

Lord Renton

My Lords, I am grateful to the noble Lord for giving way. Does he realise that by specifying violent and sexual offences we are removing the obligation on the courts to take note, apply and aggravate the sentence in the case of other offences? Therefore, far from adding to the powers of the courts, we are taking away from them.

Lord Mishcon

My Lords, I immediately follow that point and apologise to the noble Lord if I have not made myself clear. I repeat, if Parliament is taking responsibility for the adequacy of penalties in regard to certain types of crime—be it the burglary of which the noble Lord, Lord Renton, spoke or the drug offences mentioned by the noble Lord, Lord Harris—then it is a matter for Parliament to look at the penalties imposed by the criminal statute in relation to those offences.

If the noble Lord is saying that the courts should be given an extra power beyond that of imposing a penalty commensurate with the offence, then if I may say so the noble Lord is digging a hole in the principle that the courts, with the guidance and indeed the mandate of Parliament, ought to be dealing with the offences before them. They should be looking at the penalties imposed for those offences and making the penalties commensurate with them.

As I see it there is a complete argument—as was said by the noble Lords, Lord Harris and Lord Hutchinson—for saying that this provision has no place in the Bill if one is dealing with what the courts ought to do in imposing penalties. There would be an argument—I repeat for a third time and for that reason I hope not too annoyingly—for saying that the penalties do not enable the court to impose adequate punishment for the crime before it. There is no room for an exception to that. The only logic is to ensure that the court has proper powers.

The example given by the noble Lord, Lord Renton, is interesting because it illustrates my point. The noble Lord said that we should look at the case of somebody charged and convicted with aiding and abetting a rape; and in fact the man had previously been convicted of rape. That was dealt with under Clause 1. It is one other offence that may be taken into account and that will decide whether or not he goes to prison. On the basis of the decision whether he goes to prison, the penalty will be there. In regard to rape the penalty is severe enough, as it should be.

I see no logic in including the subsection and no logic in amending it. It should not be there.

Lord Ackner

My Lords, with the leave of the House, as I cannot technically move my amendment, perhaps I may add a few remarks in reply.

Earl Ferrers

My Lords, if the noble and learned Lord intends to make his final speech perhaps he will permit me to make one or two observations on his amendment.

Lord Ackner

My Lords, I thought it was my last chance to speak.

5.45 p.m.

Earl Ferrers

My Lords, the noble and learned Lord will have the chance to make a longer speech after he hears what I intend to say.

The noble and learned Lord graciously conceded the fact that the parentage of the amendment was not his but that of my noble friend Lord Renton. That is quite right. At Committee stage I said that I would consider the point made by my noble friend. I did so and indeed wrote to him although my noble friend said that my reply did not convince him. I believe he implied that because it was so unconvincing he did not, or he forgot, to send it to the noble and learned Lord, Lord Ackner. Had the noble and learned Lord the advantage of reading the letter I wrote to my noble friend he would have been totally convinced, but my noble friend did not give him that opportunity.

The sentencing provisions in Part I of the Bill are intended to establish a clear set of guidelines for determining the right sentence in individual cases. The general rule which is reflected throughout the sentencing provisions is that the sentence which is imposed should be commensurate with the seriousness of the offence. That applies in Clauses 1 and 2 to custodial sentences, in Clauses 5 and 6 to community penalties and in Clause 16 to fines. It is a principle about which there is a great deal of agreement.

There is an exception to that general rule where an offender has been convicted of a violent or sexual offence and the court considers that there is a need to protect the public from serious harm. The amendment of the noble and learned Lord would remove from the clause the words, in the case of a sentence of imprisonment for a violent or sexual offence". That would allow the courts to impose, for any kind of offence, a custodial sentence longer than was commensurate with the seriousness of the offence.

As I said I would, I considered the matter. I did not think that the amendment was either right or necessary. The distinction made in Clauses 1 and 2 of the Bill between violent and sexual offences, on the one hand, and property offences, on the other, is important. The noble Lord, Lord Hutchinson, was right to remind us of that. I join him in reminding both the noble and learned Lord and my noble friend Lord Renton that the reasoning behind it was clearly set out in the White Paper, Crime, Justice and Protecting the Public.

The noble Lord, Lord Harris, said that the provision was ill thought out. With the greatest respect, the provision was considered very carefully. It was included in the White Paper and met with general agreement. It has been generally welcomed. Of course, it is always possible to provide examples where one might prefer to see the provisions eased in this or that specific case.

Baroness Seear

My Lords, perhaps the noble Earl will give way so that I may ask whether I heard him correctly. Did he say that the distinction is between sexual and violent offences, on the one hand, and property, on the other? If so, it is surely not only property offences but many other offences we are discussing. We are speaking of drug offences, fraud, and so on, which are much more serious than just property offences.

Lord Renton

My Lords, if my noble friend will allow me perhaps I too may ask a question. What about violence to people's feelings such as is experienced in blackmail offences?

Earl Ferrers

My Lords, that may be so. However, there are ways of dealing with those offenders. My noble friend Lord Renton referred to aiding and abetting. That is covered by the Accessories and Abettors Act 1861, which we believe will effectively apply. He referred also to the systematic fraud of old people. Fraud is a serious offence. I accept that. Courts view that kind of offence more seriously where the victim is elderly and the offence is part of a sustained pattern of criminal activity. Those would be aggravating factors and would be taken account of in the sentencing.

The noble Lord, Lord Harris of Greenwich, referred to drug offences and said that they were terrible. Of course they are. One of the reasons people object so strongly to drugs is that very often they lead to violent or sexual offences. I would not underestimate for one moment the stress that those offences cause, whether related to property, burglary or fraud. However, the harm caused by those types of offence is different to the harm caused by offences against the person. They are altogether of a different order. A small number of violent or sexual offenders become progressively more dangerous and therefore are a real risk to the public. That is the kind of offender for whom the powers have been provided in Clause 1(2) (b) and Clause 2(2) (b).

It would confuse the courts if the Bill allowed a custodial sentence to be imposed in order to protect the public under Clause 1 only if the offence was sexual or violent, while under Clause 2 a longer sentence could be imposed in order to protect the public for any kind of offence. This is a fundamental part of the Bill. The provision was considered in great detail before it was introduced into the Bill. It was included in a White Paper which was discussed in public by a great many people. On the whole it was considered that the two exceptions were fairly important. I hope that noble Lords will agree.

Lord Renton

My Lords, can my noble friend clarify the matter? Does he accept that by naming violent and sexual offences only he is not giving power to the courts, rather he is taking it away? The courts have power at present as regards all kinds of serious offence.

Earl Ferrers

My Lords, as my noble friend knows only too well, the onus of the Bill is to try to keep people out of prison for the reasons we have given. We have considered that there are certain circumstances in which that overriding power should not be changed. If my noble friend says that certain powers which the courts now have are being removed, then one is bound to do that if one changes the philosophy of sentencing.

Baroness Phillips

My Lords, in defence of the Government I must ask them why they have included these issues. I have said many times over the years that the word "petty" is now used in relation to both violent and sexual crimes. There is no such thing as a petty violent crime or a petty sex crime. I do not think there is even such an offence as a petty crime. These matters have now become so casual and easily accepted. My local paper is filled with details of the most appalling crimes, including crimes of violence against elderly people. An old man was robbed and the three attackers kicked him to death in order to steal a pound. That was a violent crime. These matters are becoming too readily accepted. We are becoming more like Chicago by the day.

Very often in your Lordships' House crimes are referred to as "petty". The Government have underlined two particular groups which no one can call petty. In my textbook sexual offences include rape—is that petty? My list also includes incest, indecent assault and indecency with children. Are these petty offences? There are also unnatural offences and indecent exposure. Are they petty offences?

Lord Harris of Greenwich

My Lords, yes. Indecent exposure is petty.

Baroness Phillips

My Lords, I have always wondered about certain of your Lordships and now I am certain.

Baroness Hollis of Heigham

My Lords, what did my noble friend wonder?

Lord Harris of Greenwich

My Lords, does the noble Baroness regard an offence of indecent exposure as being self-evidently more serious than drug trafficking?

Lord Mishcon

My Lords, it is self-evident!

Baroness Phillips

My Lords, my noble friend has taken the words from my mouth. The noble Lord knows only too well that I am talking about a minor court of law—namely, the magistrates' court, and sentencers who do not seem to know very much, according to noble Lords. According to the noble Lord, Lord Hutchinson, they have never been to a prison No one has mentioned the fact that drugs lead to offences in the violence and sex groups. That outcome is frequently found in court cases. So these two issues are not unrelated.

The way we are arguing is exactly the way in which the courts argue. People have said to me: "I knew what the offence was until I went to court, but when I had listened to counsel for an hour I did not know what the offence was". These offences are very clear. The Government are involved in a belt and braces operation.

Baroness Hollis of Heigham

My Lords, trousers as well.

Baroness Phillips

My Lords, trousers as well. These provisions should remain in the Bill. I cannot see that it will make any difference leaving them in.

Lord Mishcon

My Lords, with the leave of the House and before the noble Earl rises, perhaps I can persuade the Government that it may be a very good thing, before we reach another stage of the Bill, for them to reconsider the wisdom of this paragraph, bearing in mind that we are dealing with a situation where a custodial sentence is to be given. The clause states that as regards a custodial sentence it shall be in accordance with the seriousness of the crime. All the matters about which Members of your Lordships' House have expressed concern come within that umbrella of seriousness. Protecting the public will be in the judge's mind as he sentences having regard to the seriousness of the offence. Why do we need any exceptions to that rule? Why do we need any top-up provisions? As I said before, if we feel that our penalties are not sufficient under the statutes then let us alter them. I beg the Government to consider again the wisdom of including this paragraph in the Bill at all.

Lord Ackner

My Lords, with the leave of the House, perhaps I may reply. As regards what has been said by the noble Lord, Lord Renton, and more recently by the noble Lord, Lord Mishcon, my understanding is that the ability to impose a sentence which is not commensurate with the crime is extremely limited. As I recall the law as it stands at present, that can be done only by imposing a life sentence where the offence permits that. That indeterminate sentence can only be imposed with very limited justification; for instance, if there is a considerable danger that a person may cause death or serious injury.

I weary the House with anecdotes, but perhaps I may give an example of an offence with which I had to deal in Carmarthen. A boy aged 17 years stabbed with a penknife two young girls. The injury which he did them was pretty superficial. It was a nasty shock and one or two stitches were required, but the girls recovered. The medical report said that the boy was going through a very difficult period of puberty and as a result le was likely to be violent from time to time. The doctor could not say how long that situation would last. Therefore it was quite impossible to give a determinate sentence of imprisonment of two years or three years or whatever it might be, with the certain knowledge that by the time he was released he would be cured. The alternative was not to give him too long a term of imprisonment in order to be on the safe side with the result that he would have been cured but still inside. I imposed a life sentence. The case was taken to the Court of Appeal and the decision was upheld.

That is one of the very limited categories where one can exceed the seriousness of the offence itself. The Government's provision has not been sought by the judiciary. The Government are extending those powers but only as regards isolated categories. Therefore, I believe that the noble Lord, Lord Renton, is right and that powers of the kind which I have indicated are being removed. I have referred to violence, and that type of offence will be covered. However, other cases may not be covered.

I did not understand quite what the noble Lord, Lord Hutchinson of Lullington, meant when he talked about "weasel words". I hope that when he reads Hansard he will realise that his remark was totally unjustified. At no stage in my address to the House have I done other than make it perfectly clear that I wanted to widen this clause to include all offences which would, in the words of the clause, involve a necessary protection to the public from serious harm from the offender.

I seek to remove the words as set out in my amendment because if we are landed with this clause—the judiciary has not sought it, nor have I risen at any stage to support it—let us at least have an intelligible clause. I have already criticised the Government by saying that their major amendments, with which we dealt in the first debate today and which had been heralded so triumphantly, had stood out a mile to anyone concerned with sentencing. They were essential if sentencing was not to be in a total muddle. My intervention here on a much lesser range is to stop this sort of muddle.

The noble Lord, Lord Harris, is absolutely right. There has been an isolation of two categories of offence. I agree with the noble Lord, Lord Mishcon, to this extent. If it was said that the maximum period of imprisonment that could be imposed was inadequate, one would need exceptions. But no one has suggested that the maximum periods of imprisonment for these two isolated categories are inadequate. That has not been the basis of focusing upon them. I believe—and I suppose it is an uncharitable belief—that this provision is to some extent stimulated by the Government's reaction to the amendment which was passed in this House on abolition of the mandatory sentence of life in murder cases. I believe that this is symptomatic of the Government's near paranoiac anxiety that they will be thought of as having gone soft. Some may say that they have gone soft.

I have indicated how, in regard to the multiple offences, that criticism could be very justifiably made. This provision seeks to redress the balance by saying, "Look how tough we are. We have provided even greater protection for the public". If that is the philosophy, let the protection be consistent; let the drafting be sensible. As it stands at the moment, it does not pass those tests.

6 p.m.

Earl Ferrers

My Lords, with the leave of the House, in order that we keep ourselves relatively in order, it would be appropriate for me to make one or two remarks. I really took up my share of time by speaking earlier. Technically, the debate is on my amendment. If my amendment were to be accepted, the amendment of the noble and learned Lord, Lord Ackner, would be pre-empted. I understand the anxieties that have been expressed from various quarters of the House. After all, we are all anxious to try and protect the public as best we can.

Throughout the debate there has been the understanding that there should be these two exceptions. We have done that because we set it out in a White Paper. We set it out in the White Paper because our philosophy was that we did not want people to go to prison and get worse unless there were very remarkable reasons for it. As my right honourable friend Mr. Patten said, it is not a question of emptying the prisons; it is a question of not putting into prison those people who would be more badly affected by prison were they to be sent there. Against that we have these exceptions for violent and sexual offences.

I know that your Lordships can argue that other crimes are also awful and should also be considered. However, our proposal in the White Paper was considered throughout the whole of the criminal justice world and on the whole was found to be acceptable. We have put forward our amendments. If we were to accept the amendment of the noble and learned Lord, Lord Ackner, we would be cutting across the general philosophy of what was in the White Paper and what has on the whole been accepted. I understand that not everyone would agree with that, but the White Paper was one of the cardinal tenets upon which the Criminal Justice Bill was brought forward in the first place. I hope therefore that the House will accept my amendment rather than the amendment of the noble and learned Lord.

On Question, amendment agreed to.

[Amendments Nos. 12 and 13 not moved.]

Earl Ferrers moved Amendments Nos. 14 and 15: Page 2, line 36, leave out ("sentence of imprisonment") and insert ("custodial sentence"). Page 2, line 43, at end insert: ("(4) A custodial sentence for an indeterminate period shall be regarded for the purposes of subsections (2) and (3) above as a custodial sentence for a term longer than any actual term.").

The noble Earl said: My Lords, these amendments were spoken to with Amendment No. 1. I beg to move.

On Question, amendments agreed to.

Clause 3 [Procedural requirements for custodial sentences]:

Earl Ferrers moved Amendments Nos. 16 to 18: Page 2, line 44, at beginning insert ("Subject to subsection (1A) below"). Page 2, line 46, at end insert: ("(1A) Where the offence or any other offence associated with it is triable only on indictment, subsection (1) above does not apply if, in the circumstances of the case, the court is of the opinion that it is unnecessary to obtain a pre-sentence report."). Page 3, line 1, leave out ("that subsection") and insert ("subsection (2) of section 1 or 2 above").

The noble Earl said: My Lords, these amendments were also spoken to with Amendment No. 1. I beg to move.

On Question, amendments agreed to.

Lord Harris of Greenwich moved Amendment No. 19: Page 3, line 12, leave out from ("shall") to ("the") in line 16 and insert ("obtain and consider a medical opinion on his mental condition and consider").

The noble Lord said: My Lords, in moving this amendment I shall speak at the same time to the grouped amendments in the names of the noble Baroness, Lady Faithfull, and the noble Lord, Lord Richard. We are discussing here a matter of high importance in our criminal justice system; namely, the number of mentally ill people who are now in prison. At the time of the publication of the report by the Chief Inspector of Prisons the present Home Secretary made his position clear when he said, in a statement to accompany the chief inspector's report, that in his view mentally ill people should be not in prison but in a mental hospital. Therefore there is a common thread of agreement on this point.

What is the scale and difficulty? The only recent information we have arises from the report of Professor John Gunn of the Institute of Psychiatry who recently prepared a report for the Home Office. I find it mildly puzzling that the report has not been made available to us. Nevertheless parts of it have been leaked in the appropriate fashion, which is now the way in which public business tends to be conducted. We learn that, of this survey of 5 per cent. of the sentenced population in prison serving six months or more, one in five were found to have some degree of mental disturbance. If the figures set out in the report were carried through to the whole prison population we would be talking about somewhere in the region of 9,000 mentally disturbed people, of whom 1,300 would require treatment in hospital.

I should like to deal with some of the consequences of holding mentally ill people in prison. We have reviewed these matters, as the noble Earl, Lord Ferrers, will recall, on a number of recent occasions. There was the case of Mr. Delroy McKnight, a prisoner at Wandsworth, who killed himself by breaking glass and sawing it into his neck. He was a diagnosed schizophrenic with suicidal tendencies. An inquest found that he had died through lack of care. We then had the case of Mr. Kenneth Broadbent, a diagnosed paranoid schizophrenic with a history of suicide attempts, who hanged himself at Brixton while on remand. I should point out that his offence was failing to pay for a £10 meal.

There was also the case of Mr. David Jones. He also had a history of psychiatric illness. He was the butt of bullying by other inmates. He hanged himself at Oxford prison. Another such case was that of Mr. Germaine Alexander. He was a man with a long record of mental illness. He had an attack of hypermania, but there was no one medically qualified to treat him. He was put in a strip cell at Brixton and died during the night. There was also the case we discussed recently in Question Time of Mr. Edwin Robinson, a paranoid psychotic who hanged himself at Brixton last November.

I could continue to give the House a whole list of names of other tragic people who have died in prison in circumstances such as those I have outlined. As we all know, they occur with dreadful regularity in our prisons. However, on each occasion that the matter is raised in Parliament, Members of the Government, either in this House or in the other place, express—undoubtedly very sincerely—their deep regret. But, unhappily, as they do so, we all know perfectly well that within another few weeks we shall be reading reports of precisely the same kind of occurrence in one of our prisons.

The issue before us this evening is whether Parliament is now prepared to insist on taking action which will, for once, start dealing with this truly deplorable situation. The amendments before us range over a fairly significant area. The first would require the courts to obtain a "medical opinion" which could be oral—it need not necessarily be a written report—before sentencing a mentally disordered person to custody. The arguments for the amendment are closely linked to those for the "duty psychiatrist scheme", with which I now propose to deal.

Amendment No. 20, the most significant of this group of amendments tabled in my name, that of the noble Baroness, Lady Faithfull, and that of the noble Lord, Lard Richard, is designed to put on Ministers a duty to establish such schemes. It requires the Home Secretary to make regulations and establish duty psychiatrist schemes in magistrates' courts. The schemes would enable both accused defendants and convicted offenders to be examined by a psychiatrist on court premises.

The Government tell us that they accept the desirability of establishing duty psychiatrist schemes; indeed, they advocated the establishment of such schemes in a Home Office circular which was issued last year. However, they have resisted including in the Bill any statutory duty of the kind contained in the amendment on the grounds that it is not practical to establish such schemes everywhere at present.

The amendment is drafted in such a way as to meet that particular concern. It would allow Ministers to establish such schemes on an area-by-area basis. There are many precedents in this respect. The first and most obvious is the development of community service orders which were included in the Criminal Justice Act 1972. Initially, the then Home Secretary, Robert Carr—now the noble Lord, Lord Carr of Hadley—established six experimental areas for the purpose. Minister; then extended the scheme to the rest of the country, by order, in the following years. So far as I am aware, there were no administrative problems. I was involved in extending the scheme to the rest of the country when I was working in the Home Office. I can recall no particular difficulties. However, before extending the scheme to a particular area of the country, we had to be satisfied that there were adequate resources available. When we were so satisfied, we extended the area to be covered by the community service scheme.

Secondly, there is the question of statutory time limits on time awaiting trial introduced by the Prosecution of Offenders Act 1985. Again, those have been extended on an area-by-area basis by means of statutory instruments. Thirdly, there was the introduction in the Criminal Justice Act 1988 of the power for the courts to remand offenders for up to 28 days at a time. The legislation was framed in a way that enabled the Home Secretary to extend this approach on an area-by-area basis. Therefore, it cannot be argued that there are no precedents for that particular approach; indeed, there are already three of them.

As I have indicated, the circular which was issued last September by the Home Office commended duty psychiatrist schemes. In fact, it referred to a number of them. For example, it referred to the schemes at Bow Street, at Great Marlborough Street, at Horseferry Road and at Peterborough. It has to be said, with regret, that the Peterborough scheme has already folded. This is what the Home Office said about the schemes in the circular: These enable the courts to receive speedy medical advice and to ensure that, where appropriate, arrangements can be made quickly to admit a mentally disordered person to hospital, for example as a condition of bail or, with the agreement of the hospital managers, under Section 35 of the Mental Health Act 1983 following conviction". As I said, a number of these schemes have already been established. Moreover, research papers by the two psychiatrists at Clerkenwell, Dr. David James and Dr. Lyle Hamilton, show that that has led to increased use of the Mental Health Act when the court imposes sentence, and the rapid acceleration of the time taken to assess defendants and arrange a suitable referral to hospital if it is considered necessary. Those two doctors, whom I had the fortune to meet last week when I visited Clerkenwell, found that a sample of people remanded in custody for psychiatric assessment had to wait a mean time of 33.7 days from arrest to appearance in court for the necessary psychiatric report. The mean time from arrest to admission to hospital was 50.6 days.

Let us now contrast those figures with figures from Clerkenwell where the duty psychiatrist scheme is now in operation. The equivalent figures were 5.4 days compared with 33.7 days, and 8.7 days compared with 50.6 days. We must bear in mind where these people are being held. They are being held for such periods in a grossly overcrowded prison hospital in Brixton in conditions which were described as wholly unacceptable by the Chief Inspector of Prisons as recently as the end of last year.

In fact, there has been a dramatic improvement in this particular magistrates' court in London in terms of the disposal of such cases. The two doctors who produced papers on the matter, which I am sure are available to the Home Office, indicated that the number of hospital orders at Clerkenwell increased fourfold after the introduction of the scheme. Dr. James and Dr. Hamilton estimated that the provision of assessment facilities to the court, and the satisfactory referral of assessed defendants from court at a rate of approximately two a week, produced a potential saving to the prison department of about £200,000 a year. That applies to just one magistrates' court in London. That is the saving made as a result of not having to send people to the grossly overcrowded and unacceptable conditions that exist in Brixton and some other prisons.

As I have said, I went to Clerkenwell last week to see how the scheme was working. I was impressed. The two doctors attend every Wednesday. If a defendant has appeared in court the previous Friday, he is produced again on the Wednesday and is examined by the two doctors. The conditions in which they work are unusual. They work in the kitchen of Clerkenwell magistrates' court. The conditions are crowded and wholly unsatisfactory, but the doctors work with immense enthusiasm. They perform a major public service by diverting the people in question from the criminal justice system.

When the doctors examine a patient or a defendant—call him what we will—they have a choice. The first is whether to use Part II of the Mental Health Act to make what I would describe as a civil order. In such cases the defendant has, or is alleged to have, committed less serious offences. The doctors surprised me by telling me that in every case—so far as I recall there were no exceptions—they managed, with the agreement of the CPS, with which they have cordial relations, to get those people into mental hospitals the same day. Imagine what would happen to those people if they were returned to the prison hospital at Brixton.

Secondly, in the more serious cases, the doctors use Part III of the Act, where it is intended to send a defendant to a named hospital within 28 days. There is another amendment which is being discussed with this group of amendments, as the Minister will realise. It aims at reducing that period from 28 days to seven days. The reason for that is that the doctors told me that a difficult situation arises when the named hospital will take the defendant only on the 27th or 28th day. That is not right. One of the men whose case I mentioned killed himself in Brixton prison. If the period had been seven days rather than 28 days he might well still be alive. Nevertheless, that is one of our proposals.

We are asking that schemes of the type in operation at Clerkenwell should be extended to the country as a whole, but that is to be done only when the resources are available. We are not asking for an immediate increase in public expenditure, or anything of that kind. The schemes are remarkably cost effective. The two doctors working at Clerkenwell are being paid on the basis of being expert witnesses. The total cost of the scheme at Clerkenwell is astonishingly low. There is far more likelihood of the schemes being introduced and extended if there is a duty on Ministers to take a close and direct interest in the extension of such schemes. I beg to move.

Lord Richard

My Lords, perhaps I may follow what the noble Lord, Lord Harris, has said. I too take the view that the establishment of the duty psychiatric schemes is probably the most important part of this series of amendments. The new clause which the noble Lord proposes, which we support, would require the Home Secretary to make regulations to establish duty psychiatric schemes in magistrates' courts. The Government have accepted the desirability of such schemes. They advocated their establishment in a circular which was issued to the courts last year. I echo the words with which the noble Lord almost sat down. We do not expect this provision to be implemented immediately. We accept that there are resource problems. On the other hand, the clause has been drafted in such a way that it can be introduced area by area and over a period of time.

If the Government accept that the duty psychiatric scheme should be adopted, the area-by-area approach would meet their principal objection to a statutory provision. However, the Home Office has now produced two extra objections in discussions with the representatives of the Parliamentary All-Party Penal Affairs Group. First, it says that there are insufficient resources available at present to finance the establishment of a duty psychiatric scheme at more than a few courts; and, secondly, that there is therefore no point in establishing a statutory duty which cannot be fulfilled nationally for several years.

The answer to the first of those points—that there are insufficient resources available—is that the existence of a statutory duty should help the Home Office press the Treasury for more resources for a scheme which I believe the Home Office and everyone else agree is desirable. As for the second point, it is not at all unusual for a statutory provision to be phased in area by area over several years. The most recent example is the Prosecution of Offences Act 1985 which provided for the introduction of statutory time limits on time awaiting trial. Those limits have been introduced area by area since then, but they still do not apply to the whole country. They apply everywhere except in London and parts of the South East.

The clause is designed deliberately to enable the Government to take account of their objections by saying that they accept that they cannot establish the scheme immediately; they should not therefore try to do it immediately; they should do it over a period of time.

The Home Office says that the scheme is desirable. The House might wish to ask itself whether such schemes are necessary. The background to the new clause—the noble Lord, Lord Harris, mentioned part of this—is, and must be, the growing concern at the apparent increase in the number of mentally disturbed people within the prison population. I do not want to weary the House with too many figures, but let me just give one or two. During the year 1989–90, nearly 17,000 prisoners were referred to psychiatrists. That is 38 per cent. more than in 1987–88. That is during a period when the prison population as a whole decreased slightly. Professor Gunn of the Institute of Psychiatry recently carried out a survey for the Home Office on a 5 per cent. sample of sentenced offenders serving six months' imprisonment or more. We are still waiting to see his report, but some of it may have emerged in a paper which he gave to the Mental Health Foundation in September 1990.

The sample that Professor Gunn investigated comprised 1,365 adult males, 404 male youths and 273 females. About one-fifth of that sample was found to have some degree of mental disturbance. If that proportion is true for the whole prison population (currently about 45,000) it would mean that over 9,000 prisoners can be said to be mentally disturbed, including over 1,300 who are in need of hospital care. We must take some steps to prevent such people ending up in our prisons. Prisons are the worst possible places for people with mental disorders, even when psychiatric services are provided, and they are not all that common. The benefits are offset by the poor physical conditions and the restricted regimes.

The noble Lord, Lord Harris, referred to the schemes as they have been operating at Bow Street, Marlborough Street, Clerkenwell and Horseferry Road magistrates' courts. I do not propose to go through those points in detail again. I merely reiterate what the effect of those schemes was in relation to mentally disordered people who appeared before those courts. A sample remanded in custody for psychiatric assessment before the schemes were set up had to wait, as the noble Lord said, 33.7 days from the time they were arrested until they appeared in court with the necessary psychiatric report. That is a long time. The mean time from arrest to getting into hospital, however, was 50.6 days. That is too long. On any view of the matter, those figures are outrageous. I use the word advisedly. For those who were examined in court under the Clerkenwell scheme, the 33.7 days came down to five. The time they waited, from arrest to admission into hospital, came down to 8.7 as opposed to 50.6. The difference is extraordinary.

Faced with the evidence, I do not believe that anyone could conceivably argue that these schemes were not desirable. The background of the way in which mentally disordered people are dealt with in the criminal justice system makes them both desirable and necessary. The only difficulty that seems to be holding up the scheme is the lack of resources.

Those of us who propose the amendments are prepared to see the scheme introduced over a period of time, area by area, as resources become more available. For the life of me, however, I see no reason why the Government should not accept in the Bill an obligation and commitment to provide these services, accepting that they will be phased in over a period of time.

6.30 p.m.

Baroness Faithfull

My Lords, I support the noble Lords, Lord Harris and Lord Richard. Perhaps I may mention the duty psychiatric scheme from the point of view of a probation officer or social worker. I have been in court on a case where the judge has asked for an immediate psychiatric report. One has to ring round to try to find a psychiatrist, and this is time-consuming. If we were to have the duty psychiatric scheme, there would be on duty all the time a psychiatrist who had experience of prison and prison life and, secondly, had experience of the kind of man who comes before the courts. Therefore, I support both noble Lords in hoping that we shall have a duty psychiatric service. It would save time and money and provide better expertise.

I have great sympathy for my noble friend the Minister. The trouble is that two ministries are involved. When that happens, I will not say that nothing gets done but whatever it is gets done much more slowly. The Minister is in some difficulty because I believe that the mentally abnormal patient should be dealt with under the auspices of the health service.

I turn to the two types, the remand and the long stay cases. I shall not cover the latter because the noble Lord, Lord Harris, has already done so. On the remand cases, I have been in touch with Dr. Henrietta Bullard, a notable consultant forensic psychiatrist. She is keen that the mentally abnormal offender on remand should be seen in the hospital setting and not in the prison setting. She has tried to do this in her area, which is the Oxford region. She states: We have also been doing a survey of the mentally abnormal offender appearing before Reading Magistrates Court. Although this survey has only been operational for six weeks, 18 patients have been assessed as being mentally ill and there was a high rate of remand in custody (55 per cent.). We have also tried to analyse the reasons for the remands in custody and these are demonstrated in the examples given. We are hoping to publish our results both of our regional forensic service … I might add that we are under extreme pressure for resources and we work from a tiny Portacabin". This is very serious. I believe that wherever possible and practicable, remand cases should not be assessed in the prison setting but in the hospital setting.

There is also the problem of resources. I realise that I shall not carry all my colleagues with me here. I believe that working towards getting the service is the right attitude. Nevertheless, working towards it means working slowly, particularly where the Treasury is concerned. I have consulted psychiatrists on the matter. As the hospital service has two arms—the private sector and the public sector—I wonder whether we should consider applying to the private sector to set up units for the mentally abnormal offender both on remand and long-term.

I have been told by a forensic psychiatrist that the advantages of the private sector are that it is willing to take patients without the rigmarole we go through in the NHS. Patients mean money and professional wranglings do not seem to prevent their admission. Dr. Bullard says that there is generally a good relationship between the private sector and the referring doctor. Finally, the cost of beds in the private sector is easily established and presumably competitive. However, she says that there would have to be a quality of care and control.

My last point concerns community service upon which the noble Lord, Lord Harris, touched. Under the Mental Health Act 1983 local authorities at the moment run centres for the mentally handicapped, many of whom are mentally abnormal. They have to live in sheltered accommodation in a hostel. It is possible in the community to look after the mentally abnormal offenders by giving them work, training, support and custody. I know that a great deal of this work means co-operation with the National Health Service; nevertheless, it ought to be possible. The time has come for us to fulfil the Butler Report in which these recommendations were made in 1975.

Lord Mottistone

My Lords, I support the amendments in the names of the noble Lords, Lord Harris and Lord Richard, and my noble friend Lady Faithfull, very strongly in principle. In order not to detain your Lordships too long, I propose to speak mainly to my amendments which are grouped with the others, Amendments Nos. 21 and 22.

Together, these amendments provide a compromise attack on the problem which resulted from my Amendment No. 24 in Committee, debated with the Government's Amendment No. 17. I told my noble friend the Minister at that stage that I would endeavour to come back with an amendment. These amendments are correctly grouped because they are complementary to what your Lordships have heard.

Amendment No. 22 provides that where a court considers the offender is, or appears to be, mentally disordered, the pre-sentence report should include a report submitted by a medical practitioner approved under the Mental Health Act. In the case of someone thought to be mentally disordered, such assistance to the court, including the court's need for advice on the likely effect of a custodial sentence, might depend, as matters stand at the moment, on the opinion of a probation officer or social worker, neither of whom is qualified to express a clinical view of a person's mental condition.

Your Lordships may recall that because of widespread anxiety about the ability of social workers with basic training qualifications to cope adequately with mentally disordered people, the 1983 Mental Health Act required that approved social workers only should deal with some aspects of the Act. To be approved, they had to undertake specialised training. Although the Act has been in force for a number of years and special training has been provided, a survey published in 1990 of approved social workers produced the astonishing information that they themselves felt that the worst gap in their knowledge was of the mentally ill and of matters directly relevant to the mentally ill.

I am not aware of a similar official survey among probation officers but interviews conducted by one such officer in the Midlands in 1990 found that most of his fellow officers had no experience of working with mentally ill clients before joining the probation service. The vast majority had the basic social work qualification and estimated that on average only 5 per cent. of this was connected with mental health. There was a marked lack of further specialised training once in post. Like the approved social workers, the probation officers interviewed felt that they were lacking in knowledge about the symptoms of illnesses such as schizophrenia, manic depression and clinical depression.

Those are the officers who, if my Amendment No. 22 is not accepted, would have the responsibility of preparing pre-sentence reports on people who are, or appear to be, mentally disordered. Though they can certainly report most adequately on their social conditions, I am not confident—nor does it seem are they themselves—that they could report adequately on a person's mental condition. It might be argued that only forensic psychiatrists can do so, and that there is a shortage of such psychiatrists. I would find that a somewhat astonishing argument when thousands of reports are prepared about mentally disordered offenders each year once they are in prison, mostly by doctors who are not forensic psychiatrists. What we need is to get these reports before the courts at an earlier stage.

I have concentrated on Amendment No. 22 but, as your Lordships will see, Amendment No. 21 is complementary to it. I understand from my noble friend the Minister that he is prepared to be sympathetic towards my amendments and I am deeply grateful to him. I hope that sympathy will extend as far as possible to the amendments as they are worded now. I beg to move.

Lord Renton

My Lords, I do not dissent from what has been said in support of these amendments in so far as the amendments affect those who are mentally ill, but I must in fairness make clear that I doubt the need for what is proposed in the amendments as concerns those who are mentally handicapped. Their case, their condition, is quite different. In particular, I must make it clear that it is very rarely indeed that a mentally handicapped person is able to benefit from psychiatry. Of course, mentally handicapped people do benefit from education and training of various kinds but that is different from psychiatry. As I said at Committee stage, thanks to the procedures which have been worked out by the police and the courts, there is now much greater satisfaction than there was, prior to the Mental Health Act 1983, about the way in which mentally handicapped people are being dealt with by the police and by the courts. I feel that it is only right to make that point.

6.45 p.m.

Earl Ferrers

My Lords, we have frequently considered the question of mentally disordered offenders during our debates on this Bill and this rightly shows the anxieties that your Lordships have about the needs of these unfortunate people. Indeed, there is absolutely no party political matter at issue here. We are all seeking the right way forward.

We all agree that those offenders who ought to be receiving health or social services care should receive it in a setting other than in prison and that prison is the wrong place for them to be. However, there are problems, and I think that fact is recognised by everyone. We have all seen difficulties in individual cases. It is therefore essential that we should all work to ensure that the services which are provided for these people match their needs, that those services are provided effectively and that the legislation concerning this group of offenders is adequate.

I have said previously that we must ensure that the practical problems which we have identified—and they have been identified again this evening—are resolved. If the measures we take on that front do not keep up with the legislative changes proposed by your Lordships, we risk making matters worse rather than better.

The Government's approach is to ensure that encouragement is given to all the measures being taken at present to help to divert mentally disordered offenders from the criminal justice system. Of course, I understand the aspirations of those who would like to push things along by means of a more prescriptive legislative approach, but I believe there are dangers in that. In saying that, I do not mean to imply that the Government are not as enthusiastic as are your Lordships in getting this done, because we are; but your Lordships will recall that one of our fears is that by making it obligatory to obtain a psychiatric report before we have practical arrangements in place to provide them very quickly we will end up with more people being remanded in custody waiting for reports to be prepared. We would therefore have what we are specifically trying to avoid—that is, mentally disordered people being committed to prison.

I am afraid that Amendments Nos. 19 and 23 would have that effect, and I hope your Lordships will understand if I am not able to advise their acceptance. I believe that Amendments Nos. 21 and 22, which have been tabled and spoken to by my noble friend Lord Mottistone, provide an ingenious and helpful way forward. Under these amendments a psychiatric assessment would be provided, if needed, whenever a pre-sentence report was called for. Your Lordships may recall that the effect of the government amendments which we discussed a few moments ago is to require a pre-sentence report before an offender is sentenced to custody in every either-way or summary case and in every indictable-only case, unless the judge is of the opinion that it is unnecessary. If the offender is in any case to be remanded, either on bail or in custody, for a pre-sentence report it seems sensible for that report to include a psychiatric assessment in appropriate cases. That is what my noble friend's amendment seeks and I believe it is right to do so.

I should be happy to accept, in principle, Amendments Nos. 21 and 22, which I believe will ensure that pre-sentence reports contain as much useful information as possible on the mental condition of offenders in order to assist the courts in their deliberations. However, there are one or two matters of drafting which need to be looked at further and I should also like to consider further precisely how the medical assessment should be fitted into the pre-sentence report. If my noble friend would be kind enough to withdraw his amendments, and if it is for the convenience of your Lordships, I should be happy to accept these amendments in principle and bring forward more suitably drafted amendments at Third Reading. I hope that that assurance will also satisfy the noble Lords, Lord Harris of Greenwich and Lord Richard. I hope they will feel that this suggestion goes enough of the way to meet their anxieties.

Turning now to Amendment No. 20—

Lord Harris of Greenwich

My Lords, I assume the noble Earl was referring in his last passage to Amendment No. 25. Is that right?

Earl Ferrers

No, My Lords, I was speaking to Amendments Nos. 19 and 23.

Lord Harris of Greenwich

My Lords, I am sorry to persist, but as the noble Earl referred to an amendment in my name I assumed that he was referring to the one which is grouped with this; namely, Amendment No. 25. Am I right? I have had a letter from the noble Earl, which is the reason why I thought I should seek clarification.

Earl Ferrers

My Lords, looking at the Marshalled List, there are two amendments down in the name of the noble Lord, Lord Harris of Greenwich. One is No. 19 and the other is No. 23. However, the noble Lord is quite right. He has another amendment, Amendment No. 25, to which I was going to address myself in a moment or two.

Lord Richard

My Lords, and Amendment No. 20.

Earl Ferrers

Exactly, my Lords. I was about to start on that amendment when the noble Lord, Lord Harris, asked if I had dealt with Amendment No. 25. I do not want to detain the House any longer than I need, but I have not yet dealt with either of those two amendments. I shall now proceed, with your Lordships' permission, to do so.

Perhaps I may start with Amendment No. 20. We recognise the value of duty psychiatrist schemes which provide for courts to have a psychiatrist on call or to attend for two or three half-day sessions per week. That is why we highlighted a number of such schemes as examples of good practice in Home Office Circular 66/90, which we issued last September. It is therefore heartening to hear that so many of your Lordships favour the setting up of such schemes throughout England and Wales.

We share that view but consider that Amendment No. 20 is unnecessary to achieve that objective. The inference which might be drawn from the amendment is that those concerned with the running of magistrates' courts are thought unlikely to create duty psychiatrist schemes—even if adequate resources are available—unless the Secretary of State compels them to do so by using a statutory instrument. If that is one of the reasons behind the amendment, I think it is misguided. The Home Office has frequently received requests from the courts that more should be done to facilitate the diversion of mentally disordered offenders from prison. The duty psychiatrist scheme at Peterborough highlighted in the circular to which I referred came about as the result of an initiative by the local magistrates' court.

The noble Lord, Lord Harris of Greenwich, mentioned that the scheme had been wound up. My officials heard recently of the alleged ending of the Peterborough duty psychiatrist scheme. They wrote to the magistrates' clerk and were told that the scheme is still in operation.

Both the Peterborough and London courts, where slightly different schemes operate, are known to value them highly. They inform us of any problems caused by a temporary lack of resources. I therefore see no reason to suppose that other courts in England—and Wales—are likely to refuse to follow their example, where adequate funding and other resources are available. That being so, the amendment seems unnecessary.

There are dangers in getting locked into a single way of approaching the provision of quick psychiatric opinions as would be the case if we were to adopt the proposed amendment. As I have said, the schemes which have come into existence are largely the product of local initiative. That has the advantage that each scheme suits the local conditions. Others might find that it suited them to do things rather differently—for example, by arranging for the examination to take place off court premises rather than on them as the amendment envisages. We should like to encourage local initiatives and the sharing of best practice rather than to impose a rigid scheme which might not suit the local conditions everywhere. In those circumstances, I hope that your Lordships will accept that legislative provisions of the kind envisaged by this amendment are unnecessary.

The possible development of a comprehensive national scheme is being considered in depth by the joint Department of Health/Home Office review of health and social services provision for mentally disordered offenders.

In Amendment No. 25 the noble Lords, Lord Harris and Lord Richard, have again proposed reducing from 28 days to seven days the time within which a mentally disordered offender made subject to a hospital order must be removed from a place of safety to a named hospital. I do not think that anyone in your Lordships' House would disagree with that objective. We all wish to see the procedures for the admission of such offenders to hospital operate as quickly and smoothly as possible. However, I have some reservations about whether it is reasonable to reduce the statutory time limits by three weeks as is proposed. Serious administrative problems could result. We could also see patients having to be admitted to unsuitable facilities: for example, facilities which were perhaps not secure enough, too secure or too distant. Such a change could also result in such admissions pre-empting hospital resources at the expense of services which could and perhaps should be provided for other mentally disordered people who have not offended. We might even see doctors refuse to accept a particular patient where they knew that they could not make a bed available in the most suitable place within seven days. There would also be many practical difficulties in arranging for guardianship within such a short timescale.

As I said at an earlier stage of the Bill, it would be unwise to tinker with such a finely balanced piece of legislation as the Mental Health Act 1983, which your Lordships may recall was much debated and greatly welcomed at the time, without first testing the reaction of the professionals in the field. I therefore hope that the House will not accept the amendment while work aimed at improving the practical aspects of diversion and service provision for mentally disordered offenders is in progress. I believe that we should await the results of the inter-departmental review to find out the scale of the problem, decide how best the resources can be found to meet it and what the scale of those resources should be rather than imposing what may be an inflexible obligation which may prove impossible to operate.

I agree that we should be working to speed up the admission of mentally disordered offenders to hospital. I hope that partly as a result of the inter-departmental review, and also as a result of the observations which your Lordships have made, it will be possible to reduce the present 28-day limit in Section 37 of the Mental Health Act. I doubt whether it would be possible to reduce it immediately to seven days. It might be better to reduce it in stages, say to 21 days initially, then to 14 days and eventually to seven days.

With your Lordships' approval I should like to bring forward an amendment at Third Reading which would give the Secretary of State the power to reduce the time by statutory instrument. I hope that that will be an acceptable and suitable compromise. I believe that it goes a long way towards meeting the point made by the noble Lords, Lord Harris and Lord Richard.

Lord Mottistone

My Lords, before my noble friend sits down perhaps I may say how grateful I am for his very kind remarks about my two amendments, which I shall not move when the time comes.

Lord Renton

My Lords, before my noble friend sits down perhaps I may say that I hope that in any further changes which are made in the procedures he will save mentally handicapped people from being subjected to psychiatric examination, which will always cause them puzzlement and frequently distress.

Lord Harris of Greenwich

My Lords, perhaps I may begin by saying that I am glad that the Government are prepared to look at the 28-day rule. I welcome the fact that the noble Earl is prepared to introduce an amendment at Third Reading. That is a significant improvement. He may well be right that it would be sensible to proceed by stages. Nevertheless, I welcome the fact that he has met us more than half way.

In relation to Amendment No. 20 he has not made a serious case. He said, essentially, that the Government regard duty psychiatrist schemes as a terrifically good idea and are warmly in favour of them: However, they consider that there is no need to impose any duty on the Secretary of State to encourage the development of such schemes because it can be left to the courts rather than to government departments to do the job. That is not a satisfactory answer.

The noble Lord, Lord Richard, the noble Baroness and I have detailed schemes at Clerkenwell and elsewhere which are diverting significant numbers of people from prison to mental hospitals. As the two consultants have set out in their paper, the schemes are saving significant sums of money for the prison department of the Home Office.

It is clear that if we are to make progress in developing such schemes in the other major urban areas of this country it will require persistent pressure from Ministers. I go back to the example of community service, which I dealt with when I was in the Home Office. Community service extended throughout England and Wales with reasonable speed because there was constant ministerial pressure for it to be extended. If we had simply laid back and said, "We'll leave it to someone else to do. With a bit of luck it will extend without a great deal of encouragement from us", we should not have thousands of people being diverted from custody, as is now happening. If we are to see the development of schemes such as Clerkenwell, we must have a far more direct interest in the matter from the Home Office than would be the position if we did not have some form of statutory duty.

We have made it clear in the amendment that we should be prepared to proceed on an area-to-area basis as the resources become available. As I said, the resources required are extraordinarily modest. I reiterate that the entire scheme at Clerkenwell is based on the expert witness payments to the two psychiatrists who organise the scheme every Wednesday.

When we raise the matter of suicides in prison by mentally ill people, it is deeply disappointing to have the noble Earl tell us how sorrowful and saddened he is—I am quite sure that he is—at having to tell us how awful the conditions were when the poor men concerned killed themselves. If we do not proceed with dispatch in the creation of such schemes in our major urban areas, we can be certain that a number of young men will die. That is the real choice. The acceptance of an amendment of this kind and the extension of schemes such as Clerkenwell would enable us to get disturbed people out of the prison hospital in Brixton.

There are many dedicated doctors working in the prison medical service, just as there are many dedicated hospital officers looking after acutely ill mental patients, but hospital officers in the prison service are not state registered nurses. They are not experts. A scheme could be developed in which vulnerable people of the kind that we see at Clerkenwell and other London magistrates' courts were diverted with remarkable dispatch from those appalling conditions at Brixton into mental hospitals. I find the noble Earl's reply deeply disappointing. I shall certainly test the view of the House when we come to Amendment No. 20. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Harris of Greenwich moved Amendment No. 20: Page 3, line 17, at end insert: ("() For the purpose of facilitating the consideration of the likely effect of a custodial sentence on the mental condition of an offender who is or appears to be mentally disordered, the Secretary of State shall by regulations make provision for the establishment of duty psychiatrist schemes in courts to which this section applies. () Regulations made under this section may be made so as to apply only in specified areas. () In this Part "duty psychiatrist scheme" means a scheme which provides for the psychiatric examination on court premises of the mental condition of convicted persons by a medical practitioner approved for the purposes of section 12(2) of the Mental Health Act 1983.").

The noble Lord said: My Lords, I beg to move.

7.2 p.m.

On Question, Whether the said amendment (No. 20) shall be agreed to?

Their Lordships divided: Contents, 59; Not-Contents, 72.

Division No. 2
Ackner, L. Kinloss, Ly.
Acton, L. Kirkhill, L.
Addington, L. Longford, E.
Barnett, L. Lovell-Davis, L.
Birk, B. Mackie of Benshie, L.
Carmichael of Kelvingrove, L. Masham of Ilton, B.
Carter, L. Mishcon, L.
Cledwyn of Penrhos, L. Monson, L.
Cocks of Hartcliffe, L. Morris of Castle Morris, L.
Darcy (de Knayth), B. Mottistone, L.
Dean of Beswick, L. Mulley, L.
Dormand of Easington, L. Nathan, L.
Erroll, E. Nicol, B.
Ewart-Biggs, B. Norrie, L.
Ezra, L. Palmer, L.
Faithfull, B. Parry, L.
Falkland, V. Pitt of Hampstead, L.
Graham of Edmonton, [Teller.] Prys-Davies, L.
Rea, L.
Greenway, L. Richard, L.
Grey, E. Seear, B.
Harris of Greenwich, L. Sefton of Garston, L.
Hatch of Lusby, L. Strabolgi, L.
Henderson of Brompton, L. Taylor of Blackburn, L.
Hirshfield, L. Tordoff, [Teller.]
Hutchinson of Lullington, L. Turner of Camden, B.
Hylton-Foster, B. Williams of Elvel, L.
Jenkins of Putney, L. Winchilsea and Nottingham, E.
Kilbracken, L. Windlesham, L.
Kilmarnock, L. Winstanley, L.
Allenby of Megiddo, V. Hives, L.
Ashbourne, L. Joseph, L.
Astor, V. Kenilworth, L.
Astor of Hever, L. Kimball, L.
Belstead, L. Lane of Horsell, L.
Blake, L. Lauderdale, E.
Blatch, B. Lindsey and Abingdon, E.
Boyd-Carpenter, L. Long, V. [Teller.]
Brabazon of Tara, L. Lyell, L.
Brentford, V. Mancroft, L.
Brougham and Vaux, L. Merrivale, L.
Carnegy of Lour, B. Mersey, V.
Carnock, L. Munster, E.
Cavendish of Furness, L. Napier and Ettrick, L.
Cochrane of Cults, L. Nelson, E.
Cork and Orrery, E. Newall, L.
Craigmyle, L. Norfolk, D.
Crickhowell, L. Orkney, E.
Davidson, V. [Teller.] Pearson of Rannoch, L.
Denham, L. Pender, L.
Eccles of Moulton, B. Rankeillour, L.
Effingham, E. Rea, L.
Elles, B. Renton, L.
Ferrers, E. Rodney, L.
Fortescue, E. Saltoun of Abernethy, Ly.
Fraser of Carmyllie, L. Seccombe, B.
Glenarthur, L. Sharples, B.
Grimston of Westbury, L. Skelmersdale, L.
Harlech, L. Stanley of Alderley, L.
Harmsworth, L. Stodart of Leaston, L.
Harvington, L. Strange, B.
Haslam, L. Strathcona and Mount Royal, L.
Henley, L.
Strathmore and Kinghorne, E. Trumpington, B.
Sudeley, L. Waddington, L.
Suffield, L. Wade of Chorlton, L.
Thomas of Gwydir, L.

Resolved in the negative, and amendment disagreed to accordingly.

7.10 p.m.

[Amendments Nos. 21 to 23 not moved.]

Lord Richard moved Amendment No. 24: After Clause 3, insert the following new clause:

("Provision of information as to hospitals or potential guardians

.—For section 39(1) of the Mental Health Act 1983 (information as to hospitals) there shall be substituted the following subsection.

"(1) Where a court is minded to make an Order under sections 35, 36, 37 or 38 in respect of any person it may request—

  1. (a) the Regional Health Authority or local Social Services Authority for the region or district in which that person resides or last resided; or—
  2. (b) any other Regional Health Authority or local Social Services Authority that appears to be appropriate,
to furnish the court in such manner as may be directed by it with such information as the Authority has or can reasonably obtain with respect to —
  1. (i) the hospital or hospitals (if any) in the Authority's region or elsewhere at which arrangements could be made for the admission of that person in pursuance of the Order; or
  2. (ii) the appropriateness of the person being received into guardianship pursuant to section 37,
and that Authority shall comply with any such request.".").

The noble Lord said: My Lords, this amendment is separate from the group that we have just considered. I shall be able to move it quickly. The new clause is designed to improve the ways in which the sentencing court can obtain information about medical facilities at which a defendant can be assessed or treated and indeed the possibility of the defendant being received into guardianship.

In accordance with the Home Office circular, each regional health authority must have appointed someone to deal with requests for information on hospital facilities. In accordance with the mental health code of practice, social services authorities should have done the same in relation to requests for information concerning guardianship. The purpose of this clause is to extend the circumstances in which courts can request information, to enable courts to direct how they wish the information to be given, particularly if they require it to be given in person, and to give courts the power to seek information about guardianship.

Sections 35 and 36 of the Mental Health Act 1983 already provide powers for the court to remand a person to hospital for assessment. Accompanying Section 39 does not apply to those sections, and courts are sometimes frustrated in their use of the sections by not having a power to seek out information about facilities. The amendment will therefore extend Section 39 to the occasions when a court wants to remand to hospital for psychiatric assessment. In our view the courts should be given the power to require a representative of the relevant authorities to attend court to provide in person the information needed. The new subsection would incorporate that power for a court wishing to ensure the attendance of such a representative.

Finally, guardianship under Section 37 is rarely used, often because social services authorities are reluctant to agree to it. The inclusion of a power for a court to seek information about guardianship may, we hope, encourage its greater use as an appropriate non-custodial outcome. Both Home Office Circular 66/90 and the Mental Health Act code of practice, which is designed to improve practice in using the Mental Health Act, wish to encourage its greater use. I beg to move.

Lord Mottistone

My Lords, I should like strongly to support this amendment. We are in a situation in which the rate of reduction in mental hospital beds has accelerated and now runs at 3,000 to 4,000 a year instead of the average 2,000 to 3,000 a year which was usual up to 1935. One result is that some consultants are very selective about those whom they admit and a Minister said in this House only last month that non-offender patients should receive priority. That would not cause problems if a viable alternative existed for those who would formerly have been admitted to hospital without difficulty. The problem is that this situation continues and the number of beds is still decreasing.

As I see it, this amendment would make health authority managers answerable if they cannot arrange hospital admission. Similarly the social services authorities would have to explain why a guardianship order could not be made. Research published in 1990 established that the number of guardianship orders in force remains relatively small compared with hospital admissions. However, recent trends indicate a significant increase in its application to people with mental illness, although in 1989 the number of new cases in England involving mentally ill people and those with psychopathic disorders was only a little over 100.

If mentally ill offenders are to be cared for and supervised in the community, more use of guardianship orders may well be a way forward; hence, I much welcome the reference to it in the amendment. The amount that it is used reflects the attitudes and policies of different social services departments. The ability to summon their representatives to appear in court to explain their policies in relation to individual cases may possibly result in a modification to their current attitudes or at least force them to explain what the problems are. I strongly support this amendment.

Earl Ferrers

My Lords, I am bound to say that there is some real attraction in the proposal that has just been put forward. I have previously said that we hope that the aim of diverting mentally disordered offenders to the health and social services can be achieved by the use of practical measures instead of legislative ones. My initial reaction was that that was the course that we should aim to follow in this matter as well. I am aware, for example, that some regional health authorities are trying to develop good information systems for the courts which would negate the need for legislative change. West Midlands region, for example, has produced a very helpful booklet for the courts and at least one other region has similar work in hand. But the amendment would seem to be partially defective because the exercise of the power to remand is not strictly an "order" within the terms of the 1983 Act and does not technically result in an "admission" to hospital.

I nevertheless agree that, in principle, the proposed change could be very helpful in those cases where information of this kind is needed. This applies equally to Wales, where the supply of information to the courts is governed by Section 39(1) and (2) of the 1983 Act.

I am also attracted to the second part of the amendment under which local social services authorities would be required if necessary to advise the courts as to the appropriateness of a guardianship order. It would indeed help to concentrate minds on the availability of other possible disposals, and that would be all to the good.

If the noble Lord, Lord Richard, felt disposed to withdraw his amendment, I would give an undertaking to come forward with a suitably drafted amendment at Third Reading which would give effect to the aims of the new clause which the noble Lord has proposed.

Lord Richard

My Lords, the noble Earl is irresistible. With the leave of the House, I beg to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 25 not moved.]

Clause 4 [Suspended and extended sentences of imprisonment]:

Earl Ferrers moved Amendment No. 26: Page 3, line 33, leave out ("of the 1973 Act (suspended sentences of imprisonment)") and insert ("(suspended sentences of imprisonment) of the Powers of Criminal Courts Act 1973 ("the 1973 Act")").

The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 1. I beg to move.

On Question, amendment agreed to.

Lord Ackner moved Amendment No. 27: Page 3, line 41, leave out ("by the exceptional") and insert ("in all the").

The noble and learned Lord said: My Lords, I hope that your Lordships will find this to be an admirable preprandial amendment. I shall take it quite briefly. It arose in relation to suspended sentences on 16th April when the noble Lord, Lord Waddington, was kind enough to agree to consider whether the use of the word "exceptional"—the words of limitation to be found in the section—was appropriate in relation to the use of suspended sentences.

I am most grateful to the noble Lord the Leader of the House for kindly writing me a most helpful letter on this subject. But in the course of that letter he says: The Bill follows the existing Court of Appeal guidelines in ensuring that a suspended sentence can be given only if the test for an immediate custodial sentence is met. It does therefore I think follow that there would have to be something exceptional about the case before the sentence could properly be suspended". The American phrase "If it works, don't fix it" seems to me to be most appropriate.

If the present jurisprudence on this subject is considered adequate, to put something in a Bill which is obviously in many respects destined to make radical changes will cause problems. I referred to the jurisprudence. It is well documented in Archbold: Pleading, Evidence and Practice in Criminal Cases. At paragraph 5209 seven cases are set out as authorities for various propositions, including the proposition that the court must decide that a sentence of imprisonment is appropriate to the case without regard to the question of suspension. It goes on to explain that one must work one's way through all the other available alternatives before ultimately deciding whether it is appropriate to use a suspended sentence.

I wrote in reply to the noble Lord, Lord Waddington. I should like to quote—perhaps appropriately at dictation speed in the circumstances—a part of that letter. It states: A judge, on observing this legislative intervention, will inevitably conclude that the law has been changed, that only very rarely is he entitled to suspend a prison sentence and accordingly he will send more persons to prison, a course which we all wish to avoid". The noble Lord referred, as an example of an exceptional circumstance, to an accused person who was terminally ill. In my respectful submission that shows how narrowly "exceptional circumstances" is construed in the noble Lord's mind. It certainly would not be so construed as the law now stands. "Exceptional circumstances" takes the matter right out of the normal. There are many normal circumstances which currently, and wholly correctly, justify a suspended sentence. I cite as an example a person of first rate character who pleads guilty, who offers effective reparation and who, if sent to prison, would have his career totally ruined and whose family would be placed in immensely difficult circumstances. Alternatively, a woman with children dependent upon her care whose bad shoplifting has continued over a period is a case for which a sentence of imprisonment could be given. However, bearing in mind the effect upon the children and the quite unnecessary expenditure that it would thrust upon society, I can well understand a judge saying, "In the very special case here, I shall suspend the sentence". The example is not exceptional; it is all too often the case.

If the Government wish to make suspended sentences virtually a thing of the past, then so be it. But their philosophy, which is designed to keep as many people out of prison as properly can be kept out, will be thwarted. On the other hand, if the Government are prepared for suspended sentences to continue to be used in the very restricted situation outlined in the decided cases, then there is not the slightest point in putting in these words of exception.

I suggest words which indicate that there is no change. I would much rather that the reference was not mentioned. A judge has to ask himself many complex questions before he carries out the sentencing operation. On finding a specific reference to suspended sentences he will inevitably conclude that the law has been changed and changed in a situation which seriously restricts the exercise of the powers which hitherto he would have exercised. I beg to move.

Lord Renton

My Lords, I support the amendment. The main purpose of the Bill, as we have been told often during the proceedings, is to keep people out of prison. If we limit the award of suspended sentences by use of the word "exceptional"—and it would limit it, as the noble and learned Lord said—then we shall find that more custodial sentences have to be given. Therefore the use of the word "exceptional" is contrary to the intended purpose of the Bill. I hope that the amendment will be accepted.

Lord Richard

My Lords, I am afraid that I oppose the amendment. If one considers the structure of the Bill, the use of suspended sentences becomes less apposite and, frankly, illogical.

Clause 4 restricts the use of the suspended sentence to cases where there are exceptional circumstances. There are powerful arguments in favour of that course. The suspended sentence involves the courts in a somewhat tortuous process of logic. They have to decide that prison sentence is essential. Immediately afterwards they reach what on the face of it is a self-contradictory conclusion: that it need not be imposed. That logic is questionable and difficult enough at present. But it is even more difficult if one considers Clause 1 which states that sentences should be restricted to cases where the offence, was so serious that only such a sentence can be justified for the offence". Therefore we start with the proposition that before one passes a suspended sentence, the sentencer has to be satisfied that the offence is so serious that only a custodial sentence can be justified. He then has to say, "Despite the fact that I am satisfied of that, nevertheless I will suspend the sentence". In my submission it is impossible to imagine circumstances which were not exceptional which would lead the judge to those on the face of it—contradictory conclusions. In other words, I cannot imagine any normal circumstances in which a judge, having come to the conclusion that the offence was so serious that a custodial sentence was justified, would say, "Nevertheless, I shall suspend it". The only circumstances in which he would do that would be exceptional. It would be as well if we were to spell that out in the Bill so that sentencers can be absolutely clear about what we have in mind.

Lord Hutchinson of Lullington

My Lords, I too hope that the Government will resist the amendment. Again, the effect of the amendment of the noble and learned Lord is to retain the present position. That is its effect. Again it goes against the purpose of the Bill.

I agree entirely with the noble and learned Lord that it would be better to get rid of the whole provision. That would be by far the best solution, as the Government have done on extended sentences. The amendment goes a long way towards getting rid of suspended sentences. The only problem about the Bill as drafted is the word "exceptional". We spent much time in Committee criticising that word and pointing out that nearly all mitigation before a court emphasises the exceptional situation of that accused person. Therefore, it will lead to problems of interpretation.

The noble and learned Lord gave an example of the woman shoplifter with children and stated that that was a good reason for retaining the suspended sentence since that person would otherwise go to prison. It seems to indicate once again the inability of the judiciary to understand the new philosophy of sentencing. Surely it must be clear that the absolutely appropriate sentence for a woman shoplifter who has repeated her offence on a number of occasions is a sentence in the community. That leaves her in the family looking after the children. With the assistance of a probation officer she may understand the reasons for the shoplifting. In all the circumstances, she may be cured of her repetitive offending. I hope that the Government will resist the amendment. If the suspended sentence is to be kept, surely the Government are right in saying that it should be kept only for exceptional cases.

7.30 p.m.

Earl Ferrers

My Lords, the noble and learned Lord, Lord Ackner, hoped that his pre-prandial amendment would find a happy reception. It gave me a little indigestion which I hope will not be the case with the impending prandium. We debated the amendment at an earlier stage of the Bill. My noble friend Lord Waddington undertook to consider whether the use of the fully suspended sentence should be restricted to exceptional cases. The noble and learned Lord has exchanged letters with my noble friend the Leader of the House but clearly he remains uneasy about the issue.

The noble and learned Lord argues that the suspended sentence is in practice already used only in exceptional cases even though the current law does not spell this out. A judge will assume from the more restrictive wording in Clause 4 that the suspended sentence is to be used even more rarely than at present. As he and my noble friend Lord Renton said, more people will be sent to prison as a result.

I wonder whether the suspended sentence is being confined to exceptional circumstances at present. That may be the intention of the provision of the Powers of Criminal Courts Act 1973 and the interpretation of it by the Court of Appeal. However, nearly 30,000 suspended sentences were imposed in 1989. That adds up to an awful lot of exceptional cases. I am aware of several cases where an offender was given a suspended sentence and where the Court of Appeal substituted for it a lesser disposal such as a fine on the grounds that a custodial sentence was not justified in the first place and so should not have been suspended. Two recent examples are the cases of Regina v. Francis (1988) and Regina v. Smith (1990). In the first example the defendant was given a suspended sentence for possessing drugs because the prospect of its activation would serve as a deterrent. The Court of Appeal held that an immediate custodial sentence would not have been justified and so a suspended sentence should not have been imposed. In the second example the defendant had not previously served a term of imprisonment and the court should not have imposed a custodial sentence unless no other disposal would have been appropriate. On appeal, the suspended sentence was commuted to a fine.

The noble and learned Lord, Lord Ackner, gave the example of illness. He believed that showed we intend a narrow definition. The illness of the offender is only one example of a case in which a custodial sentence might be suspended. The family circumstances and the responsibilities which go with them might also be relevant; for example, if sending a parent to prison would leave no one to look after the children. Another example is that of someone running a small firm whose staff will be thrown out of work if he were imprisoned and the firm would therefore close down.

I do not believe that restricting the use of the suspended sentence as proposed in Clause 4 will result in more offenders being sent to prison. We should recognise the effect of the restrictions on custodial sentencing in Clause 1. They will ensure that custodial sentences are imposed only where that is the only suitable way of dealing with the offender. We are also increasing the range and effectiveness of the community penalties which the courts will have at their disposal. The effect of these changes should be that fewer offenders will be judged to require custodial sentences. As my noble friend the Leader of the House pointed out if a custodial sentence is justified even when the new restrictions apply it should be implemented unless there are good reasons for not doing so. If an offence does not justify an immediate custodial sentence the normal recourse should be to a community penalty not a suspended sentence.

All that should not be taken to mean that there is no place for the suspended sentence. It will provide a useful means of mitigating an immediate prison sentence in the right cases. The Bill ensures that a sentencer can take into account any relevant mitigating factor in deciding on the sentence. I suggest that in practice the presence of common mitigating factors such as a guilty plea or a good record will generally result in a shorter custodial sentence or a community sentence. The suspended sentence will come it to play only if the sentencer has considered all these mitigating factors and still believes that a custodial sentence is right. We can then take into account any exceptional circumstances such as the terminal illness of the offender and suspend the sentence.

For all those reasons I believe that the use of the fully suspended sentence should continue to be restricted to exceptional cases as proposed in Clause 4. I hope that in the light of this further explanation and his pre-prandial expectations the noble and learned Lord will agree.

Lord Ackner

My Lords, I owe the noble Earl an apology. I should have realised that dietetically speaking anything that is irresistible might cause indigestion. It is clear from what the Minister has said that there is an imprecision about the whole situation. On the one hand it is said that the present restrictions which are being operated by the Court of Appeal produce exceptional circumstances. On the other hand it is said that we must legislate to ensure that the number of sentences which are suspended is reduced. The example given by the noble Lord, Lord Waddington, of the terminally ill is clearly exceptional. However the noble Earl's examples are not exceptional. He spoke of the family which will be broke if one of its breadwinners goes to prison. That is a pretty usual situation.

I have done the best that I can to try to ensure that fewer people go to prison. If the Government do not like that approach, so be it. In those circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Reay

My Lords, this may be a convenient point at which to break for dinner. I beg to move that further consideration on Report be now adjourned until 8.40 p.m.

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

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