§ 3.40 p.m.
§ Baroness Blatch
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Blatch.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Lord McIntosh of Haringey moved Amendment No. 1:
Before Clause 1, insert the following new clause—
CONDITIONS RELATING TO MANDATORY AND MINIMUM CUSTODIAL SENTENCES
(".—(1) This section has effect for the purposes of setting out the basis on which the court shall carry out its sentencing functions under this Part.
(2) Under section 1 below, when determining whether it would be appropriate not to impose a life sentence the court shall have regard to the circumstances relating to either of the offences or to the offender.
(3) Under sections 2 and 3 below, when determining whether it would be appropriate not to impose a custodial sentence of at least seven years under subsection 2(2) or, as the case may be, of at least three years under subsection 3(2) the court shall have regard to the specific circumstances which—
§ The noble Lord said: In moving Amendment No. 1 I speak also to the consequential amendments, Amendments Nos. 4, 18, 20, 26 and 28. As usual, I take the first few moments to allow noble Lords to leave the Chamber in an orderly but not too slow manner.
§ As I said in the debate at Second Reading, mandatory determinate sentences are at the heart of the Bill. It is therefore essential that Members of the Committees should get this matter right as we embark on the Committee proceedings. The starting point for our consideration of the amendments must be the statement of the Home Secretary at the Conservative Party Conference in 1995. It has been referred to on a number of occasions. When announcing the plan for mandatory minimum sentences, the Home Secretary made no exceptions whatsoever. That was the pledge he gave to his party: that there would be mandatory minimum 333 sentences; and that people would be locked up on a basis to be determined by Parliament rather than by the judges without any provision for discretion.
§ Last year he produced a White Paper. That White Paper contained for the first time an exception. It said that there could be judicial discretion under genuinely exceptional circumstances. In November last, the Bill was produced. The Bill no longer refers to "genuinely exceptional circumstances", if indeed that phrase ever meant anything. It now refers to "exceptional circumstances". If anyone talks about U-turns, let us be clear that the U-turn was that committed by the Home Secretary in resiling from his pledge to the Conservative Party Conference and introducing a Bill which provided for the first time for judicial discretion.
§ When the Bill was before another place, my colleagues in the Commons, and other Members from all parts of the House, spent a great deal of time seeking to discover what "exceptional" meant. We failed even to gain examples, let alone a definition, of what it meant. The only example that I can find was given by the Home Secretary at Second Reading. He seemed to think that a police informer might be an exceptional circumstance which would deserve other than the minimum sentence. I find that curious because other suggestions have been that "exceptional" would be unforeseen circumstances; and the fact that a defendant is a police informer is not unforeseen. The Conservative chairman of the Home Affairs Select Committee in the Commons thought that this was bad law because it was unclear. It is still unclear; and it is still bad law.
§ The amendments which we have set down today follow our probing in the Commons and represent our determination to provide a workable definition of judicial discretion. Mr. Douglas Hurd in his speech, to which I have already referred at Second Reading, said that it was important to get the phrasing right. Indeed it is. It is important that we should try our very best to do that today.
The independent legal watchdog Justice—I am sorry not to see the noble Lord, Lord Alexander of Weedon, in his place today—described the effect of our amendments as being,
to ensure that judicial discretion is preserved while retaining a presumption in favour of mandatory sentences".
I accept that definition. Under that definition it cannot be said that these are wrecking amendments.
§ Why is it essential to clarify the Bill at this stage and in this way? It is essential because if judges cannot make the Bill work there are no answers to the serious questions which I and other noble Lords raised at Second Reading. If there is inadequate discretion, and if the Bill is bad because it is unclear, how can we be sure that in the appropriate circumstances the Crown Prosecution Service will prosecute? How can we be sure that juries will convict? How can we be sure that witnesses, in particular family witnesses, will give evidence? How can we be sure that there will not be an increase in not guilty cases of people who feel that they have nothing to lose by pleading not guilty because if they plead guilty there is a mandatory minimum sentence which cannot be varied in any way. There has 334 been reference in particular to the danger of not guilty pleas in rape cases where cross-examination of the victim can be such a painful process. How can we be sure that there will not be effects on the prison population—we have already referred to that issue at Question Time—and on prison conditions, rehabilitation, education and training? We have to be clear: the Bill has to be clear: and these amendments seek to make it clear.
§ The other amendments in the group are strictly consequential on the statement of principle in Amendment No. 1. Amendments to Clauses 1 to 3 allow judges to have regard to either or any of the offences and to the offender. The issue was discussed at Second Reading and it was made clear that it was necessary to have that provision to allow judges to be secure of their discretion. I believe that the phrase "acceptable" in Clause 1 is acceptable. As I said at Second Reading, in that case the judge sets the tariff and the Parole Board sets the release date. However, for those Members of the Committee who disagree with that judgment, there will be an opportunity in debate on Amendment No. 3 to discuss an alternative point of view.
In Clauses 2 and 3, where "exceptional" is particularly obscure, the word is removed and replaced by the words that the court shall have regard to the specific circumstances which,
(a) relate to any of the offences or to the offender; and
(b) would make the prescribed custodial sentence unjust in all the circumstances".
In a letter to my honourable friend Jack Straw, the Home Secretary said only yesterday,
tough and effective action to deal with serious criminals like professional burglars and drug dealers",
is necessary. We agree entirely. Judges will award much tougher sentences to professionals. For example, sentences of 12 to 20 years' imprisonment for professional Class A drug dealers are quite common now even on the first offence. But we have to accept that the kind of offences that come under the categories of burglary and Class A drug dealing are very varied. Many burglars are pathetic losers; many small drug dealers are themselves addicts who need treatment rather than lengthy prison sentences. The effect of the "three strikes and you're out" policy in California as first applied—I do not claim that that is what is provided in the Bill—is very well known. In the past month, a man convicted under that policy, given 25 years to life for stealing a slice of pizza, had his sentence reduced to two years on appeal.
§ In case there is any doubt that judges would operate these clauses fairly but firmly, which may be an argument that the Government will use, my Amendments Nos. 8, 21, 29 and 32 clarify and secure the power of the Attorney-General to appeal against leniency for any of the offences in the Bill.
§ This morning on the "Today" programme the Home Secretary said three or four times that these amendments would drive a coach and horses through the Bill. At the same time he refused to hold the kind of constructive talks requested by Jack Straw which took place to such good effect on the Police Bill.335
The Committee does not have to take my word for it that these are not wrecking amendments. The view of Justice, which I quoted, that they,
ensure that judicial discretion is preserved while retaining a presumption in favour of mandatory sentences,
is a just judgment. It proves that these are constructive and workable amendments. I beg to move.
§ Lord Carlisle of Bucklow
I rise to support these amendments to which I have put my name, and I know where the Committee resiles from my still confirmed view that I am against mandatory sentences as such. I am against them for the very good reason that I believe that the role of the legislature, the role of Parliament, is to provide the sentencing framework within which judges should pass sentence. I believe that judges should always be free to fit a particular punishment to a particular crime. May I dare to say to the Minister that I share the view of the Government expressed as recently as February 1990 that,The Courts will properly continue to have the wide discretion they need if they are to deal justly with the great variety of crimes which come before them. The Government rejects a rigid statutory framework on the lines of those introduced in the United States or a system of minimum or mandatory sentences for certain offences".That was the view of the Government as recently as 1990. I still share that view. I have heard nothing during the course of debates in this Chamber to persuade me to understand why the Government have apparently changed in the way that they have.
If we are, nevertheless, to go down the road of mandatory sentences, as appears the case, and if at the same time we are to avoid injustice in individual cases, it is essential that we have a discretion that will allow the courts to sentence other than by means of mandatory sentences when they believe, given all the circumstances of a case, that it is unjust to impose such a sentence. I cannot see how we advance the cause of justice, or confidence in justice, by requiring judges to impose sentences that they believe to be unjust. I cannot see how we advance the cause of justice by sentences that clearly are unjust, as will happen.
I agree with the remarks of the noble Lord, Lord McIntosh, in moving the amendment. I am not in any way against severe sentences. It is not a matter of being tough or not being tough on crime. It is a matter of providing sufficient discretion to allow justice to take place.
There is enormous variety in the cases that appear before the courts. I turn immediately to the provision in Clause 3 of the Bill relating to burglary. Burglars divide between, on the one hand, the professional, who perhaps breaks into a house at night and strips it of valuable property, and on whom I am sure the whole Committee would wish to see a serious penalty imposed, to, more commonly, the young, often opportunist burglar acting on impulse, often entering a house that is unoccupied. Those two ends of the spectrum cannot be dealt with by one simple system of mandatory sentencing.
As the noble Lord, Lord McIntosh, said, the Bill provides that there shall be an exception; namely, if there are "exceptional circumstances". With the greatest 336 respect, I believe that provision to be totally inadequate. As the noble and learned Lord the Lord Chief Justice has pointed out in this House and other places, the term "exceptional circumstances" has always been construed by the courts extremely narrowly. I wish to make it clear that, not only has it been construed extremely narrowly; it is clearly the intention of the Government that it shall continue to be construed extremely narrowly. In another place on 15th January Mr David Maclean, the Minister of State, said:It is the Lord Chief Justice's view, which I believe to be correct, that the term 'exceptional circumstances' will be construed very narrowly. I believe and hope that that is the correct interpretation".—[Official Report, Commons, 15/1/97; col. 395.]Later he said:It is the Government's intention that the courts should interpret 'exceptional circumstances' in exactly the same way as they have been in other legislation over the past five years".—[col. 396.]What does that mean? It means that it is accepted by the Government that the exclusion that they are attempting to put into the Bill is to be construed narrowly. As the noble Lord said in opening, the only example given in another place by any Minister was the suggestion of the Home Secretary that the provision could apply to someone who had given exceptional assistance to the police.
What we do know—and there is clear authority for this—is that exceptional circumstances do not include good character, youth, an early plea of guilty or contrition, whether taken separately or in combination. It is essential that if the Bill is not to be found in practice to cause injustice, during this Committee stage we should replace the provision of "exceptional circumstances" and, as these amendments attempt to do, introduce the idea that a court need not pass a mandatory sentence if it is satisfied that it is unjust in all the circumstances. With respect, I should have thought that that was not a difficult concept but one behind which all sides of the Committee might unite. Surely it cannot be said that Parliament wishes to see courts being required to pass sentences which they believe to be unjust.
Having read the debate that took place in this House on Second Reading, I wish to attempt to answer some of the points made. My noble friend Lady Young said that under the Bill there would be stiffer minimum sentences for persistent house burglars who had committed serious offences. She said:I find it difficult to believe that that includes stealing a milk bottle. It would make a mockery of the whole situation if that were the case".—[Official Report, 27/1/97; col. 1005.]I have to tell the House that, according to the Minister in another place, that is apparently the case. The very issue was put during the Committee stage in another place. Mr. Maclean, the Minister, said:Whether someone is charged with theft of milk bottles or with burglary is a question of fact and law. If the Crown Prosecution Service decide to charge burglary, not theft, the person is so charged. It is up to the court to determine whether the offence is burglary. I have no sympathy for a third time burglar whose excuse is. 'It wasn't a proper burglary. I only reached in the window to steal a milk bottle'. In the honourable gentleman's view, it would be more serious if the person had reached in and grabbed a purse from a woman.337I do not intend to pontificate on whether that burglary would be more or less serious. If a person is charged with a set of circumstances which, in the court's view, constitute domestic burglary, and he is found guilty, I am content for the provisions of the clause to apply to him".—[Official Report, Commons, Standing Committee A, 21/11/96; col. 146]It is clear that as the Bill stands it would cover the very case which my noble friend Lady Young said would make a mockery of the whole Bill.
I turn to another matter. Both my noble friends Lady Seccombe and Lady Anelay referred to their situation as magistrates. I wish to remind the House of what the Magistrates' Association said in its considered submission to the Home Office:The Magistrates' Association considers that domestic burglary is a singularly unsuitable offence for a mandatory sentence. While we acknowledge that burglary can be a very serious offence, e.g. night-time burglary with ransacking, soiling and damage, nevertheless the scope of the offence is so wide that the criminal justice system could he brought into disrepute if courts had to impose mandatory three year sentence for, say, the theft of a bottle of milk through an open window. Moreover, we see great problems in defining 'genuinely exceptional circumstances' at the time of the mode of trial decision, resulting in all cases being referred to the Crown Court".I believe that the Magistrates' Association was absolutely right in its view.
The point I wish to make to the House is different. I ask my noble friends who are magistrates a question. One of the principles on which the White Paper is based is the claim that on the third offence of domestic burglary half the cases are dealt with in the magistrates' court and that some 64 per cent. of those convicted are not sentenced to prison. Those who are get an average of four months. My question is this: is it really to be suggested that magistrates sitting in court are so out of touch with the community they represent that it is to be argued that all those cases which make up the 64 per cent. who, in the magistrates' view, should not go to prison at all, are instead to receive a mandatory three-year sentence? Indeed, rather more. If we take into account the effect of honesty in sentencing, it is now a sentence of four-and-a-half years. I ask magistrates to reflect: are they saying of themselves and their colleagues that they have got it so wrong that in 64 per cent. of the cases that do not go to prison at all the court should instead be required to impose a sentence of three-and-a-half to four years' imprisonment? I believe that the message to be drawn is not that the magistrates have it wrong, but that it shows the wide variety of incidents that amount to domestic burglary.
Finally, like the mover of the amendment, I was frankly amazed to hear the suggestion by the Home Secretary that the amendment would drive a coach and horses through the Bill. Is it really considered that to say that a court should not be required to pass a sentence which it believes unjust drives a coach and horses through the Bill? If it does, then all I can say is that it shows the total injustice of the Bill with which we are dealing.
It has also been suggested that if the amendment were passed it would be a wrecking amendment because it would leave the situation as the status quo. With respect, that is totally untrue. I wish to remind the House of what 338 would happen if the amendment were to pass. Instead of half the cases today being dealt with in the magistrates' court, under the terms of the Bill every third case of domestic burglary would have to go to the Crown Court. When those cases reached the Crown Court there would be a presumption that the defendant would serve the mandatory sentence of three years because the Bill says:The court shall impose [such] a sentence".The defendant would have the burden of satisfying the judge that it was unjust in the circumstances to do so. On top of that the judge then has to state in open court his reasons for coming to that conclusion.
I do not believe that sentencing should be a matter for party political debate. Judges are appointed from practising lawyers without question as to their political allegiance. Magistrates are chosen to represent the areas and communities in which they live. Surely, we should attempt to provide a system of justice and sentencing which is agreed across the political divide. I believe that I am the only person on this side of the House who at the moment sits as a recorder and tries and sentences people. I realise that my noble friend Lord Renton did so with distinction for many years. I know that, across the Chamber, the noble Lord, Lord Williams of Mostyn, is also a recorder, as is the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Mallalieu. We sit on different Benches in this House but I am sure that we will all vote the same way on this amendment. We will do so because we all believe that sentencing should not be a matter of party politics. It should be a matter of doing justice between the individual and the state.
I apologise for going on so long. Finally, I believe it is tragic that the Government appear to be in total conflict with the judiciary over the matter. I have absolutely no doubt that the overwhelming majority of those who sit in the criminal courts, whether they be High Court judges, circuit judges, recorders or assistant recorders, are totally opposed to the effect of mandatory sentences unless there is a sensible exclusion clause. I find it extraordinary that apparently the Government do not heed the advice of the Lord Chief Justice, the Master of the Rolls and the two previous Lord Chief Justices who sit in the House today. I hope desperately that we can come to an agreement to find a set of words which will allow the Bill to proceed but to proceed in a way that will do justice. If the Minister feels herself unable to accept the amendment, then all I can say is that I hope that it will be carried by the House.
§ Baroness Seccombe
Before the noble Lord sits down, perhaps I may make one comment. I admit that I am not qualified in any way. However, the guidance given to magistrates is that the magistrates' court is not the right place to hear the offence of burglary of a dwelling house because the sentence that a magistrates' court can impose is not severe enough. I am amazed to hear the figures given by the noble Lord and that so many such cases appear to be dealt with in the magistrates' courts. I understand they would not hear them.
§ Lord Carlisle of Bucklow
I took the figures from the White Paper—that was my justification. They are to 339 be found on page 52 of the White Paper. Figure 11 shows the number of convictions and average sentence lengths for burglary of a dwelling for, I believe, 1994. The table shows that 305 of them were given in the Crown Court, and 277 in the magistrates' court. Of those 277, 36 per cent. were sent to prison and the average length of sentence was four months.
My noble friend is right. Under the Bill, magistrates will no longer have the power to deal with a third offence of domestic burglary. There will rightly be a requirement to commit, because higher sentences than those should be considered. My point was that it seems an extraordinary jump from saying in those days that 64 per cent. of such offenders do not go to prison at all to saying that we should enact a Bill which requires every one of them to be sent to prison for at least three years.
Can my noble friend make it clear whether the figures given in the White Paper relate to first, second or third convictions?
§ Lord Carlisle of Bucklow
The figures I gave related to third convictions. That was my point. Figures are also given for first and second convictions. I shall not bore the Committee by reading them out but I can assure noble Lords that such is the case. I shall hand the White Paper to my noble friend.
§ 4.15 p.m.
§ Lord Thomas of Gresford
It is a privilege to follow the noble Lord, Lord Carlisle of Bucklow, who spoke so powerfully in favour of the amendments.
The Committee will know that for many years the noble Lord has been chairman of the Criminal Injuries Compensation Board. In that capacity he has been involved in the problems that affect victims. I had the privilege of serving on the Criminal Injuries Compensation Board under the chairmanship of the noble Lord and previously under Sir Michael Ogden for a period of about eight years. Every member of that board has passing before him every year something in the region of 2,000 files of victims of violent crime, and day by day and week by week the members of that board are concerned to see what happens to people who suffer from violent crime. Members are provided with medical reports. They see what follows. The overwhelming impression that one receives as a member of the Criminal Injuries Compensation Board is that victims must be protected.
So when the noble Lord, Lord Carlisle of Bucklow, and I speak, I hope that we do not speak from the point of view of recorders or part-time judges. We do not represent a trade union. We speak because we have practical experience of the effects of crime upon people. We are anxious to ensure that the limited resources available for dealing with crime in this country are spent properly in the prevention of crime and not simply in the containment of people for longer and longer periods. If those resources have to be spent upon people who are in prison, then they should be spent on rehabilitation, to enable prisoners, who are still human beings and not 340 statistics, to come out of prison and take a rightful place as fruitful and, it is to be hoped, more honest and less violent members of our society. That is the point from which we come when we address the issues that are now before the Committee.
I ask the Committee to ponder for a moment on what we are seeing; namely, a most extraordinary attack upon the judiciary. Its discretion is to be taken away and limited by statutory restraints as set out in the Bill at the very time when, as the Committee heard earlier today, the gaols are full. There are 62,000 people in prison today. The judges who are so failing in their duty to society have succeeded in filling every cell, doubling up in some cells and perhaps tripling up in others, in gaols which have been made available by the state for punishing people.
There is a paradox which I am sure the Committee must comprehend. How can the judges of this country be said to be failing in their duty and a soft touch all of a sudden, as we approach an election, and be accused of not doing their duty, when all the gaols are full? The practical experience of those who have been involved in the criminal law for a period of time is that over the past 20 or 30 years the Crown Courts, the circuit judges and High Court judges have become tougher and tougher in their response to an increasing crime wave.
I refer to an increasing crime wave because over the period that the Conservative Government have been in power, since 1979—I do not, as the noble Lord, Lord Carlisle, said, want to make a political point; it is merely a fact—crimes of violence have doubled and the judges have responded. They have increased the sentences. But it is not right to interfere in the balance between the judiciary and Parliament (the executive), by taking away from judges the discretion which for centuries they have exercised in sentencing matters.
I support the amendment, although I am not completely happy with it—our amendment will be discussed later—but as the noble Lord said, the issue in the amendment is the question of exceptional circumstances. What is an exceptional circumstance? Is it exceptional that a wife who has been battered by her husband takes a knife to him, or, in a case which I recall, that a wife should strike her husband on the head with a hammer and kill him? Is that exceptional? It is not. It happens all the time. I am afraid that it is a fact. There is nothing exceptional about circumstances of that sort which come before the courts. There is nothing exceptional about the manner in which burglaries take place: young people break into premises, steal on a whim and under the influence of alcohol or drugs. There are people who come from a rough background and who have had no chance in life. Those are everyday matters with which the courts have to deal and there is nothing exceptional about them.
A judge tries to listen to what an individual criminal has done—what his crime is—and consider its circumstances. He balances it against all the other circumstances of which he has learned throughout his career and asks how that appears in the scale. Against that he sets the mitigating circumstances relating to that particular individual in front of him. Having carried out 341 that exercise, he passes a sentence which he considers from his experience is just. Are politicians to interfere in that? Is the Home Secretary to come along and say, "Well, I know better. I am responding to a wave of feeling in the country, expressed through the tabloid press"? Or is it better that we should rely upon the instincts, the training and the just feeling of the individual judge who tries a case? I ask those noble Lords who may be thinking of voting against the amendment seriously to consider what they will be doing to the constitution of this country.
The Earl of Dudley
Before the noble Lord sits down, does he not agree that the issue before the Committee this afternoon is not whether judges are too soft, but whether the law is too soft?
§ Lord Thomas of Gresford
The law, in all the offences set out in the first clause of the Bill, permits a life sentence to be passed; therefore, it cannot be said that the law is soft. In the first clause the law allows judges to pass condign sentences, and they frequently do. I am not aware in my experience of a person who has raped for the second time not receiving life imprisonment.
§ Lord Bingham of Cornhill
I find myself in such complete agreement with the speech of the noble Lord, Lord Carlisle, that, perhaps uncharacteristically, I can be very brief. I hope I shall be forgiven for stating the obvious by reminding the Committee that for one citizen, whatever office he holds, to pass sentence on another is a solemn and serious task. However deserving of punishment a defendant may be, it is always a difficult and anxious task to measure that punishment.
Judges do their best. They weigh what they perceive to be all the relevant factors: the interests of the public; the legitimate interests of the victim; the protection of other potential victims; and the interests of the defendant himself. They are not always right. I make no claim for infallibility. Judges alone among mortals are not so gifted. If they pass sentences which are excessively severe, then a Court of Appeal exists to correct those sentences. If they pass sentences that are unduly lenient, then the Attorney General has power to refer those sentences to the court for review. Members of the Committee will not hear me resist a request for an extension of the Attorney General's power. It is a power which, since it was introduced, has been exercised—to the best of my belief—with great responsibility and discretion. I have no fears that it would be misused if extended.
No doubt our sentencing system is imperfect; any human system of the kind must necessarily be so. But I invite Members of the Committee to search the world for any system that is less imperfect. Rules of thumb do not provide an answer to these problems because the passing of a sentence is not a mechanical task. Nowhere in the world does one find evidence that logarithmic tables or mechanical rules of thumb yield better answers than the courts of this country.
I hope the Committee will not be seduced by the analogy of compulsory disqualification. To draw an analogy between the compulsory deprivation of a 342 driving licence and a period of incarceration potentially for life is to trivialise this discussion to such an extent as to defy rational argument. All that we plead for is that the courts be given the power to decline to pass sentences which are offensive to the professional and moral consciences of judges. Surely that is not asking too much.
§ Lord Burnham
I rise with a little diffidence after so many noble and learned Lords have expressed their views on this amendment and on the Bill in general. My concern is with what seems to be a major misunderstanding in relation to the purpose of this section of the Bill. I was particularly concerned that the noble and learned Lord the Lord Chief Justice should express his total support for my noble friend Lord Carlisle.
My noble friend talked of young, and implicitly innocent, burglars who might suffer as a result of the Bill. But they are young burglars with three previous convictions, after cautions, warnings and anything else that may have gone before. The noble Lord talked also of their good character. Can a man have a good character after three convictions? Surely, this is a Bill which is dealing with a confirmed and persistent criminal.
Members of the British public are the victims, and they have scarcely been mentioned in discussion on the Bill. The early parts of the Bill talk of sexual offences, drugs and burglary. If the Bill can help to reduce the incidence of those crimes, it will be worth while. The Bill emphasises the persistence of offending more than the seriousness of the offence. A later amendment seeks to take manslaughter out of the Bill. But three instances of manslaughter or grievous bodily harm must indicate that something is wrong.
It is clear that judges fail to understand the deep concern felt in this country about crimes of this sort. Even so, under the Bill judges will retain the right not to use the sentencing policy in "exceptional circumstances". The noble and learned Lord the Lord Chief Justice stated, quite correctly, that he and the Attorney General have the right to appeal if it is felt that sentencing in any specific case has gone wrong; but, after three convictions, a custodial sentence of some severity is unlikely to be wrong. It may be, in exceptional circumstances, and the Bill deals with that.
When discussing the firearms Bill, we were told that the public demanded it; and the Bill was passed this week in this Chamber. Members of the public have to face few Members of the Committee, including myself—whether or not they are noble and learned. The Bill addresses the major anxieties of those members of the public, who see these offences being committed around them all the time; they want just a little peace and quiet. G.K. Chesterton was right when he said:Smile at us, pay us, pass us; but do not quite forget.For we are the people of England, that never have spoken yet".The same poem talks about the "staggering lawyer". I find the attitude of some lawyers quite staggering!
343 The Bill goes a considerable way to achieving what those outside this Chamber want. The amendment weakens it and, with other amendments, takes us back virtually to where we are at the moment. The amendment should be opposed.
§ 4.30 p.m.
§ Lord Ackner
When I listened to the indignant observations of the Home Secretary on the radio this morning, I realised yet again that I am but a child in these political matters.
The amendment seeks to achieve merely that a judge is given a discretion to match the punishment to the crime. I shall submit that Members of the Government Benches can, with a wholly clear conscience, support it. What it seeks to achieve was sought by my noble and learned friend the Lord Chancellor. He thought he had achieved it; but in fact he failed to achieve it because of his misunderstanding of at least the English meaning in the forensic context of "exceptional circumstances". Let me make that good.
The subject matter with which we are concerned is justice: justice in the administration of the criminal law and justice in relation to the imposition of sentences of imprisonment. The Lord Chancellor, by virtue of his great office, is deeply concerned that Parliament does not legislate in such a way as to prevent a judge doing justice or, worse still, to oblige him to do an injustice. That was the concern of the Lord Chancellor, who initially baulked at this legislation.
What happened? I can tell your Lordships by reference to an interview which my noble and learned friend the Lord Chancellor gave early in November and which was the subject matter of an article in The Times on 5th November. I have given the noble Baroness, Lady Blatch, notice that I would refer to this article. I have taken the precaution of speaking to the law correspondent to ensure that what she wrote was not the subject matter of any correction. Indeed, I have learnt that the interview was recorded in the Lord Chancellor's Department and a transcript of that recording was provided very helpfully to the legal correspondent.
The article is headed:Proposals for minimum sentences 'enable judges to deal justly with particular cases—.Underneath that:Mackay has change of heart over Crime Bill".There is then a very genial picture of my noble and learned friend. Underneath that is written:He admitted he had been behind some of the wording in the Bill".The opening of the article is in these terms:Plans for tougher sentencing have won the crucial backing of the Lord Chancellor as they start their passage through Parliament. In a change of view, Lord Mackay of Clashfern says the Home Secretary's proposals on minimum sentences are now framed so as to meet the concerns of judges.Lord Mackay, who had baulked at the idea of minimum sentences, said in an interview with The Times that the Crime (Sentences) Bill would enable judges to 'deal justly with particular cases'".344 A little later on, referring to exceptional circumstances, the article states:Lord Mackay said he had ensured that this phrase was included so judges could escape what they saw as a restriction on their ability to match punishment and crime.'I expressed the view that one needed to consider that and the Home Secretary obviously did have that under consideration and this is the result of it,' he said. 'I think it enables them to deal justly with particular cases, while at the same time giving very clear warning to anyone who's contemplating a crime of this kind what the result will be, unless there are exceptional circumstances.'"It is absolutely nothing to the point—certainly nothing to the point that I seek to make—that the Lord Chancellor was in error in his construction of "exceptional circumstances". The point which I want to make, and which I submit is of vital importance to your Lordships, is that the head of the judiciary, a very senior member of the Cabinet, recognised the paramount importance of the judge having sufficient discretion to enable him to match punishment with crime, an elementary requirement of justice. He thought, sadly wrongly, that he had achieved that by persuading the Home Secretary to put in just the simple words "exceptional circumstances".
That is why I have said that Members on the Government Benches can with a clear conscience support this amendment, because clearly it seeks to achieve that which my noble and learned friend the Lord Chancellor sought to achieve; namely, a sufficient discretion in the judiciary to enable them, and I quote again the words from the article,to match punishment and crime".As it stands at the moment, they cannot do so; as it stands at the moment, there will be occasions when they are prevented from doing justice; as it stands at the moment, there will be occasions when they will be obliged to do injustice. For those reasons, I firmly support the amendment.
§ Lord Dean of Harptree
I rise as a non-lawyer and I take a somewhat different approach to these amendments from those noble Lords who have spoken in favour of them. I think it is generally agreed in the country that there is a strong feeling that the state is not doing enough to protect innocent victims from persistent and serious criminals. It is the main duty of any government to do their utmost to strengthen law and order and to ensure as far as they possibly can that citizens can go about their business without let or hindrance. In the circumstances we now face, the Government would have been failing in their duty had they not reacted to the increasingly serious situation.
It is well known that it is a cardinal principle of British justice that an accused person is innocent until he is proved guilty. We all respect that principle and expect the courts to uphold it. At the same time, in a debate of this kind it is very appropriate—indeed essential—to stress the plight of innocent victims. As your Lordships know, the amendments we are debating deal with repeat offenders who have been convicted of serious crimes which cause great injury and distress to innocent victims. I remind your Lordships that a person has to be convicted for a second time. In Clause 1 of 345 the Bill, the serious crimes which are specified are sexual crimes, attempted murder, manslaughter, rape or serious wounding. One has only to mention these very serious crimes to realise the immense damage and harm they do to innocent victims and the fear they spread throughout the community.
In the case of Clause 2, the minimum sentence laid down is again for people convicted of a second offence for trafficking in hard drugs. How many promising young lives are blighted, sometimes for life, by this evil trade? In the case of Clause 3, the minimum sentence is for people who again have been convicted a second time for domestic burglary. All your Lordships know the mess and the misery caused by burglary to innocent victims who often have little prospect of recovering treasured heirlooms. In all these cases, as has already been pointed out, there is the important saving phrase,unless … there are exceptional circumstances".Edmund Burke, in a famous speech to his constituents in Bristol many years ago, said that a Member of Parliament is not a delegate or an acoustitude for his constituents. He is a representative and owes them his judgment. That means that he must not be over-borne by public opinion. But Edmund Burke also said—and this was long before universal suffrage was introduced—that a Member of Parliament must take very careful note of public opinion. Indeed, this is an essential element in the parliamentary and democratic system upon which we pride ourselves. It is all the more important when we are dealing with intensely serious matters of this kind.
I believe that this Bill is necessary to respond to the present situation. It seems to me that the amendments would greatly weaken the essential principle of the Bill. For that reason, I shall vote against the amendments.
§ Earl Russell
I listened with great care to the noble Lords, Lord Burnham and Lord Dean of Harptree. Except for the last two sentences of the noble Lord, Lord Dean of Harptree, I do not believe that I need to join issue with anything they said. I wish to draw attention to what they did not say. I believe they have illustrated a confusion which has been at the heart of our debate from the beginning of Second Reading. What we have heard from the other side of the Chamber from the noble Baroness, Lady Seccombe, the noble Lord, Lord Taylor of Warwick and the noble Baroness, Lady Young, is a case for longer sentences in response to a public concern. I hear that message. What we have not heard from the other side of the Chamber is any specific principle defence of the mandatory sentence.
They are not the same issue. It is my view that a mandatory sentence must be unjust whatever its length because as I understand the word "justice" it must involve passing an individual judgment—as this amendment spells it out—both on the offence and on the offender. Many of us here have had the task of disciplining our children. I do not believe that many of us have disciplined them according to a flat tariff regardless of the circumstances, mood and the conditions of the offence. I believe that most of us would have thought that that was unjust because it would not have been making the punishment fit the 346 crime. That is a vital objective. When the noble and learned Lord, Lord Bingham of Cornhill, referred to this approach to a mandatory sentence and treating sentencing as a mechanical task, he hit the nail on the head. As W.S. Gilbert had it, "Five crimes at half-a-crown, that is exactly 12s 6d".
I hear the argument that has been made about exceptional circumstances but, as I understand it, any sentence which is not based on a specific consideration of the circumstances is necessarily unjust. So if we accept the exceptional circumstances formula we are saying that only in exceptional circumstances can justice be done. That is completely unacceptable. All successful amendments are compromises: this amendment is a compromise. If I live with it, I, like the Home Secretary, will have to make sacrifices of principle. But in the real world one must reach compromise. This is a compromise with which I, like the noble and learned Lord, Lord Ackner, am prepared to live. I hope that the Home Secretary may be able to say the same.
§ 4.45 p.m.
§ Lord Elton
The noble Earl, Lord Russell, and others have addressed the question of principle which lies behind the Bill and these amendments. There are two questions of principle and a number of questions about practice which follow. The one which has bulked large in earlier speeches and in the minds of many of us is whether or not it is proper in principle for Parliament to tell the judges what to do.
In the days of King James we rightly resisted the view that the judges were "lions under the throne". Since then ultimate power in this country has been drawn into the Crown in Parliament. Historically, the Crown has always acceded to the wish of Parliament. Therefore, it is in no way a breach of principle if Parliament is to tell the judges what to do.
The question then arises of what it may tell the judges to do and the authority that it has to do so. Reference has been frequently made to the opinion of the public. We are not an elected Chamber; our knowledge of public opinion is accidental and private. The knowledge of the other place of public opinion is professional and deliberate. Therefore, in this Chamber we are in a sense the jury in a contest between the judges on the one hand and the other place led by the government on the other. I remind the Committee that the judges may be lions under Parliament, but they are not lions under the government. It is not for Her Majesty's Government as the executive to tell the judiciary what to do, but it is for Parliament to interpret what the nation wants the judges to do for its protection.
Let us not forget that a principal duty of any government and any judiciary is the preservation of the Queen's peace, and that is what we are discussing. It is said that the Queen's peace is being unacceptably destroyed by the threat posed to innocent and often defenceless citizens by breakers of the law who may or may not be innocent young people in other respects but who have broken the law and therefore the Queen's peace and must be brought to justice. If the Government were to say that in every such instance and regardless 347 of the innocence or otherwise in other respects of every offender, then first offenders in any of the categories should be subject to a mandatory sentence. I submit that that would be an unacceptable proposition. But that is not what is proposed. I had an elegant paragraph rehearsed, although I should probably have forgotten it. But it was so well put by my noble friend, Lord Burnham. I merely ask the Committee to remember the catalogue of offences and re-offences which he read out which would not qualify for this treatment.
Where a really grave crime such as a violent or sexual crime—the list is long, extending from murder, through rape, to intercourse with a girl under the age of 13, none of which can be brushed off lightly or undertaken unintentionally—is a second offence it stretches the imagination a little that there should be extenuating circumstances which make it worthy of less than an extreme penalty. Those circumstances would have to be exceptional and there is provision for exceptional circumstances in the Bill.
The same argument applies a fortiori to the other less serious cases because they are to be subject to a mandatory sentence, not on the second but on the third offence. The third accidental burglary? The third forgivable class A drugs trafficking ruining hundreds of lives? It seemed to me that at the outset noble and learned Lords and their allies appeared to build an impregnable fortress for their position, to which I was strongly drawn because I am one of those people who has spent much time trying to soften the impact of punishment on young people. But that was as regards the first offence. What one needs with the first offence is the certainty—not the possibility or the fear but the certainty—of what the punishment will be on the second offence and, a fortiori, on the third offence. Justice requires reliability. Young people in particular want to know where they are and this Bill meets that demand. If my noble friend makes the speech I expect in reply to the amendment, I shall vote for her.
I rise to make two points which have not so far been made but which I believe to be of relevance and importance. First, the joint effect of the amendments would be to restore judicial discretion completely, as for first and second offences at present. There is no doubt that that would be their effect. Indeed, the last words of Amendment No. 1 state:would make the prescribed custodial sentence unjust in all the circumstances".That takes us back to square one. That is the position in which the judiciary operates at present. Various other provisions relate to,the offences or to the offender",and to "specific circumstances" and so on. So, the various matters that arise when the courts are considering sentencing will be considered as a result of the amendments.
Secondly, the amendments conflict completely with Clauses 1, 2 and 3 and the movers and supporters of the amendments might just as well have suggested omitting 348 those three clauses from the Bill. The noble Earl, Lord Russell, said—I agree with him because I have often operated in this way myself in various circumstances—"Let us compromise if we can". Yes, by all means let us compromise, but these amendments are not a compromise; they are an obliteration.
§ Baroness Anelay of St. Johns
The noble Lord, Lord Thomas of Gresford, argued earlier that, when sentencing, judges ought to be able to take each and every circumstance into account with each and every particular offence. The noble and learned Lord the Lord Chief Justice referred to the fact that if the judges at first instance get the decision wrong, we can nevertheless rest easy because we have the formality of the Attorney-General's reference and the Court of Appeal can look at the matter afresh and come to another decision.
As a layman looking at the practice, I was somewhat intrigued because the noble and learned Lord, Lord Bingham, said earlier that the reference power was a power that has been exercised with great responsibility and discretion. However, I understand that over the years the Court of Appeal has evolved a policy of double jeopardy which it applies when carrying out its duties. That is not a power which appears in the Criminal Justice Act 1988, but it means that the Court of Appeal takes into account the fact that when an offender appears before it, he or she is being sentenced on a second occasion. Therefore, the sentence which might properly be imposed by the Court of Appeal would be reduced.
Perhaps I may give your Lordships a fairly recent example of that, as reported in The Times on 27th January this year (with the Attorney-General's Reference No. 28 of 1996). A sentence of four years' imprisonment had been passed by a High Court judge in a case of the rape of a prostitute where the offender had insisted on intercourse without protection although she did not so consent. The Lord Chief Justice ruled that the sentence was unduly lenient and that the shortest sentence which the trial judge could properly have imposed was eight years but, taking into account double jeopardy, the court substituted a period of just six years' imprisonment.
I chose that example because it is the most recent that I have to hand, although I have several others. As a layman and a member of the public, I know that there are people who perhaps would not have confidence in extending the powers of the Attorney-General's reference or leaving all sentencing in the hands of the Court of Appeal when policies such as double jeopardy have evolved which appear to result in the offender not receiving the sentence which even the Court of Appeal says should have been passed at the court of first instance.
§ Lord Donaldson of Lymington
I should like to make two brief points. The first arises out of the speech made by the noble Lord, Lord Elton, when he said that it was no breach of principle to tell the judges what to do. I should like to emphasise that to my recollection no judge in this House has ever suggested that the judges 349 do contest the right of Parliament to tell them what to do. Indeed, I know that the Lord Chief Justice has made that absolutely clear. It is Parliament's constitutional right to do that. But there is a world of difference between having the right to do that and doing it.
However, even the noble Lord, Lord Elton, seemed to balk at the idea that Parliament should tell the judges that they should impose a particular sentence for every first offence. That would not be a breach of principle; it would be a monstrous thing to do, but that is something quite different. I hope that we shall not be told again that the judges are in some way obstructing the will of Parliament. They are advising that what the Government propose is wholly wrong and that it would involve them in being asked to do things which they believe to be wholly unjust.
The noble Lord, Lord Renton, said that the amendment takes us back to square one. With respect, I disagree. It gives the judges a discretion which they badly need. But it is a discretion that is exercised against a background. At the moment, there is no background except the maximum sentence. The amendment would substitute a different background. It would be saying, "This is the sentence"—whether mandatory or minimum—"which in the view of Parliament is the norm". Indeed, it would be the minimum norm because there is nothing to stop judges going above it. It would be saying, "This is the norm in terms of minima, but if you, the judges, find that there are circumstances in which the norm would be unjust, you will be free to depart from it". That is something quite different from the wide-ranging discretion which judges have at present.
I hope that when the Minister replies—and no doubt relies upon "exceptional circumstances"—she will think for a moment in terms of percentages. In my book and, I suggest, in the book of most judges, an exceptional circumstance would be a fraction of 1 per cent. of all cases, yet we know that many of the cases which have been mentioned—the young inadequate drug addict and the opportunist young burglar who has been tempted—are not to be counted at under 1 per cent., still less at a fraction of 1 per cent. Large categories fall into what many people would regard as "exceptional circumstances" which the judges could not conscientiously regard as "exceptional circumstances" in the light of the meaning which judges have always given to those words.
§ The Marquess of Hertford
May I ask my noble friend the Minister whether there is any truth at all in the rumour that the Home Office is considering in a few years' time hiring ships to house the number of prisoners for whom there may be no room in our existing gaols or even in the gaols which are now being built? If that rumour is true, I feel some anxiety that we are going back to the days when Charles Dickens was a young man and prisoners were housed in hulks on the Thames Estuary, when an ex-convict could say with perfect truth that he might as well be hanged for a sheep as for a lamb. It follows that ex-convicts who are 350 committing a crime might well be tempted to use a great deal more violence than they otherwise would in order to avoid being caught.
§ Lord Monson
In view of the time, I shall not elaborate on why I support the amendment. But I wonder whether the Minister could kindly indicate in her reply whether any other country in the civilised world, apart from the United States of America, imposes mandatory minimum sentences in the way that this Bill proposes.
§ 5 p.m.
§ Lord Gisborough
The pendulum has swung too far in favour of the criminal in the mechanism of defence, the length of sentence and early release from prison. I am delighted that the pendulum is swinging back with this Bill and others like it. There are too many cases where people who have been released from prison have gone straight back to crime. A murder was committed near my home by someone who had just come out of prison.
I very much support higher sentences, but I do not believe that the Bill as it stands will be effective. The Bill removes the decision from judges and places it in the hands of the CPS. The CPS will decide whether or not it wants a life sentence to be imposed and bring the appropriate charge. It must be wrong to place that decision in the hands of the CPS, which is what this Bill seeks to do.
I do not believe that an amendment of this nature weakens the Bill. It strengthens it. Without it burglars will know that if they are caught on a third occasion they will be subject to a life sentence. Therefore, they must go out to murder because that is the only way they can avoid a life sentence.
§ Lord Elton
I believe that my noble friend has misread the Bill. There is no question of imposing a life sentence for burglary.
§ Lord Gisborough
However, there are other crimes that carry such a sentence. I do not believe that juries will dispense justice because they will not want very long sentences to be imposed. Therefore, they will not bring in verdicts of guilty when such verdicts are justified. Having sat as a magistrate, I know that there is no doubt that each case is different. Discretion is vital. For example, a 20 year-old may commit three crimes one after the other and render himself liable to a long sentence. Although it is very inconvenient, the fact is that such people grow out of it. Some discretion must be allowed.
I believe that as it stands the Bill is little short of grotesque. I do not necessarily support this amendment, but I hope that my noble friend will come back with something that improves the present position.
§ Baroness Blatch
The proposed new clause standing in the name of the noble Lord, Lord McIntosh of Haringey, relates to the circumstances in which courts should have discretion to set aside the mandatory 351 penalties prescribed in Clauses 1 to 3 of the Bill. That is inconsistent with the position adopted by the noble Lord's honourable friends in another place. They abstained from voting on an amendment which would have had exactly the same effect as this amendment would have on Clauses 2 and 3. It would have the effect of removing the test of exceptional circumstances and replacing it with the test of injustice or justice—whichever word one wants to use.
As far as concerns Clauses 2 and 3, burglars and drug dealers will rejoice at these amendments. They set aside exceptional circumstances and substitute the court's view of what is unjust in all the circumstances, as is the case at the present time. That was evidenced by the noble and learned Lord, Lord Woolf, Master of the Rolls—who has not spoken in today's debate—at Second Reading. If the amendment were passed it would have the following effect. For example, having already disposed of special circumstances in Clauses 2 and 3, if a third time burglar or drug dealer came before the court for an offence which would have attracted a much lower penalty in the mind of the judge but for Clauses 2 and 3, under this amendment the court could take the view that the circumstances were such that a mandatory penalty would be unjust.
There would be nothing to prevent the court from taking that view in a high percentage of cases, if not all cases, because there would no longer be a requirement to prove exceptional circumstances. Your Lordships must tell that to the thousands of victims of burglary, the thousands of people who are at the receiving end of the activities of drugs dealers and the community at large who have lost confidence in the willingness of the courts to punish persistent offenders. I shall return to that matter when I deal with court records.
The Bill as it stands provides that the court may set aside the automatic life sentence if it considers that there are exceptional circumstances which justify doing so. As I understand it, the effect of the amendment to Clause 1 would be to stipulate on the face of the Bill that the circumstances in question must relate to either of the two qualifying offences or to the offender. But it is not clear whether the circumstances would have to be exceptional because that word does not appear anywhere in the new clause. However, it appears in Clause 1 of the Bill. As far as one can tell, the new clause does not change that. Although I have listened to the supporters of the amendment, the issue is still far from clear. Therefore, in this context I invite the noble Lord, Lord McIntosh, when he rises to respond to the debate on this amendment to make clear to the Committee what his attitude will be when Amendment No. 3 is debated.
The court should be able to consider any exceptional circumstances of the qualifying offences or the offender, but I do not believe that it is either necessary or helpful to specify it in the Bill. I believe that it would have the effect of fettering the discretion of the courts. Section 22 of the Powers of Criminal Courts Act 1973 similarly provides that a court may suspend a prison sentence if that can be justified by the exceptional circumstances of 352 the case. Courts have interpreted that as extending to the circumstances of the offence and the offender and to any other background circumstances.
The amendment could have the effect of limiting the court's discretion because by stipulating that the exceptional circumstances must relate to either the qualifying offences or the offender the court could be precluded from taking account of other background circumstances. For those reasons, while I do not disagree with the view that the circumstances of the qualifying offences and of the offender may be relevant and exceptional—they are subsumed in the Bill as it now stands—I do not believe that it is either necessary or helpful to specify this on the face of the Bill.
§ Lord McIntosh of Haringey
I am sorry to interrupt the Minister, but before she leaves the point can she tell the Committee to what other exceptional background circumstances she is referring?
§ Baroness Blatch
There is a body of evidence that results from statute and court practice. I shall give the noble Lord an example. I have in mind a case involving a policeman where the court exercised its right to suspend sentence. Perhaps I may refer to another case. An appellant pleaded guilty to unlawful wounding. He was a taxi driver and the victim was a passenger in the taxi who disputed the fare requested at the end of the journey. As the appellant drove away the victim kicked the back of the taxi and caused damage. The appellant stopped, got out and chased the victim. When he heard the victim call to his wife to bring him a crowbar the appellant took a chisel from a toolbox in the taxi and struck the victim a number of blows to the head and face. The victim suffered several lacerations that required stitches, bruising and swelling to the face and a suspected fracture to the orbit of the left eye. The appellant was sentenced to six months' imprisonment. The sentencer stated that he considered the offence so serious that only a custodial sentence could be justified for the offender, and that he imposed a shorter sentence in view of the mitigating circumstances—the appellant's good record, the fact that his wife and mother-in-law were dependent on him and his remorse. In the view of the court, there was no error in the sentencer's decision that the offence was so serious that only a custodial sentence could be justified. The court would not accede to the submission that the sentence should be suspended. In that case the court was not allowed to.
Perhaps I may turn to the other case, because the noble Lord wants an example. The appellant had been a serving police officer for almost 20 years and had lived in a police house. His wife had become seriously disabled and could walk inside the house only with the aid of a stick. Outside the house she required a wheelchair. The appellant had been advised to have building works done to the house to make life easier for her and had been under the impression that he would receive a grant for the whole of the cost of the necessary work. When the work was started and the appellant was committed for the whole sum, he discovered that only 75 per cent. of the cost could be covered by the grant and he fell into financial difficulties as a result.
353 As a result of the offences—which were that he was stealing money from the police station—the appellant had lost his employment and his house and the work that had been done to it still had to be paid for. His pension was frozen and would not be payable until he was 60. He had made two attempts at suicide and had been under psychiatric care for reactive depression, partly arising from the stress and anxiety of the offence before his arrest. A medical report described him as devastated by the charges and indicated that he was in need of continuing psychiatric care.
The decision was that the mitigating circumstances should not be allowed to obscure the fact that this was an exceedingly serious breach of trust committed by a police officer in the course of his responsibilities for the administration of justice. Although the largest sum in any one of the counts was just over £500 and the next largest £360, there could be no question that each such offence, whether taken individually or in combination with any one such offence, was so serious that only a custodial sentence could be justified. It was not suggested that the sentences of three months were not commensurate with the seriousness of the offences, as was required by Section 2(2)(a). The court had been invited to treat the case as one in which there were exceptional circumstances so as to justify the court in suspending the sentence under the Powers of Criminal Courts Act 1973.
I am not saying that that is an example of what will happen in this case. But there are surrounding circumstances which can be taken into account. We are saying simply that we should not fetter the discretion.
Perhaps I may continue, because I believe that the noble Lord is artfully taking me away from the thrust of what I want to say about the importance of the debate—
§ Baroness Blatch
The noble Lord has a vested interest in doing just that.
The effect of the proposed new clause, combined with the other amendments to Clauses 2 and 3, is quite a different matter. The effect would be to replace the "exceptional circumstances" test altogether. Instead, the court would have the discretion to set aside the mandatory penalty where there are specific, not exceptional, circumstances which relate to the offence or the offender and which would make the mandatory sentence unjust in all the circumstances.
This is a wrecking amendment. It would quite simply drive a coach and horses through the provisions in these clauses. They are designed to protect the public from persistent and serious offenders and to ensure that punishment takes proper account of the persistence of the offending. The changes proposed by the noble Lord, Lord McIntosh, would seriously undermine these important objectives. No longer would the circumstance have to be exceptional; it would simply have to be specific. Any judge could exercise any judgment whatever—as indeed judges do now—that it was unjust, and against no test at all.
354 We have accepted that the court needs to have some discretion to set aside the mandatory penalties. However, any such discretion should not be so wide as to allow that mandatory penalties will not be imposed perhaps in the majority of cases of serious persistent offending. We believe that exceptional circumstances should be just that—exceptional—determined by the court and explained clearly in open court.
I should like to examine the differences between the "exceptional circumstances" test and the alternative which the noble Lord, Lord McIntosh, has put forward. The new test differs from the "exceptional circumstances" test in three respects. First, the circumstances must be specific. Specific to what? Secondly, they must relate to any of the qualifying offences or to the offender. I have already discussed this point in relation to Clause 1 and will not therefore say any more about it. Thirdly, and most important, they must be such as to make the mandatory sentence unjust in all the circumstances.
The noble Lord, Lord McIntosh, has suggested that the words "specific circumstances" would serve to narrow the test of unjust in all the circumstances. His colleague in another place, Mr. Michael, did not agree with that view. But to my mind they do not. It seems to me that they simply mean any circumstances that can be clearly defined and spelt out as specific. This of course is what courts are already asked to do under the Bill when explaining what the exceptional circumstances are.
The phrase "unjust in all the circumstances" goes to the heart of these amendments. In relation to this aspect of the amendments, my concern is that the discretion to set aside the mandatory penalty would be too wide. The noble and learned Lord, Lord Bingham of Cornhill, has said that the courts interpret "exceptional circumstances" to mean very unusual at the very least. I make no apology for saying that that is exactly what we want to achieve. The whole essence of mandatory penalties is that they should be imposed as a matter of course in the generality of cases. If they are not, then mandatory penalties will not have the effect which we intend and expect that they should. My noble friend Lord Elton gave the most elegant justification of why it is important to have the near certainty, except for exceptional circumstances, that those mandatory sentences will apply if people are persistently burgling, dealing in Class A drugs and repeating violent offences.
The noble and learned Lord, Lord Bingham of Cornhill, also said that a test based on the trial judge's view of whether or not the mandatory sentence was unjust would enable the judge to avoid imposing the mandatory sentence in any case where he considered it simply anomalous to do so. That is the effect of the amendments to Clauses 2 and 3, not to Clause 1.
The amendments would negate the purpose of mandatory sentences and would allow the judge to set aside the mandatory penalty in any case where he would otherwise have been minded to impose a different penalty. And that would make nonsense out of the whole concept and purpose of mandatory penalties.
355 This is a wrecking amendment and would destroy the essential point of statutory minimum sentences for persistent burglars and drug dealers by allowing such a wide discretion to the courts which would lead us back to where we are now.
Mandatory penalties will not lead to injustices. On the contrary, I would contend that without mandatory penalties justice is not being done to the wider community. Perhaps I could remind the Committee of the figures. A recent sample showed that the average sentence imposed by the Crown Court on offenders convicted of domestic burglary for the first time is 16.2 months. After three or more convictions, the average rose to only 18.9 months, and after seven or more convictions to 10.4 months. And 28 per cent. of offenders in the Crown Court with seven or more convictions for domestic burglary were not sent to prison at all. Where is the justice in that? Is it any wonder that the public have lost confidence?
We believe that where the stringent qualifying conditions set out in Clauses 2 and 3 are met mandatory sentences should be imposed as a matter of course in most cases. There is no injustice involved in Parliament saying that persistent offenders who continue to offend should go to prison for a period not less than that stated in the Bill or that dangerous offenders should not be released without a risk assessment being carried out first.
There may be occasional cases where the mandatory penalty would be unnecessary or inappropriate. That is why the Bill provides discretion for the court to set aside the mandatory penalty in exceptional circumstances. In my view, this strikes the right balance. Deliberately widening the scope to set aside the mandatory sentence would seriously undermine it.
The noble Lord, Lord McIntosh, referred to the USA. This is not American-style justice. In the United States, if somebody commits any crime, however serious or trivial, on three occasions, he receives a sentence of 25 years. These are narrowly focused propositions set out in the Bill. I stand by that.
My noble friend Lord Carlisle referred to the sovereignty of Parliament. I must say to my noble friend that Parliament is sovereign in these matters. If it should take the view that mandatory penalties should apply for certain categories of crime, then it is for the courts to implement the will of Parliament.
My noble friend referred to the fact that many senior members of the judiciary support his proposals. I speak for the man on the top of the bus. There is another group of people whose views are paramount in these matters, not just senior judiciary. I am talking about the victims of crime and the public who look to Parliament for the right degree of protection set out in a framework to be implemented by the courts.
My noble friend appears to suggest—and I find this almost offensive—that stealing valuable items from people who have such items should be taken more seriously than the persistent burglar who daily terrorises people who are much less fortunate by stealing items of lower value such as a bottle of milk, 50 pence from a 356 purse or small but essential items from people who do not have very much. Persistent burglary on any scale is a scourge on our community. A disproportionate number of people at the lower end of the income scale suffer almost daily from it.
§ Lord Carlisle of Bucklow
That is a parody of what I was arguing. There is a distinction between the persistent, professional burglar on the one hand and the small opportunist burglar on the other. Of course I believe that persistent and professional burglars should go to prison for a long time. However, I give one example. A man commits two offences at the age of 16 and then, at the age of 30 or 35 in totally different circumstances, when he is married, with a job and family and having done nothing wrong in the intervening years, on the spur of the moment he commits a burglary of the type mentioned by the Minister. Perhaps he steals a bottle of milk or something of that nature. Is she really saying that a sentence of three years should automatically follow? I do not believe that that is just.
§ Baroness Blatch
I have not advocated an automatic sentence of three years for anybody. I am simply saying that I support the proposals set out in the Bill. If somebody burgles persistently, whether he steals a loaf of bread, a pint of milk or 50 pence from a purse, he should receive a sentence of at least three years. It is just possible—and I do not wish to suggest that it is—that the case outlined by my noble friend could be a special circumstance to be considered by the court.
My noble friend said also that mandatory penalties mean that the same sentence follows for the same crime. That is simply not true.
I have some statistics in relation to burglars receiving sentences of more than three years and sentences of more than five years, given that the maximum sentence is 14 years for burglary. I have the 1995 figures. Of 4,400 offenders sentenced for domestic burglary at Crown Courts, 179—only 4 per cent.—received a sentence of more than three years when the maximum was 14 years. Moreover, only 18 received sentences of more than five years. Nobody received the maximum sentence.
I agree with the noble Lord, Lord Thomas of Gresford, that courts impose long, determinate sentences for violent crimes. But when the offender has served his sentence he must be released, even if there is every reason to believe that he will commit a further serious offence. That is the point being missed by the noble Lord. That is exactly what happens in a significant proportion of cases.
I give the Committee an example. A rapist was sentenced at Chelmsford Crown Court. He already had two previous convictions for rape, including a conviction for rape of a child. Because he was not given a life sentence on those occasions, he had to be released at the end of each sentence. Under Clause 1, he would automatically have received a life sentence on his second conviction and would not have been free to rape on that third occasion. Such offenders will no longer be released automatically into the community.
357 The noble Lord does not know of a single case where a life sentence has not been given for the second offence. Perhaps I may refer him to paragraph 10.4 on page 46 of the White Paper. He will see the statistic that in 1994, 434 offenders were convicted of rape or attempted rape but only 12 were sentenced to life imprisonment. In 1994, 217 offenders were convicted of a second serious violent or sexual offence which included rape but only 10 received a discretionary life sentence.
The noble Lord referred to overcrowding and an increase in doubling and trebling of prisoners in cells. The practice of three prisoners to a cell for one has been completely eliminated. As regards the practice of two prisoners in a cell designed for one person, 27 per cent. of prisoners were in that situation in 1987 and that figure has now fallen to 17 per cent. It is our policy to continue to reduce that.
Perhaps I may defend my noble and learned friend the Lord Chancellor who was prayed in aid by the noble and learned Lord, Lord Ackner. I confirm that my noble and learned friend the Lord Chancellor believes that the courts should have discretion to set aside mandatory penalties in exceptional circumstances, as does my right honourable friend the Home Secretary, and I too believe that.
Perhaps I may say to the noble and learned Lord, Lord Donaldson, that at this moment no one can say whether the figure for the use of exceptional circumstances will be 0.5 per cent., 1 per cent., 1.5 per cent. or 2 per cent. This is a new set of propositions. The noble and learned Lord, Lord Bingham, said that we must not compare this with driving offences or other offences. This is a new set of proposals. It is a matter for the courts to use them. There is an appeal system which serves both the defendant and the Attorney-General and that can be used to determine what is just in all cases.
The proposals are narrowly focused. I believe that they are a proper response to public concern. I ask noble Lords who will be voting in a few moments whether it is not reasonable that except in exceptional circumstances, a person who has committed repeated violent crimes should receive a sentence which ensures that he is released only when it is safe to do so. Is it not reasonable also that there should be power to recall such offenders if they display further violent behaviour? Is it not reasonable for persistent dealers in Class A drugs who have been convicted not once, twice but three times to receive a sentence of not less than seven years? Thirdly, is it not reasonable to say that persistent domestic burglars who are convicted not once, twice but three times, and possibly on the back of many multiple burglaries, should receive a sentence of not less than three years?
I believe that these proposals are supported by the public. This Bill arrived in this House with a majority of 200 from another place. Should the noble Lord, Lord McIntosh, seek the opinion of the House, on behalf of those who suffer daily from the activities of 358 violent offenders and persistent burglars and drug dealers I invite the Committee to join me in the Division Lobby to vote against the amendment.
§ Lord Hacking
I intervene with great reluctance from these Benches after the Minister has sat down. I do so with great reluctance because I am concerned about the penal policy of this Government, my Government. On a number of occasions during this debate, Members of the Committee on these Benches referred to these amendments as wrecking amendments. But I am concerned that this Bill is wrecking the established penal policy of this Government.
My noble friends sitting beside me clearly are not aware of the Government's penal policy and have not read the Government White Papers on penal policy. It was clearly established in the 1990 White Paper. As with the latest White Paper, there was a concern about crime and a concern about the need for tougher sentences. It is all in that document. It is all in that White Paper. I have it with me. I shall read from it again, especially for the benefit of my noble friends on this side of the Committee. They should remind themselves of it. I quote from paragraph 2.16 of Crime, Justice and Protecting the Public:The legislation will be in general terms. It is not the Government's intention that Parliament should hind the courts with strict legislative guidelines. The courts will properly continue to have the wide discretion they need if they are to deal justly with the great variety of crimes which come before them. The Government rejects a rigid statutory framework … or a system of minimum or mandatory sentences for certain offences. This would make it more difficult to sentence justly in exceptional circumstances".That is why I have a continuing concern. I hope that more of my noble friends on this side of the Committee will share that concern and that they will remind themselves of the established penal policy of this Government.
§ Lord McIntosh of Haringey
Members of the Committee will be grateful for the passionate intervention of the noble Lord. I believe that we would do ourselves credit if we ignored phrases like, "Burglars and drug dealers will rejoice on behalf of those who suffer daily", "Tell that to the victims" or "Speaking on behalf of the man on the top of the bus". Let us remind ourselves of what we have agreed upon. As the noble and learned Lord, Lord Donaldson, reminded us, we agree that it is right and proper that Parliament should tell the judges what to do. But, having said that, it is also right and proper that Parliament should be circumspect and wise in what it tells the judges to do.
We are not discussing an issue of longer sentences. If we were, then the Government would be accepting our amendments about the power of the Attorney-General to appeal against the leniency of sentences. No one is saying that there should not be maximum sentences for hardened drug dealers or hardened burglars; indeed, we have all made it clear that we agree with the Home Secretary about the penalties which should be imposed upon professional burglars and drug dealers.
359 As I said, we are not discussing the issue of longer sentences; we are discussing the mandatory minimum sentence. The amendments say that that mandatory minimum sentence should be tempered where appropriate in the interests of justice by a measure of judicial discretion. It is no good saying again and again that these are wrecking amendments. They are—again these are not my words but the words of the independent body, Justice—an attempt to ensure that judicial discretion is preserved while retaining a presumption in favour of mandatory sentences. I recommend that view and these amendments to the Committee.
§ 5.33 p.m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 180; Not-Contents, 172.361
|Division No. 1|
|Ackner, L.||Elis-Thomas, L.|
|Acton, L.||Ezra, L.|
|Addington, L.||Falkland, V. [Teller.]|
|Alderdice, L.||Farrington of Ribbleton, B.|
|Aldington, L.||Fisher of Rednal, B.|
|Ampthill, L.||Geraint, L.|
|Annan, L.||Gilmour of Craigmillar, L.|
|Archer of Sandwell, L.||Gladwin of Clee, L.|
|Ashley of Stoke, L.||Graham of Edmonton, L. [Teller.]|
|Avebury, L.||Grenfell, L.|
|Bath, M.||Hacking, L.|
|Beaumont of Whitley, L.||Hailsham of Saint Marylebone, L.|
|Berkeley, L.||Hamwee, B.|
|Bingham of Comhill, L.||Hankey, L.|
|Birmingham, Bp.||Hanworth, V.|
|Blackstone, B.||Harris of Greenwich, L.|
|Borrie, L.||Harrowby, E.|
|Brightman, L.||Haskel, L.|
|Broadbridge, L.||Hayman, B.|
|Brooks of Tremorfa, L.||Hayter, L.|
|Bruce of Donington, L.||Healey, L.|
|Callaghan of Cardiff, L.||Henderson of Brompton, L.|
|Calverley, L.||Henniker, L.|
|Carlisle, E.||Hereford, Bp.|
|Carlisle of Bucklow, L.||Hertford, M.|
|Carmichael of Kelvingrove, L.||Hilton of Eggardon, B.|
|Carter, L.||Hoffmann, L.|
|Castle of Blackburn, B.||Hollick, L.|
|Chandos, V.||Hollis of Heigham, B.|
|Chorley, L.||Holme of Cheltenham, L.|
|Clancarty, E.||Hooson, L.|
|Cledwyn of Penrhos, L.||Hope of Craighead, L.|
|Clinton-Davis, L.||Howell, L.|
|Colville of Culross, V.||Howie of Troon, L.|
|Congleton, L.||Hughes, L.|
|Currie of Marylebone, L.||Hutchinson of Lullington, L.|
|Dahrendorf, L.||Hylton, L.|
|Darcy (de Knayth), B.||Hylton-Foster, B.|
|Davies, L.||Ilchester, E.|
|Dean of Beswick, L.||Inchyra, L.|
|Desai, L.||Irvine of Lairg, L.|
|Diamond, L.||Jay of Paddington, B.|
|Donaldson of Kingsbridge, L.||Jeger, B.|
|Donaldson of Lymington, L.||Jenkins of Putney, L.|
|Dormand of Easington, L.||Judd, L.|
|Dubs, L.||Kennet, L.|
|Eatwell, L.||Kilmarnock, L.|
|Kirkwood, L.||Russell, E.|
|Lane, L.||Sainsbury, L.|
|Lawrence, L.||Saltoun of Abernethy, Ly.|
|Leathers, V.||Sandwich, E.|
|Lester of Herne Hill, L.||Sefton of Garston, L.|
|Listowel, E.||Sempill, L.|
|Longford, E.||Serota, B.|
|Lovell-Davis, L.||Shannon, E.|
|Lowry, L.||Shepherd, L.|
|Macaulay of Bragar, L.||Simon of Glaisdale, L.|
|McIntosh of Haringey, L.||Smith of Gilmorehill, B.|
|McNair, L.||Stallard, L.|
|McNally, L.||Stanley of Alderley, L.|
|Mallalieu, B.||Stoddart of Swindon, L.|
|Mar and Kellie, E.||Strabolgi, L.|
|Masham of Ilton, B.||Swinfen, L.|
|Merlyn-Rees, L.||Symons of Vernham Dean, B.|
|Meston, L.||Taverne, L.|
|Methuen, L.||Taylor of Blackburn, L.|
|Molloy, L.||Taylor of Gosforth, L.|
|Monkswell, L.||Tenby, V.|
|Monson, L.||Thomas of Gresford, L.|
|Morris of Castle Morris, L.||Thomas of Walliswood, B.|
|Murray of Epping Forest, L.||Thomson of Monifieth, L.|
|Nicol, B.||Thurlow, L.|
|Nolan, L.||Thurso, V.|
|Norton, L.||Tope, L.|
|Ogmore, L.||Tordoff, L.|
|Oliver of Aylmerton, L.||Turner of Camden, B.|
|Pender, L.||Wallace of Coslany, L.|
|Peston, L.||Walpole, L.|
|Plant of Highfield, L.||Warnock, B.|
|Ponsonby of Shulbrede, L.||Waverley, V.|
|Prys-Davies, L.||Weatherill, L.|
|Ramsay of Cartvale, B.||Wedderburn of Charlton, L.|
|Rea, L.||White, B.|
|Redesdale, L.||Wilberforce, L.|
|Rees-Mogg, L.||Williams of Crosby, B.|
|Richard, L.||Williams of Elvel, L.|
|Ritchie of Dundee, L.||Williams of Mostyn, L.|
|Robson of Kiddington, B.||Wilson of Tillyorn, L.|
|Rochester, L.||Winchilsea and Nottingham, E.|
|Rodgers of Quarry Bank, L.||Young of Dartington, L.|
|Addison, V.||Byford, B.|
|Ailesbury, M.||Cadman, L.|
|Ailsa, M.||Campbell of Croy, L.|
|Allenby of Megiddo, V.||Carnock, L.|
|Anelay of St. Johns, B.||Chadlington, L.|
|Annaly, L.||Chalfont, L.|
|Archer of Weston-Super-Mare, L.||Chalker of Wallasey, B.|
|Arran, E.||Chelmsford, V.|
|Ashbourne, L.||Chesham, L. [Teller.]|
|Astor of Hever, L.||Clanwilliam, E.|
|Attlee, E.||Coleraine, L.|
|Balfour, E.||Coleridge, L.|
|Banbury of Southam, L.||Colwyn, L.|
|Barber of Tewkesbury, L.||Courtown, E.|
|Bauer, L.||Craig of Radley, L.|
|Bearsted, V.||Cranborne, V. [Lord Privy Seal.]|
|Belhaven and Stenton, L.||Crathorne, L.|
|Berners, B.||Crickhowell, L.|
|Bethell, L.||Cumberlege, B.|
|Biddulph, L.||Davidson, V.|
|Birdwood, L.||Dean of Harptree, L.|
|Blaker, L.||Denham, L.|
|Blatch, B.||Denton of Wakefield, B.|
|Bowness, L.||Derwent, L.|
|Brabazon of Tara, L.||Dixon-Smith, L.|
|Bradford, E.||Downshire, M.|
|Brentford, V.||Dudley, E.|
|Brougham and Vaux, L.||Eden of Winton, L.|
|Burnham, L.||Elibank, L.|
|Butterfield, L.||Ellenborough, L.|
|Elles, B.||Munster, E.|
|Elton, L.||Murton of Lindisfarne, L.|
|Erroll, E.||Norfolk, D.|
|Exmouth, V.||Norrie, L.|
|Fairhaven, L.||Northesk, E.|
|Feldman, L.||Orkney, E.|
|Ferrers, E.||Oxfuird, V.|
|Fraser of Carmyllie, L.||Pearson of Rannoch, L.|
|Gainford, L.||Peel, E.|
|Gisborough, L.||Perry of Southwark, B.|
|Gladwyn, L.||Pilkington of Oxenford, L.|
|Goschen, V.||Platt of Writtle, B.|
|Harding of Petherton, L.||Plumb, L.|
|Harlech. L.||Plummer of St. Marylebone, L.|
|Harris of High Cross, L.||Rankeillour, L.|
|Harris of Peckham, L.||Rawlings, B.|
|Henley, L.||Rennell, L.|
|Holderness, L.||Renton, L.|
|HolmPatrick, L.||Renwick, L.|
|Home, E.||Rodney, L.|
|Hood, V.||Romney, E.|
|Howe, E.||Rowallan, E.|
|Inchcape, E.||Saatchi, L.|
|Inglewood, L.||Saint Albans, D.|
|Ironside, L.||St. Davids, V.|
|Jenkin of Roding, L.||Sandys, L.|
|Kenyon, L.||Savile, L.|
|Kimball, L.||Seccombe, B.|
|Kinnoull, E.||Sheppard of Didgemere, L.|
|Knutsford, V.||Simon, V.|
|Laing of Dunphail, L.||Stevens of Ludgate, L.|
|Lane of Horsell, L.||Stewartby, L.|
|Lauderdale, E.||Strange, B.|
|Lawson of Blaby, L.||Strathclyde, L. [Teller.]|
|Leigh, L.||Strathcona and Mount Royal, L.|
|Lindsay, E.||Sudeley, L.|
|Liverpool, E.||Swinton, E.|
|Long, V.||Taylor of Warwick, L.|
|Lucas, L.||Tebbit, L|
|Lucas of Chilworth, L.||Teviot, L.|
|Luke, L.||Teynham, L.|
|McColl of Dulwich, L.||Thomas of Gwydir, L.|
|McConnell, L.||Trefgarne, L.|
|Mackay of Ardbrecknish, L.||Trumpington, B.|
|Mackay of Clashfern, L. [Lord Chancellor.]||Ullswater, V.|
|Mackay of Drumadoon, L.||Wakeham, L.|
|Macleod of Borve, B.||Walker of Worcester, L.|
|Marlesford, L.||Westbury, L.|
|Merrivale, L.||Whitelaw, V.|
|Mersey, V.||Wilcox, B.|
|Miller of Hendon, B.||Wise, L.|
|Milverton, L.||Wolfson, L.|
|Monk Bretton, L.||Wyatt of Weeford, L.|
|Mottistone, L.||Wynford, L.|
|Mowbray and Stourton, L.||Young, B.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ Clause 1 [Mandatory life sentence for second serious offence]:
§ 5.44 p.m.
Lord McIntosh of Haringey moved Amendment No. 2:
Page 1, line 12, at end insert ("committed when he was over 16 years of age").
§ The noble Lord said: I thought I would have to pause to allow Members of the Committee to leave the Chamber. But let us move on. This is a minor but 362 morally rather important series of amendments. In moving Amendment No. 2 I wish to speak also to Amendments Nos. 16 and 24.
§ The issue here is the following: if the original triggering offences were committed when the offender was under the age of 17 they should not count towards the tariff of a mandatory sentence. It is important to reaffirm that the amendment that has been carried has not driven a coach and horses through the Bill; mandatory minimum sentences are still there. This amendment is still relevant in the light of what the Minister has said. However, it is an established principle of sentencing practice that youth, and the consequent immaturity of an offender, is a mitigating circumstance which, other things being equal, could justify a less severe sentence than would be imposed on an adult in similar circumstances.
§ I hope I shall not be accused of any coach and horses tactics here. This amendment states that someone who has committed an offence at the age of 16 or under, and who might commit a further offence 10, 20, 30 or 40 years later, should not have that youthful indiscretion held against him under the mandatory minimum sentencing procedures. I do not know what the figures are. Perhaps the Minister will be able to tell me; that would be most helpful. She is indicating that she will be able to do so. I do not know whether this measure will affect a significant number of offenders. I do not really mind very much. What I seek to achieve is that people who are little more than children should not be trapped into the progression of sentencing which is proposed under the mandatory minimum sentencing procedures. I beg to move.
§ Baroness Blatch
This is an extraordinary group of amendments. It is proposed that crimes of violence, crimes of burglary and crimes of dealing in hard drugs which are committed by young people up to the age of 17, and who are tried and convicted in court, will not count as qualifying offences in relation to the mandatory penalties set out in Clauses 1, 2 and 3. The Bill as it stands provides that convictions for relevant offences may count as qualifying convictions irrespective of the age of the offender at the time he committed the offence in question. However, none of the mandatory penalties can be imposed unless the offender was over 18 when he or she committed the final qualifying offence.
Let us consider the implications of this in relation to the various mandatory penalties. Clause 1 covers serious violent and sex offences such as attempted murder, manslaughter, the most serious woundings, rape and attempted rape. The Government do not propose that an automatic life sentence should be imposed on a juvenile offender. However, if a juvenile offender rapes as a 16 year-old and then rapes again as a 19 or 20 year-old, we believe that an automatic life sentence should indeed be imposed. The purpose of Clause 1 is not to punish offenders for what they did as juveniles; it is to ensure that adults who have been convicted for at least the second time of a serious violent or sex offence are not released from custody until the Parole Board is satisfied 363 that it is safe to do so. On that basis it seems to me that the age when the first offence was committed is beside the point.
It is fair to say that only a small proportion of those convicted of serious violent or sex offences, or trafficking in Class A drugs, were under the age of 17 when they committed the offence in question. However, the picture is different in the case of burglars. Eighteen per cent. of offenders convicted of domestic burglary in 1995 were under the age of 17 at the time of the conviction. And we should not forget that many young people are cautioned, not prosecuted, when they first offend. In 1995 42 per cent. of 10 to 16 year-old boys and 67 per cent. of girls who committed domestic burglary were cautioned. So when a juvenile is convicted of burglary it is likely to be a serious offence, and quite possibly involves second, third or multiple burglaries. Allowing those who offend as young people and then as adults in effect to get away with or ignore their earlier offending behaviour will simply encourage that behaviour.
There is a good deal of evidence that domestic burglars are highly persistent offenders and that many begin to offend when they are very young. Research shows that the great majority of offenders with multiple convictions for domestic burglary were first convicted of that offence when they were a juvenile. Three fifths of a sample of domestic burglars indicted in 1993 and 1994 who would have been eligible for the mandatory penalty under Clause 3 of the Bill had it been in force, were first convicted of domestic burglary before the age of 17. In other words, many offenders who are first convicted of burglary at the age of 15 or 16 do not grow out of it after a few years. What they are more likely to do—it is even more likely under these amendments—is to embark on a long criminal career.
Why should convictions for offences committed under the age of 17 be disregarded once the offender has become an adult? Where an 18 year-old already has two or more previous convictions for burglary, why should the public have to wait until he gets another three before he is taken out of circulation?
We should remember that the offences covered by Clauses 1, 2, and 3 are all serious offences, whether they are committed by a juvenile or an adult. From the victim's point of view, being raped, burgled or seriously wounded is every bit as serious whether the offender is 16 or 26. It has long been recognised that long sentences may be appropriate and necessary where juveniles commit serious crimes. Section 53 of the Children and Young Persons Act 1933 provides that courts may impose sentences up to the adult maximum on juveniles convicted of serious offences, including all those covered by Clauses 1 to 3 of the Bill. The noble Lord, Lord McIntosh, on behalf of his colleagues in the Labour Party, wants to disregard those crimes for the purposes of this Bill.
The purpose of Clause 1 is to protect the public against serious repeat violent or sex offenders. The purpose of Clauses 2 and 3 is to ensure that stiff minimum sentences are imposed on persistent burglars and drug dealers. In no case will mandatory penalties 364 ever be imposed for an offence committed when the offender was under the age of 18. But I have to say that I can see no reason whatsoever why serious offences committed under the age of 17 should simply be ignored if the offender continues to commit similar offences as an adult. To do so would send a very strange message to the public and offenders alike.
We have substantially widened the exceptional circumstances test. The noble Lord can rest in his bed. Sadly, victims will not be able to rest in their beds. The noble Lord gave an example of a long period of time elapsing between the juvenile up to the age of 17 committing a crime and the third qualifying crime not being committed until many years later. Under our proposal at least the test would have been "exceptional circumstances". However, having set aside completely "exceptional circumstances" for burglary, and "special circumstances" for drug dealing in Class A drugs, replacing those words with "in the interests of justice", if we accept Amendment No. 3., the noble Lord need not worry about that circumstance.
I have given the figures of people who are committing crimes at the ages of 15, 16 and 17, causing deep distress and anxiety to the community. I cannot think of any justification whatsoever for disregarding those crimes as qualifying offences.
§ Lord Donaldson of Lymington
The noble Baroness asked two rhetorical questions. Perhaps I may answer them briefly. She asked why the public should have to wait for a burglar to commit three offences above the age of 16 before he is sent to prison for three years. The answer is that they do not. If the circumstances justify it, he will be sent to prison for that period. The noble Baroness speaks as though the amendment were seeking to impose maximum sentences. It is not.
Perhaps I may answer the second question. Why should the offences committed at the age of 16 or below be ignored? They are not ignored. They are taken into account by the courts but they do not trigger mandatory or minimum sentences.
§ Baroness Blatch
Perhaps I may say, first, to the noble and learned Lord that if he could give me some evidence that the courts are giving sentences of over three years I should be impressed with the point he makes. I have given the figure that shows how reluctant the courts are even to reach the minimum sentence of three years that we suggest in the Bill, and their almost total reluctance to go beyond five or 10 years. The rationale of the Bill is the record of reluctance of the courts to impose even the minimum sentences. A young burglar almost never goes to prison for three years.
On the related matters, I entirely take the noble and learned Lord's points. The courts are indeed free to pass sentences on young people not just of three years but up to 14 years. But it never happens. We are simply saying that because it does not happen those offences committed by 14, 15, and 16 year-olds should count as qualifying offences if someone is a persistent burglar, a persistent drug dealer, or a repeat violent offender.
§ Lord Elton
At one point the noble Lord, Lord McIntosh of Haringey, implied that the distance 365 of time was relevant, and asked why a person who had committed an offence 15, 16 or 20 years ago should have that taken into consideration. Am I not right in saying that in a recently reported case a respectable married gentleman—he had been married for over 20 years—committed a violent sexual assault very nearly killing his subject and, I think, being killed himself in the process? It appeared that way down the perspective of time, long before, he had committed a similar offence. It seems to me, therefore, that the distance between two offences is not relevant. The age at the time of the offence may be relevant. That is being discussed. But I do not think that we should consider the distance in time.
§ The Marquess of Hertford
Does the Rehabilitation of Offenders Act apply to this Act? If so, am I not right in saying that if someone committed two offences as a juvenile and then went straight for 20 years the previous offences would have been taken out of the record in any case?
§ Baroness Blatch
We shall later discuss an amendment linked with the Rehabilitation of Offenders Act. But the purpose of the Rehabilitation of Offenders Act is to allow people to return to the community, to get back into work, and to be treated as people who have spent convictions. In other words, a period of time elapses, and the period is different for different crimes. But for the purposes of qualifying as a persistent offender and for the purposes of Clauses 1, 2 and 3, we do not ignore spent convictions. If someone has been violent in his lifetime, and is repeatedly violent, or has burgled once, twice and three times, or dealt in Class A drugs once, twice, three times or more, we simply say that they should qualify for the purpose of consistency which is established by the measures in the Bill.
§ Lord Ackner
It is quite clear from what the noble Baroness said that the Government have no confidence in the judges imposing the appropriate sentence in serious cases. If the Government have no confidence in the judges, then I must take it that the noble Baroness has no confidence in the Attorney General. It is the Attorney General's function to bring to the attention of the Court of Appeal in serious cases sentences which are inadequate.
There has been a consistent reference to 207 cases of offenders convicted on a second serious violent or sexual offence in 1994, only 10 of them receiving a discretionary life sentence. The Attorney-General referred only two of the 207 cases, and he did not seek a life sentence in either.
I do not know whether the noble Baroness has had time (I can well understand it if she has not) to read the reference in The Times on Tuesday, 11th February to the obligations of the Attorney-General to defend the public interest. The article ends with this quotation:Judges are now very aware what is the proper range within which they should sentence. They are thinking about it more carefully than ten years ago".The position is that the Government are 10 years out of date in their attack on the judiciary; and even then, the current attack is excessive.
§ 6 p.m.
§ Lord Thomas of Gresford
Perhaps I may follow a point made by the noble and learned Lord, Lord Ackner. The Minister has constantly clung to the three-year sentence as though it were handed down on tablets of stone. Why is that the right sentence? Why not four years, or five years? Why not two?
As the noble and learned Lord said, judges have for a long time been subject to training during which sentencing problems are discussed and they receive lectures from academics, social workers and psychiatrists. Coming together as they do, they have ample opportunity to discuss levels of sentencing all over the country. They are also engaged in the practical work of the courts throughout their working lives. Why is the collective opinion of judges wrong and the Home Secretary right? If the sentences for the sort of offences referred to by the Minister do not reach three years, that is the collective wisdom of the whole judiciary. Why is it wrong?
§ Baroness Blatch
The noble and learned Lord, Lord Ackner, referred constantly to "the Government" in relation to these issues. I suggest that what we are doing as a government on behalf of the people is reflecting the anxiety of the public on these matters that in certain circumstances sentences should not be—I did not say, as the noble Lord, Lord Thomas of Gresford, suggested, that they should be three years—less than three years for persistent burglary and less than seven years for persistent dealing in hard drugs for at least three convictions, or less than a life sentence for repeated violent offences. I do not advocate any particular sentence. It is possible that one of the previous qualifying offences could have been very serious and beyond the minimum mandatory sentence that we suggest.
It is entirely proper and legitimate for the Government to pick up substantial disquiet on the part of the community about these matters. As I want to keep repeating, we are simply saying that there should be a floor on the sentencing of people who persistently commit these crimes which are offensive to the community.
The noble and learned Lord, Lord Ackner, mentioned the Attorney-General referring cases to the Court of Appeal. As he knows, the Attorney-General can refer cases to the Court of Appeal only if the sentences fall within the narrow definitions of being unduly lenient compared to the levels currently imposed in the generality of cases. But longer term sentences are frequently imposed on serious violent and sexual offenders—a point made by the noble Lord, Lord Thomas of Gresford—which cannot be challenged as unduly lenient.
The point that has been missed throughout this debate by senior noble and learned Lords as well as others is that the offender must be released irrespective of the risk of reoffending. What is most disquieting to the public is to see somebody whom the police, prison officers and the Probation Service know is dangerous but who at the automatic release date must be released into the 367 community. The most dangerous offenders, who would normally be refused parole, are released into the community with the least amount of supervision—and again, they are released at the automatic release point without any regard to the danger that they pose to the public.
Turning to burglary, I return to the record of the courts. The average sentence on a third conviction for burglary is 18.9 months in the Crown Court and four months in a magistrates' court. If an offender receives a custodial sentence at all in a magistrates' court, the three-year minimum (that is, not less than three years) will therefore represent a step change, and we intend that it should.
§ Lord Ackner
I intervene only to correct the noble Baroness. The fact that, at the end of a determinate sentence, a person who is thought still to pose a risk has to be released has not been overlooked by the judiciary at all. We have said in terms that there is a lacuna. We have respectfully drawn the Home Secretary's attention to the fact that his predecessor, some 25 years ago, recognised this and produced a report which provided a remedy; namely, a reviewable sentence. In a recent debate I said that that was preferable to the false label of life imprisonment—because such persons are not intended, except in a tiny percentage of cases, to stay in prison all their life—and that it should apply to the first time offender; it need not apply to a second time offender.
I also drew attention to the point that if this were described properly as a reviewable sentence, the danger referred to on many occasions with the false label of the life sentence—of the victim being done in, dispatched, killed in order to avoid detection and then life imprisonment—would not arise. The suggestion that we have overlooked this position is, with great respect, totally unmade-out. Why has not the Home Secretary taken advantage of the wisdom of his predecessor contained in the report to which I referred and which has been gathering dust on the shelves of the Home Office?
§ Baroness Blatch
The noble and learned Lord makes an interesting point. I can tell him that many hours were given over to consideration of that option. In many respects, the proposal in Clause 1 is not so different—there is a significant difference to which I shall turn in a moment—in the way that a reviewable sentence would work and the way the automatic life sentence would work.
In the proposals set out in Clause 1 the person would receive an automatic life sentence; the tariff to be served would be set in open court by the judge, taking into account all the circumstances surrounding the case. At least at that point the person serving the sentence would know what the tariff was and would know that at the end of that period, if he or she did not pose a risk, they would be released subject to the agreement of the Parole Board; but if they continued to pose a risk, the sentence could be continued. The significant difference lies in the words, "beyond 368 release". Beyond release, such people remain life prisoners. If they continue to display the kind of behaviour which gave rise to the offence in the first place, there is a facility for recall. We believe that the facility for recall for violent offenders is very real.
Sadly, we read all too often in our newspapers of cases where someone who has automatically been released from prison goes straight out and commits another violent crime. We wish to put a measure on the statute book that addresses the same lacuna as those to which the noble and learned Lord referred, but at least it has two important safeguards for the community. One is that the person is released only on the basis of a proper assessment of risk. The second is that he can be recalled if he repeats or starts to display the violent behaviour and can be taken into custody again.
§ Lord Ackner
As one would expect, both those safeguards were featured in Lord Butler's carefully drawn report: the fact that the release could only be allowed after an expert view that the person was no longer a danger; and that release would be on the most stringent terms with regard to recall and other such matters. How one can advise honesty in sentencing with a false label we must explore further.
§ Baroness Blatch
I must come back on that because there is no transparency about the noble and learned Lord's proposition. At least in the case of the second offence, the person knows immediately that he will receive a life sentence. The reviewable life sentence does not apply particularly to the first, second, third or fourth offence, it would be in the judgment of the court whether it should be applied. The offender would know that. He would also know the period to be served, because it would be set by the trial judge in court on the day. He would also know that his release depended upon the risk assessment, which would have to be approved by the Parole Board. He would also know that his release for life would be conditional upon his not repeating that behaviour.
§ Lord McIntosh of Haringey
I wish to say something to the Committee about what I propose to do during the rest of the Bill. I do not propose to personalise issues as the Minister has just done. I do not propose to ask her whether she will sleep easily in her bed in comparison with whether a victim will sleep easily in his bed. I do not believe that that kind of comment is appropriate for this Chamber and it is a pity that it was made.
The amendments are not about longer sentences nor about determinate sentences. They are about triggering offences for mandatory minimum sentences. Much of the interesting and useful debate that has taken place between the Minister and the noble and learned Lord, Lord Ackner, has concerned the Butler Report and reviewable sentences. It had nothing to do with the amendments. I am sorry, because I very much agreed with the noble and learned Lord and I regret that I have not paid enough attention to reviewable sentences in the amendments that I put down to the 369 Bill. Perhaps I shall have to correct that at the Report stage, because it is a valid point which ought to be considered in the context of a crime (sentences) Bill. But that is my fault and I shall have to think again about my position on it.
However, we are not debating longer sentences. The courts have the power to allocate and award as long sentences as they think fit within the existing statutes about maximum sentences. The Minister keeps on mentioning disregarding offences committed at the age of 16 or younger. They are not disregarded, they are convictions; such people have been punished for them. They are not getting away with it, as the Minister said. I wrote it down because it has nothing to do with the argument. Nor has it anything to do with special circumstances. The word "special" does not occur anywhere in the Bill. In resisting the amendments, the Minister is saying that offences committed and convictions which have been awarded to someone under the age of 17 should count towards a mandatory minimum sentence.
The noble Lord, Lord Elton, thought that distance in time had nothing to do with it. The Rehabilitation of Offenders Act 1974 says that it does have something to do with it. We shall come to consider spent convictions.
§ Lord Elton
Perhaps I may intervene. I believe I am right in saying that the purpose of the Rehabilitation of Offenders Act is to apply not to the delivery of justice but to obtaining a job. When someone comes into court, I do not believe that that protection exists.
§ Lord McIntosh of Haringey
We shall come to consider amendments which the noble Lord, Lord Carlisle, has tabled about the Rehabilitation of Offenders Act and we shall see whether it comes within the scope of the Bill. I believe that it does and most of us would feel that an offence committed by someone under the age of 17 is rather different in kind from an offence committed as an adult. It is not that he should not be punished; there is nothing in the amendments that suggests that he should not be punished. It is that it should not necessarily count towards a mandatory minimum sentence.
I repeat that this is not about longer sentences or determinate sentences. It is about the provision which already exists in sentencing practice that offences committed by juveniles are treated differently from offences committed by adults. The Home Secretary says—and we agree with him—that professional burglars and professional drug dealers should be treated harshly. It must be rare for professional burglars and professional drug dealers to be under the age of 17. I am not saying that it is impossible, but it must be rare. Under those circumstances, I should have thought it reasonable that we should make this minor exception to the provisions of the Bill. I shall test the opinion of the Committee on Amendment No. 2.
§ 6.15 p.m.
§ On Question, Whether the said amendment (No. 2) shall he agreed to?
§ Their Lordships divided: Contents, 134; Not-Contents, 147.372
|Division No. 2|
|Ackner, L.||Hylton-Foster, B.|
|Acton, L.||Irvine of Lairg, L.|
|Alderdice, L.||Jay of Paddington, B.|
|Archer of Sandwell, L.||Jeger, B.|
|Ashley of Stoke, L.||Jenkins of Putney, L.|
|Avebury, L.||Judd, L.|
|Beaumont of Whitley, L.||Kirkwood, L.|
|Berkeley, L.||Lane, L.|
|Bingham of Cornhill, L.||Lester of Herne Hill, L.|
|Birmingham, Bp.||Longford, E.|
|Borrie, L.||Lovell-Davis, L.|
|Brightman, L.||Lowry, L.|
|Brooks of Tremorfa, L.||Macaulay of Bragar, L.|
|Bruce of Donington, L.||McIntosh of Haringey, L.|
|Callaghan of Cardiff, L.||McNair, L.|
|Calverley, L.||McNally, L.|
|Carlisle, E.||Mallalieu, B.|
|Carmichael of Kelvingrove, L.||Mar and Kellie, E.|
|Carter, L.||Masham of Ilton, B.|
|Castle of Blackburn, B.||Merlyn-Rees, L.|
|Chorley, L.||Meston, L.|
|Clancarty, E.||Molloy, L.|
|Cledwyn of Penrhos, L.||Monckton of Brenchley, V.|
|Clinton-Davis, L.||Monkswell, L.|
|Colville of Culross, V.||Monson, L.|
|Currie of Marylebone, L.||Morris of Castle Morris, L.|
|Dahrendorf, L.||Murray of Epping Forest, L.|
|Darcy (de Knayth), B.||Nicol, B.|
|Davies, L.||Norton, L.|
|Dean of Beswick, L.||Peston, L.|
|Desai, L.||Ponsonby of Shulbrede, L.|
|Diamond, L.||Prys-Davies, L.|
|Donaldson of Kingsbridge, L.||Ramsay of Cartvale, B.|
|Donaldson of Lymington, L.||Rea, L.|
|Dormand of Easington, L.||Redesdale, L.|
|Dubs, L.||Richard, L.|
|Eatwell, L.||Ritchie of Dundee, L.|
|Elis-Thomas, L.||Robson of Kiddington, B.|
|Falkland, V.||Rochester, L.|
|Farrington of Ribbleton, B.||Russell, E.|
|Fisher of Rednal, B.||Sandwich, E.|
|Fitt, L.||Sefton of Garston, L.|
|Geraint, L.||Serota, B.|
|Graham of Edmonton, L. [Teller.]||Shannon, E.|
|Hamwee, B.||Shepherd, L.|
|Hankey, L.||Simon, V.|
|Hanworth, V.||Simon of Glaisdale, L.|
|Harris of Greenwich, L.||Smith of Gilmorehill, B.|
|Haskel, L.||Stoddart of Swindon, L.|
|Hayman, B.||Strabolgi, L.|
|Henderson of Brompton, L.||Symons of Vernham Dean, B.|
|Hereford, Bp.||Taylor of Gosforth, L.|
|Hilton of Eggardon, B.||Tenby, V.|
|Hoffmann, L.||Thomas of Gresford, L. [Teller.]|
|Hollick, L.||Thomas of Walliswood, B.|
|Hollis of Heigham, B.||Thomson of Monifieth, L.|
|Holme of Cheltenham, L.||Thurso, V.|
|Hooson, L.||Tordoff, L.|
|Hope of Craighead, L.||Turner of Camden, B.|
|Howell, L.||Wallace of Coslany, L.|
|Howie of Troon, L.||Walpole, L.|
|Hughes, L.||Warnock, B.|
|Hutchinson of Lullington, L.||Wedderburn of Charlton, L.|
|Hylton, L.||White, B.|
|Wilberforce, L.||Williams of Mostyn, L.|
|Williams of Crosby, B.||Winchilsea and Nottingham, E.|
|Williams of Elvel, L.||Young of Dartington, L.|
|Addison, V.||Jenkin of Roding, L.|
|Ailsa, M.||Kenilworth, L.|
|Allenby of Megiddo, V.||Kenyon, L.|
|Anelay of St. Johns, B.||Kimball, L.|
|Annaly, L.||Knutsford, V.|
|Archer of Weston-Super-Mare, L.||Laing of Dunphail, L.|
|Ashbourne, L.||Lane of Horsell, L.|
|Astor of Hever, L.||Lauderdale, E.|
|Attlee, E.||Lawson of Blaby, L.|
|Balfour, E.||Leigh, L.|
|Banbury of Southam, L.||Lindsay, E.|
|Barber of Tewkesbury, L.||Liverpool, E.|
|Bearsted, V.||Long, V.|
|Beaverbrook, L.||Lucas, L.|
|Berners, B.||Lucas of Chilworth, L.|
|Bethell, L.||Luke, L.|
|Biddulph, L.||McColl of Dulwich, L.|
|Blaker, L.||McConnell, L.|
|Blatch, B.||Mackay of Ardbrecknish, L.|
|Bowness, L.||Mackay of Clashfern, L. [Lord Chancellor.]|
|Brabazon of Tara, L.|
|Bradford, E.||Mackay of Drumadoon, L.|
|Burnham, L.||Macleod of Borve, B.|
|Butterfield, L.||Marlesford, L.|
|Byford, B.||Merrivale, L.|
|Cadman, L.||Mersey, V.|
|Campbell of Croy, L.||Miller of Hendon, B.|
|Carnock, L.||Milverton, L.|
|Chadlington, L.||Monk Bretton, L.|
|Chalker of Wallasey, B.||Mottistone, L.|
|Chelmsford, V.||Mowbray and Stourton, L.|
|Chesham, L. [Teller.]||Moyne, L.|
|Clanwilliam, E.||Munster, E.|
|Coleraine, L.||Murton of Lindisfarne, L.|
|Coleridge, L.||Norrie, L.|
|Colwyn, L.||Northesk, E.|
|Courtown, E.||Oxfuird, V.|
|Cranborne, V. [Lord Privy Seal.]||Pearson of Rannoch, L.|
|Crickhowell, L.||Peel, E.|
|Cumberlege, B.||Pilkington of Oxenford, L.|
|Denham, L.||Plumb, L.|
|Denton of Wakefield, B.||Rankeillour, L.|
|Derwent, L.||Rawlings, B.|
|Dilhorne, V.||Rees, L.|
|Dixon-Smith, L.||Renton, L.|
|Dudley, E.||Renwick, L.|
|Ellenborough, L.||Rodney, L.|
|Elles, B.||Rowallan, L.|
|Elton, L.||Saatchi, L.|
|Erroll, E.||St. Davids, V.|
|Fairhaven, L.||Savile, L.|
|Feldman, L.||Seccombe, B.|
|Ferrers, E.||Sheppard of Didgemere, L.|
|Fraser of Carmyllie, L.||Soulsby of Swaffham Prior, L.|
|Gisborough, L.||Stanley of Alderley, L.|
|Gladwyn, L.||Stewartby, L.|
|Goschen, V.||Strange, B.|
|Harding of Petherton, L.||Strathcarron, L.|
|Harlech, L.||Strathclyde, L. [Teller.]|
|Harris of Peckham, L.||Strathcona and Mount Royal, L.|
|Henley, L.||Sudeley, L.|
|Hogg, B.||Swinton, E.|
|Holderness, L.||Taylor of Warwick, L.|
|HolmPatrick, L.||Teviot, L.|
|Home, E.||Thomas of Gwydir, L.|
|Hood, V.||Trumpington, B.|
|Howe, E.||Ullswater, V.|
|Inchcape, E.||Vivian, L.|
|Inglewood, L.||Wakeham, L.|
|Jeffreys, L.||Westbury, L.|
|Wharton, B.||Wolfson, L.|
|Whitelaw, V.||Wyatt of Weeford, L.|
|Wilcox, B.||Wynford, L.|
|Wise, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 6.26 p.m.
§ The Deputy Chairman of Committees (Baroness Serota)
In calling the next amendment, I must point out to the Committee that, if the amendment is agreed to, I cannot call Amendment No. 4.
Lord Carlisle of Bucklow had given notice of his intention to move Amendment No. 3:
Page 1, line 17, leave out from ("unless") to end of line 18 and insert ("it would be in the interests of justice to impose another sentence.").
§ The noble Lord said: In view of the fact that there is to be a debate on whether the clause shall stand part, I shall not move the amendment at this stage, so as to have the opportunity to reflect on what the Minister may say in that debate.
§ [Amendment No. 3 not moved.]
Lord McIntosh of Haringey moved Amendment No. 4:
Page 1, line 17, at end insert ("relating to either of the offences or to the offender").
§ The noble Lord said: This amendment was spoken to with Amendment No. 1. I beg to move.
§ On Question, amendment agreed to.
Lord Williams of Mostyn moved Amendment No. 5:
Page 1, line 18, at end insert ("or, where the offence is an offence under section 18 of the Offences Against the Person Act 1861, the court is of the opinion that it would be in the interests of justice to impose another sentence").
§ The noble Lord said: This amendment relates simply to the definition of the offence under Section 18 of the Offences against the Person Act 1861. As is known, the offence is one of the triggering offences in Clause 1; that is to say, a conviction in respect of Section 18 "wounding", if it is the second offence of the wide range of offences contained in Clause 1, requires the court to impose a mandatory sentence of life imprisonment.
§ It seems to us that wounding under Section 18 is of such a variable nature that it ought not to be a triggering mandatory offence. Section 18 relates not only to wounding but also to causing grievous bodily harm. I shall concentrate my brief remarks on the question of wounding.
§ As is well known, in law a "wound" simply means the breaking of the skin. So it can be a very trivial physical consequence indeed. That is quite different from grievous bodily harm, which is, most judges direct juries, some really serious physical injury. A wound is in a different category.373
As drafted, the amendment refers to Clause 1 (5)(d):
wounding, or causing grievous bodily harm, with intent".
§ But for understandable reasons, the intent is not there specified. According to the 1861 Act, the intent may be the intention to cause grievous bodily harm, but it may be simply resisting or preventing the lawful apprehension or detainment of any person. So one can quite easily have the following circumstances: a youngish man may have had sexual intercourse with a girl who is almost 13 years of age, which is one triggering offence. Many years later, he may throw a stone at a British Transport policeman on a train because he does not want his friend to be arrested. The stone breaks the skin—that is wounding—and the intent is quite plainly there because he shouted out—I remove the expletives—"Leave my friend alone".
§ One of the vices of this type of legislation is that one has a ragbag of triggering offences. I move the amendment to draw the Committee's attention to that characteristic of the catalogue of offences, some of which are serious indeed and some of which, as in the example I gave, are not.
§ On a number of occasions the Minister has said—I join her, as I made perfectly plain when we had our extensive discussion on Second Reading—that serious crime needs to be put down with serious sentences. One does not achieve that desired consequence by including offences which may be as trivial as the one that I described. I beg to move.
§ 6.30 p.m.
§ Lord Carlisle of Bucklow
I support the amendment moved by the noble Lord, Lord Williams of Mostyn, partly because it means that I shall not have to move my own amendment with a similar intention which comes later on the Marshalled List. I appreciate that Clause 1 is different to Clauses 2 and 3. While it contains a mandatory provision, the aim of that provision is different to the aims of the provisions in Clauses 2 and 3. It seeks to deal with the future supervision and control of the offender rather than the length of sentence he serves. For that purpose therefore it is different and the arguments in its favour are in many ways much stronger.
It does not benefit the clause to include Section 18 of the Offences Against the Person Act, for the reason put forward by the noble Lord, Lord Williams of Mostyn. That is, as one knows from experience, such a wide offence that one will come across cases which could not possibly require or need a life sentence being caught by it. The clause should be limited to offences such as rape, attempted rape and sexual offences where I accept there is sound need for such a measure.
§ Earl Russell
In attempting to illustrate the principle outlined by the noble Lord, Lord Williams of Mostyn, it is not my intention to say anything which may in any way injure the privileges of another place. I speak of an occasion after the Bill's Second Reading. I had had lunch with a guest in Strangers. I was ushering out the guest, who was on crutches, and attempting to hold open the door for her when a Member of another place came 374 through in a great hurry. I will not speculate on whether or not there was any mens rea, both for reasons of privilege and because I genuinely do not know. But the door swung back on my hand and shed blood. My noble friend Lord Meston inspected my hand and said that, in his opinion, the injury would come within the meaning of Section 18.
It would be an absolute travesty of the intentions of Parliament if the Member of another place involved should have committed a triggering offence for a mandatory sentence under this Bill. The Minister shakes her head; I am glad to see it. But I shall listen with great interest to her explanation as to why that would not be a triggering offence. It is a familiar maxim that hard cases make bad law; but it is also true that hard law makes bad cases and this would have been one of them.
§ Lord Williams of Mostyn
Bad examples make bad cases. It was a wound but there was no intent. The Minister was about to say that and I thought I would help.
We must bear in mind that wounding can involve a mere scratch that breaks the skin; it can also involve maiming a person for life. If it is a mere scratch of the kind mentioned by the noble Lord, Lord Williams of Mostyn, that would come under "exceptional circumstances". If not, then I do not know what "exceptional circumstances" can be interpreted to mean.
§ Baroness Seccombe
As a magistrate my understanding is that if it is a minor wound it would be a Section 47 offence. There is also Section 20 before one reaches the serious matter of Section 18. That is very much the guidance that we are given.
§ Baroness Anelay of St. Johns
I will not rehearse again the speech I made at Second Reading with regard to the variable aspects of Section 18 cases. Whatever offence one refers to, it is easy to pick out the exceptions.
My noble friend Lady Seccombe said—I agree with her—that a case such as the one referred to by the noble Earl, Lord Russell, would not be a Section 18 offence; it would be properly charged as assault occasioning actual bodily harm under Section 47 or perhaps be a matter for no charge at all. If one has faith in the Crown Prosecution Service properly to bring a charge, then one would hope that it would reserve Section 18 for those cases which deserve it.
As I have said before, we are talking about an injury caused with intent. Evidence must be adduced which could found a conviction for murder. The situation must be taken that seriously when the CPS brings such a case. In this context we are talking of people facing a second conviction for a serious matter. Surely the public should be protected from those who are convicted a second time of such a serious matter until an assessment is made as to whether or not they may be released back into the public domain. I hope that the amendment fails.
§ Lord Thomas of Gresford
This is one of the instances where plea bargaining would take place. 375 Section 18 offences can be so variable, as the noble Baroness said, that they require the same intent as that for murder yet can be just a breaking of the skin. It is in precisely those circumstances, where a person is likely to be facing life imprisonment, that, first, the CPS would be unlikely to bring the charge except where the victim was near death. Secondly, if defence counsel had his wits about him he would be telling the jury that a conviction in that case meant life imprisonment for his client. Thirdly, it is the sort of case where the defendant would plead guilty to Section 20 in order to avoid a life sentence whatever the state of the evidence against him. He may have a good case, but rather than face a Section 18 conviction which results in a life sentence he would plead guilty to the lesser offence. That is exactly the problem that mandatory sentences produce.
§ Lord Ackner
A further matter must be borne in mind. The Criminal Justice Act 1991 contained some sensible clauses; it also contained some foolish ones which placed a judge in a strait-jacket when sentencing and forbade him from taking into account previous convictions, outstanding offences, cases to be taken into consideration, reaction to previous non-custodial sentences and so forth. It produced occasions in which the court had to say, "I should send you to prison because I have been told of your previous record; I must ignore it. I should send you to prison because I know that there are a number of outstanding offences against you. I should send you to prison because you have asked me to take into consideration further offences"—and so forth—"but I cannot do so. Parliament has obliged me to impose the totally unrealistic sentence of community service". As a result, the Government were humiliated into tabling amendments in the 1993 Act.
Exactly the same situation can arise here. We have the heavy sentence of imprisonment for life. We were told, in the debate on the White Paper introduced as a result of the initiative of my noble and learned friend Lord Taylor of Gosforth—I am delighted to see him with us today—by the Lord Chancellor:The Government believe that the public and offenders should know that a court's sentence means what it says".—[Official Report, 23/5/96; col. 1072.]The noble Lord, Lord McIntosh, said that the Labour Party believes that the courts should spell out the reality of the sentence at the time of passing it. We can take the example of a boy of 16 who indulges in sexual experimentation with a girl of 12. That is a qualifying offence. Then, 30 years later, he is involved in a fight outside a public house and pushes not a broken glass but a glass into the face of someone who has severely provoked him. The judge will say something of this kind, I hope, because I think the judiciary is becoming a little weary of being castigated quite unfairly by the media. "Parliament has required me, John Smith, to impose upon you a sentence of life imprisonment. Parliament has also required me, and I would do so in any event, to spell out the reality of the sentence at the time of passing it. I do so now. Parliament has obliged me to impose upon you a sentence of life. Now the reality. Life does not mean life. Life in this case is to 376 be properly described as follows. I am obliged to specify what is known as the tariff, which is the length of time which I think you should serve in prison by way of punishment, by way of retribution and deterrence. In all the circumstances, I think, having regard to the mitigation, that 18 months is the right period. So that you are under no misapprehension, life means 18 months. On the other hand, I should go on to tell you that at the expiration of the 18 months' sentence you will be up before a parole board which will have to be satisfied that you do not pose a danger to society. I cannot tell you what the parole board will decide, but I can, and I think should, say this. I have heard not the slightest piece of evidence that you represent a danger to society. I have heard evidence to the contrary. In all the circumstances, then, I state what is the tariff, and I have already been in touch with the chairman of the parole board and arranged with it that your case is considered 18 months hence". That makes a farce of the imprisonment under these terms.
I am much supported by the observations made in the Second Reading debate by the noble Lord, Lord Williams:The sentencing regime for which we contend should, as many noble Lords have said, be open and transparent; but it is nonsensical to invite a High Court judge to say, 'I am sentencing you to life imprisonment. By the way, you can expect to serve 18 months'. That is a perversion of the system. It will bring the whole system into disrepute. If it brings it into disrepute on that basis, it will have brought it rightly into disrepute on that basis".—[Official Report, 27/1/97: col. 1063.]One has to be very careful in regard to the qualifying offences. That has been recognised in an amendment soon to be discussed. The same applies to manslaughter where there need be no intent to do any personal injury. But if personal injury is done unlawfully, and the person dies, that is manslaughter. I support the wisdom of this amendment.
§ 6.45 p.m.
Perhaps I may say this to the noble Earl, Lord Russell. I do not mean to be frivolous about the point I want to make, but someone pushing open a door and catching someone's finger would not only not be a Section 18 offence, which is with intent—the noble Lord, Lord Williams of Mostyn, is right—but I would find it preposterous that anyone—a policeman or Crown prosecutor—would prosecute such a case as a crime. I find that such an absurd example for the purpose of speaking to this amendment that I am at a loss to take it seriously.
The noble Lord, Lord Thomas of Gresford, was scathing about the way in which I have been accused of mistrusting the judiciary. I am not sure that the Crown Prosecution Service will be too happy with what he has been suggesting. He was almost suggesting that it could act improperly to circumvent the will of Parliament. That is really what the noble Lord was saying.
The maximum penalty for offences under Section 18 is already life imprisonment and in my view it would be quite inappropriate for such offences not to attract the automatic life sentence. Section 18 is used to prosecute the most appalling assaults committed by dangerous and 377 violent criminals. It requires proof of intent, which typically means that the offender went out equipped with a weapon which he fully intended to use. It is exactly those kinds of people the public need protection from and against whom they will be better protected by the automatic life sentence. Criminals who persist in committing violent and premeditated assaults need to know that they will face a life sentence.
We do not want very minor assaults to attract the automatic life sentence, and that is not what the Bill provides. For lesser offences against the person, lesser charges can be brought. My noble friends Lady Anelay and Lady Seccombe made the point very well. Section 20 of the 1861 Act, wounding without intent to do grievous bodily harm, or Section 47, as my noble friend Lady Seccombe said, assault occasioning actual bodily harm, can also be used. The maximum penalty on conviction under Section 20 is five years. Furthermore, the clause already provides a suitable means of imposing a sentence other than life imprisonment where the life sentence would be wholly inappropriate. So the court may decline to impose a life sentence where there are exceptional circumstances. Now that that has disappeared—except that at this moment it has not: we are not sure now what will happen about Amendment No. 3, which was to have removed "exceptional circumstances" from Clause 1.
It will be for the courts themselves to determine the interpretations of "exceptional circumstances". But it is perfectly possible that they would consider, for example, that two very minor examples of qualifying offences committed in the face of provocation would amount to exceptional circumstances justifying setting aside the automatic life sentence.
We expect such circumstances would be very unusual indeed. We must not lose sight of the fact that those convicted of offences under Section 18 and facing an automatic life sentence will tend to be those who have committed very violent attacks with intent to do grievous bodily harm and, what is more, have shown a pattern of serious offending.
Wounding or causing grievous bodily harm with intent is always a serious crime and it is right that the automatic life sentence provisions should extend to them, except, of course, where there are exceptional circumstances. The noble Lord, Lord Thomas of Gresford, made an extraordinary point. He suggested that the defence would tell the jury about previous convictions. I hardly think it likely that the defence would tell the jury that the accused had previous convictions for similar offences. How would that assist in achieving an acquittal, which was the suggestion? If it did—
§ Baroness Blatch
Perhaps I may finish the point. I am addressing it to the noble Lord because it is the point he raised. I shall finish the point and then the noble Lord can come back on it. If it did, I am not by any means sure that the jury would think the accused 378 deserving of sympathetic treatment by virtue of the fact that he had admitted that there were previous similar offences, and particularly if it emerged that at the previous trial the defendant had disputed his guilt, as he does in the current trial under the example given by the noble Lord.
§ Lord Thomas of Gresford
Perhaps I may answer the noble Baroness. Circumstances arise in different cases when of course the previous convictions of the defendant are disclosed. It may be to the advantage of the defendant to do so. One such circumstance is that referred to by the noble and learned Lord, Lord Ackner. I would not hesitate to tell a jury in the circumstances outlined by the noble and learned Lord that many, many years ago an offence had been committed and that the effect of its verdict would be that the defendant would go to prison on a life imprisonment sentence.
Perhaps I may add one other point. I learnt my prosecution ethics at the feet of the noble Lord, Lord Hooson. I had to get down a very long way to do it, but I did. Thirty years ago he had a very straightforward ethic for prosecuting, which was to be tough but fair. Those who prosecute are human beings and they would reduce a charge, as I would, if I thought that injustice would follow if I did not do so. I would not fail to do that because of what some long-gone Home Secretary or government had decided.
§ Baroness Blatch
I hope the noble Lord will also include the caveat that it would be tough and fair, but consistent with the law of the land.
§ Lord Carlisle of Bucklow
My noble friend said in the course of her comments that the normal wounding with intent case usually involved a man who went out armed intending to do injury. With the greatest respect to my noble friend, I do not believe that that is the normal case at all. On the Criminal Injuries Compensation Board we must see more of these cases than any High Court judge or anyone else. Invariably these woundings occur not with people setting out armed intending to cause injury, but as a result of a flare-up in a public house, usually on a Friday night, when somebody bashes another person with a glass. To my knowledge, both as a barrister and chairman of the Criminal Injuries Compensation Board, that is a far more common example than someone going out armed.
We must face the realities of what actually happens. Whereas that person clearly needs severe punishment for an individual offence, is there any benefit to be gained by giving that person a life sentence and then saying, "Incidentally, I mean it to be only four years"? I do not think that there is any benefit. I suggest that this Bill would be better if we accepted that that kind of case does not fit in easily with the grave matters of rape, attempted rape and attempted murder which occur in this clause.
§ Baroness Blatch
There is such a gulf between myself as the Minister with responsibility for this Bill and my noble friend. I have to say to him that if 379 somebody takes a glass in a pub brawl and causes injury to another person with intent deliberately to do so, that person should jolly well be caught by this Bill.
§ The Earl of Onslow
I had not intended to intervene in this debate except that I would like to tell Members of the Committee this personal story. A man I know well had one, if not two, previous convictions for thumping people. He got involved in a punch-up in Guildford. He ended up by hitting someone who had hit him 20 minutes before with a cricket stump. He faced very serious charges. He came to see me and I gave him the following advice which, in the end, I believe turned out to be correct. I said to him, "All you must do is to go into overtime grovel, plead guilty, co-operate with the police and promise that you will never do it again and say that you are really, genuinely sorry". That is exactly what the man did. He was sentenced to community service. I do not believe for one moment that sentencing that man—who is hardworking, intelligent, has just got married and has contributed to the community—to prison would have done any good whatsoever, let alone sentencing him to life imprisonment. It is in relation to that kind of specific case that I have grave doubts about the moral correctness of mandatory sentences.
§ Baroness Blatch
The point made by my noble friend is an interesting one. The particular type of crime that my noble friend spoke about, I take it, was completely out of character for that man. My noble friend has said that he was not a violent person.
§ The Earl of Onslow
I am saying exactly the opposite. It was at least his second offence and that is the point I am making. He had got to the stage of growing up. Had he been sent to prison it would have ruined his life, cost the taxpayer a lot of money and done no good to the community at all. Of course, if it ever happens again he will go down for a very long time, and justifiably so. I genuinely believe that this man has been saved by not going to prison. Under this Act he would have been forced to plead not guilty and that would have been a bad thing.
§ Earl Russell
Perhaps I may offer a footnote to the exchange between the noble Baroness and my noble friend Lord Thomas of Gresford. The noble Baroness thought it extremely unlikely that a jury might be moved to acquit by the disclosure that a person had previous convictions and therefore might face a mandatory sentence. I know that the best guide to this is what happened when we last had mandatory sentences before the penal reforms of the 1820s. In those cases, as I pointed out at Second Reading, juries very frequently did perversely acquit. The noble Baroness has talked quite rightly about public opinion on crime. What she has not taken into account is that the public's attitude to crime in general is not always identical to its attitude towards an individual, live criminal about whom it has heard evidence in detail. That point is vital.
§ The Earl of Mar and Kellie
Perhaps I may make a second attempt to pose the question. Perhaps I was the 380 only one who did not understand. I make the observation that in the case of a person who commits an offence which, at the second or third instance, could incur a mandatory sentence, the records of the court hearing will have to be preserved for the rest of that person's life. Therefore, the circumstances of the first and second offence will be known to the court and taken into account. Am I right in believing that the records of such trials are normally destroyed after three years?
§ Lord Williams of Mostyn
When we discussed the Police Bill and an amendment had been successfully carried, the Minister described the then state of the Bill as a "dog's dinner". I have a dog myself and I do not believe that she would look twice at the sort of dinner that we are being presented with at the moment.
On a number of occasions the Minister referred—and I sympathise because she is in the unhappy position in which many of us, as practising lawyers, have found ourselves in the past of trying to sustain an unarguable case—to those who commit a series of similar offences. That is not the scheme of the Bill. There is nothing similar about having sex with a girl who is nearly 13 years of age and murder. There is nothing similar at all. So let us put the shibboleth of a long series of similar offences to one side. There is a case for putting that in context, but it is not the context of this Bill.
I endorse what the noble Lord, Lord Carlisle, said about the general run of Section 18 grievous bodily harm cases. It is very rare indeed for practitioners to come across someone who has deliberately gone out with a weapon. Incidentally, as we are dealing with people who go out deliberately with weapons, if one looks at Clause 1, as I did in the long wastes of our earlier debate when the noble Lord, Lord McIntosh of Haringey, was not speaking—this is the party of brotherly love—robbery, which is a curse on society, is only a triggering offence if it is committed when the robber is in possession of a firearm or imitation firearm. Go out dressed in a balaclava and, with a machete or a chainsaw, terrorise the neighbourhood and your victim—and that is not a triggering offence.
There is no coherent thought behind the Bill. The examples given cannot be disputed. The noble Baroness, Lady Anelay, said that it is easy to pick out exceptions. Of course it is; that is why we have judges to deal with exceptional, differing circumstances which vary so enormously across the spectrum of human activity.
It is said that the Crown Prosecution Service has been impugned by the noble Lord, Lord Thomas of Gresford. The noble Lord has done no such thing; he has simply pointed out the fact that, things being what they are, the Crown Prosecution Service charges down—not least for the reason offered by the noble Earl, Lord Onslow: so that it will get a plea of guilty. The example given by the noble Earl is a classic illustration of what is wrong with the Bill. My amendment is a modest—I would say that it is a drowning and despairing—attempt to try to improve what is virtually incapable of being saved in its 381 present form. As numbers are a bit on the thin side—although we have virtue on our side—I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
The Earl of Courtown
My Lords, I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before 8.5 p.m.
Moved accordingly, and, on Question, Motion agreed to.