Crime (Sentences) Bill

HL Deb 13 February 1997 vol 578 cc398-446

House again in Committee on Clause 1.

Lord Williams of Mostyn moved Amendment No. 6: Page 1, line 18, at end insert— ("( ) The court shall, unless otherwise agreed in writing by the offender or his legal representative, obtain and consider a pre-sentence report before forming an opinion as to the existence or otherwise of exceptional circumstances.").

The noble Lord said: In moving Amendment No. 6 standing in my name and in the name of my noble friend Lord McIntosh of Haringey, for the convenience of the Committee I speak also to Amendments Nos. 19 and 27.

The amendment is straightforward. It is utterly meritorious and doubtless will secure immediate acquiescence from the Government. It deals with the question of exceptional circumstances and upon what basis a sentencing judge should proceed.

Each amendment relates to the introduction on a mandatory basis—if I may use the word "mandatory" without intruding into private grief this evening—of obtaining and considering a pre-sentence report. It is perfectly straightforward. I do not think that anyone present who sentenced an offender in difficult circumstances did not feel the need in most cases for a pre-sentence report. That is the principle underlying the amendments.

I say "in most cases" because that explains the presence of the caveat: that if the offender being legally represented, or his legal representative, agrees in writing that a pre-sentence report in some cases may simply not be necessary, that is a saver to the general rule. There are occasions when an offender wishes to know as soon possible what the sentence will be. The delay of some weeks to obtain a pre-sentence report is unnecessary provided that the defendant is legally represented and advised, and the consent is given in writing. We suggest that that is a suitable safeguard to a defendant facing a mandatory sentence. That is the principle underlying the amendments. I beg to move.

Lord Carlisle of Bucklow

I question the purpose of the amendment. It seems to be rather unnecessary. As I understand it, the Bill states that the court shall give a life sentence. It is then required to give the tariff order unless it considers that there are exceptional circumstances. The pre-sentence reports with which the noble Lord, Lord Williams of Mostyn, and I deal relate to character and various other matters. I cannot see that such a report is likely to be necessary on the issue of whether or not there are exceptional circumstances.

The provision would probably mean that a report would be asked for in every case and the poor defendant would have to wait another week or two deciding what his fate would be. I should have thought, frankly, that the amendment was unnecessary.

Baroness Blatch

The amendment moved by the noble Lord, Lord Williams of Mostyn, would require a court to obtain a pre-sentence report in every case falling to be sentenced under Clauses 1, 2 and 3 of the Bill unless the offender or his legal representative agreed that such a report was unnecessary. I believe that the intended purpose of this requirement is to help the court come to an opinion as to whether there are exceptional circumstances which justify not imposing the mandatory sentences provided for in Clauses 1, 2 and 3 of the Bill.

However, like my noble friend Lord Carlisle, I see no reason at all why a court should not obtain a pre-sentence report when sentencing under Clauses 1, 2 or 3 of the Bill if it judged that it would be helpful to do so. And, there is nothing in the Bill, or in any other legislation, which would prevent the court from doing so. However, I am not persuaded that it is either necessary or desirable to require the courts to obtain a pre-sentence report in every case in order to determine whether there are exceptional circumstances.

Courts are not compelled to obtain a pre-sentence report in any other circumstances. Indeed, there is no requirement for a court to obtain a pre-sentence report to ascertain whether there are exceptional circumstances that justify suspending a prison sentence. I see no reason to take a different approach in respect of Clauses 1, 2 and 3 of the Bill. I find the suggestion odd that a court should be required to seek the agreement of the offender if it decides not to ask for a pre-sentence report.

Pre-sentence reports may provide information which is relevant to the question of whether there are exceptional circumstances which would justify setting aside the mandatory penalties. But that is not their purpose. The purpose of a pre-sentence report, as set out in the 1991 Criminal Justice Act, is to help the courts to decide such matters as: the seriousness of the offence; the risk posed by the offender and the need to protect the public from further offending; and, in respect of certain community penalties, the suitability of the offender for such a penalty. The information is intended to help the court decide whether custody is the appropriate sentence, how long that custodial sentence should be or the appropriate community penalty.

In practice, it is very likely that any exceptional circumstances will anyway become apparent during the course of the trial or hearing. Obtaining a pre-sentence report may, therefore, be of little value to the court or the offender. A requirement on the court to obtain a report in every case may simply cause unnecessary delay in sentencing which would benefit no one, least of all the defendant.

If the court considers that a pre-sentence report is necessary it can obtain a report. If it does not, the court should not, in my view, be compelled against its judgment to obtain one. The court is best placed to make the judgment as to what information it needs and should not have to seek the consent of the offender to the court's decision. I hope the amendment will not be pressed.

8.15 p.m.

Lord Hooson

Before the Minister sits down, I see all the criticisms that can be made in regard to Amendment No. 19. However, it seems to me that Clause 2 illustrates the total dilemma that could confront a judge in the future.

For example, a youth of 18 who sells an Ecstasy tablet at a street corner commits an offence of Class A drug trafficking. Let us suppose that he has two previous offences, one at the age of 16 and one at age 17, but the police say of him that he is not normally a drug trafficker and that those were casual offences—this is the kind of street corner offence that is often committed in Manchester or parts of London by the casual offender.

As I read this clause, if he is caught in the act, the fact that he is from a deprived area and has a difficult background would not qualify, were it to be in a report, as an exceptional circumstance, because such experience would be common to hundreds of thousands of other offenders. Therefore the learned judge would have no option other than to send him for seven years' custody to one of those universities of crime which the Home Secretary seems so keen to endow these days. I merely seek the Minister's help in this regard.

Let us contrast such a case with that of the drug dealer who is eventually discovered, with years of crime behind him, and is convicted, possibly at the same court, on six counts and an indictment and they are merely specimen charges covering a period of years. No mandatory sentence can be conferred on him because he has no previous conviction. In the latter case the judge can do his duty—and, thank goodness, I have great faith that British judges would impose the right kind of sentence on him—but what puzzles the judiciary is how the right and just sentence can be imposed on the youth I first described.

The amendment is an attempt to remedy that situation. I do not believe it is a successful attempt. However, does the Minister agree that the circumstances which I outlined, even though the police might be very anxious to help the young man, could not possibly qualify as "exceptional circumstances"?

Baroness Blatch

I am not a lawyer; that must have been pretty obvious as I have operated from the Dispatch Box. However, my understanding is that the defendant and/or the defendant's legal representative would make jolly sure to place before the court all possible pieces of information that could be put before it both to acquit the client and to mitigate any consideration of the kind of sentence that he might receive.

If the client is before the court for a second qualifying offence under Clause 1 or a third qualifying offence under Clauses 2 and 3, a number of things would happen. Either the defendant himself would make known to the court those circumstances which he hoped would be taken into account in coming to a view as to whether "exceptional circumstances" should apply—although we are talking slightly in a vacuum following the amendment passed earlier—or the legal representative would submit to the court information that he or she believed was pertinent and should be taken into account by the trial judge in coming to that view. Alternatively, there is nothing in the Bill to prevent the judge, if he believes it helpful to have yet another dimension of the defendant's character added to the body of information that he has as a result of hearing the case, simply calling for a pre-sentence report. In cases where enough information has emerged during the course of the trial, why should such a requirement be placed upon the judge when he believes additional information to be otiose?

That is the only difference between us. As the Minister responsible for the Probation Service, I know how helpful pre-sentence reports can be to the court. But, if a judge decides that he does not need such a report, I do not see why he should be required to call for one.

Lord Hooson

The Minister does not quite meet my point. Does she agree that in the theoretical case I outlined there should be a means which would give a judge a discretion with regard to mitigating circumstances? None of the circumstances I outlined seem to me to be "exceptional circumstances". That is what troubles me about this requirement. No distinction is made in this case. The example of a drug offence illustrates the problem that the Government have got themselves into in regard to the mandatory sentence. It does not distinguish in any way between the casual offender and the hard-bitten drug dealer.

Baroness Blatch

Whether we are talking about the Bill as it was earlier this afternoon, or as it is now as a result of the amendment, if an offence is a third, or second, qualifying offence—in other words, the likelihood is that, if "exceptional circumstances" does not apply, or under the new amendment "specific circumstances" does not apply either to the offence or the offender—then the defendant, the defendant's representative and the trial judge will know that the judge has a power under the Bill to consider setting the mandatory sentence aside. Given that, the judge will want all the information that he needs at his fingertips in order to reach a view as to whether the mandatory sentence should be applied, or the mandatory sentence plus whatever sentence he wishes to impose, or whether there is a good case for setting it aside. If he takes the view that it is borderline and that he does not have enough information—that is, there is another aspect of the person's character that can be accessed only by means of a pre-sentence report from a probation officer who has some knowledge of the person—he is entirely free to ask for a pre-sentence report.

The difference between us is whether we should go beyond that and require in every single case, unless there is an agreement that he should not, that a judge, whether he wants it or not, should unnecessarily delay the case by calling for a pre-sentence report.

Lord Thomas of Gresford

Perhaps the Minister does not appreciate—I am sure she does—that the pre-sentence report comes from an independent source. She referred to the defence advocate or an unrepresented defendant putting forward circumstances himself which a judge may take with a pinch of salt. Before the judge reaches the point of giving some form of mandatory sentence such as is proposed in the Bill, it is vital that he have that information unless, as the amendment proposes, it is agreed by counsel for the defendant or the defendant himself that he does not want one. So instead of leaving it to the judge to decide, in effect it is left to the defendant to decide whether he feels that a report on him would be helpful.

Perhaps the noble and learned Lord the Lord Advocate will forgive me if I illustrate the point made by my noble friend Lord Hooson. Last Monday afternoon I appeared in the Chester Crown Court, the court of Sir Robin David, who is an experienced and distinguished judge. As I was waiting for my case to come on, two drugs cases were called, one after the other. The first involved a man who had about 6.5 kilograms of heroin in his car boot when he was stopped on the motorway. That case was adjourned for reports, and I have no doubt that in due course something condign will happen to that person. Chester Crown Court is top of the league for heavy sentencing, and there is likely to be an application to move it elsewhere. The case that followed was of a person who was selling Ecstasy tablets to his friends at a party. The learned judge sentenced the defendant in that case, without a report, to 120 hours' community service. It is a Class A drug; he was trafficking; he pleaded guilty to trafficking. The difference between the two offences is enormous. Yet the same two offences appear as a qualifying offence in the Bill.

With the greatest respect to the ladies and gentlemen in the Box assisting the Minister, it is the lack of practical knowledge of the courts behind these Home Office proposals as embodied in the Bill, the lack of knowledge of how the Crown Courts work, that makes the Bill so bad. We are not speaking, or at least I am not speaking, from on high, condemning from a high position in the judiciary. I speak as a practitioner at the coalface. I know that the Bill will not work.

Baroness Blatch

On the first example that the noble Lord gave, I am surprised that reports needed to be called for—although it had to be a matter for the judge's discretion—as the defendant had two previous convictions from dealing in Class A drugs and as the haul that he was carrying in the car boot was substantial.

In the second case, the noble Lord did not say whether a pre-sentence report had been called for. I suspect that if there was a community service sentence, the likelihood is that a report would have been called for, if only to discuss with the probation service the nature of the community sentence.

For the second time today I am on the side of the judges because I believe that they are people who can be trusted about whether they have a sufficient body of information coming through the trial hearings, with or without the involvement of the probation service, to make a judgment as to whether they need the one last piece of information—the pre-sentence report.

The difference between us is not that the reports are not helpful, nor that pre-sentence reports do not provide illuminating evidence that has an influence on the judge at the time. I simply say that it should be a matter for the judge. Where the judge blatantly, with all the matters that he has had to consider, decides that he does not need a pre-sentence report and believes that he has all the information necessary for him to come to a judgment about the defendant, why should we, in the terms of this amendment, require him unnecessarily to delay proceedings?

Lord Ackner

Is not the answer to the noble Baroness's question that, if you are to impose so serious a sentence as life imprisonment, you should not rely on the judge's hunch as to whether there is some information that could bring the accused inside the class of special circumstances? If you are automatically to impose sentences as horrific as these, then the judge should be provided with all the information which is available and not just the information which he thinks, rightly or wrongly, may still exist. It is as simple as that.

Lord Williams of Mostyn

It is indeed as simple as that. The Minister said that she was on the side of the judges. I hope that that will not be fully printed in Hansard because she will be in subversive company these days.

Baroness Blatch

You said it!

Lord Williams of Mostyn

As the Minister described the nature and function of a pre-sentence report, I became more and more convinced that she was about to accept my amendment because it would deal with such relevant matters as the background of the offender, perhaps the circumstances of the offending and all the basic material that a judge needs.

It is idle to suggest that the stage of the contest in the court at which the prosecution seeks conviction and the defendant seeks acquittal has anything necessarily pertinent to do with the information that the judge needs in the sentencing exercise. As the noble and learned Lord said, if the Bill ever became law, it would impose duties upon judges which they would be able to discharge consonant with their oath only on the fullest possible information. Where is the information to come from?

As the noble Lord, Lord Thomas, pointed out, assertion by the defence advocate is normally taken with at least two buckets of salt. There is always someone who has offered the defendant a job, starting, strangely, next Monday, on paper not headed, not typed and with a signature which is difficult to decipher. No sensible judge pays any attention to that. What he does pay attention to is an independent, informed view from a non-partisan source; that is to say, the person who produces the pre-sentence report.

The Minister said that the judge will want all the information required. Precisely. The noble and learned Lord, Lord Ackner, indicated that without a pre-sentence report, unless one raises one's finger in the air, having first spat on it, one does not know precisely what information may be available. Again the Minister asked a rhetorical question, so nobly I offer the answer. Why should the defendant's consent be required? It is because the defendant is represented and in rare circumstances is advised, after proper legal assistance and advice, that a report will not be needed. That was a commonplace, for example, when a probation order was being considered as an alternative. The judge would ask the defending advocate: "Do you want such-and-such a report or such-and-such other report?". We are dealing with an extremely draconian system which the judges will be obliged loyally to put into effect. The amendment offers them the tools to do the job which the Government seek to impose upon them.

I am on the side of the judges and believe that they ought to have every opportunity to sentence justly. I shall not press the amendment, but the point remains. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendment No. 7 not moved.]

Lord Williams of Mostyn moved Amendment No. 8: Page 1, line 20, at end insert— ("( ) Where a court has made a statement under subsection (3), Part IV of the Criminal Justice Act 1988 shall apply to the sentence which has been imposed by the court.").

The noble Lord said: I am becoming recidivist. In speaking to Amendment No. 8, I wish to speak also to Amendments Nos. 21, 29 and 32.

The amendments are based on the necessity and desire that the public should be properly protected against over-lenient sentences. There are gaps in the ability the present Attorney-General has to maintain and launch appeals to the Court of Appeal (Criminal Division) because of over-lenient sentences. I give one example. It was not very long ago that a fraudster on an enormous scale (many millions of pounds), Roger Levitt, was sentenced by Mr. Justice Laws for gross defalcations running into many millions of pounds to the condign sentence—to use a phrase that I have heard before this evening—of 100 hours community service. There was not a single member of the public who did not regard that as preposterous. We raised in your Lordships' House the question of whether the Attorney intended to appeal to the Court of Appeal (Criminal Division). The answer came back, "No, he has no present power in law to do so." We believe that to be a significant gap.

There may be occasions in the new regime—I stress again, if the Bill ever becomes law—when a judge has come to a conclusion which the Attorney, on sensible reflection, after representations from the Crown Prosecution Service, will conclude has been unduly lenient. Therefore the scheme which is variously described in Amendments Nos. 8, 21, 29 and 32 gives power to the Attorney to launch appeals against over-lenient sentences. Therefore, Amendment No. 8: Where a court has made a statement under subsection (3), Part IV of the Criminal Justice Act 1988 shall apply to the sentence". The relevant section in Part IV of the earlier Act is Section 36, which states that, if the Attorney comes to the conclusion that the sentencing of a person in a proceeding in the Crown Court has been unduly lenient … he may, with the leave of the Court of Appeal, refer the case to them … to reviewing the sentencing". Therefore, Amendment No. 8 is a protection from the public against over-lenient sentencing specifically in the context of this Bill.

I turn quite shortly to Amendment No. 21, which is in the same category: Part IV of the Criminal Justice Act 1988"—

to which I referred— shall apply to any sentence which is imposed by the court … whether or not it is the prescribed minimum sentence".

Again, that is a protection for the public. The same is true for Amendment No. 29.

Amendment No. 32 concerns a wider point to deal with rogues and criminals such as Mr. Levitt, I believe last seen photographed drinking champagne—I dare say it was a toast to absent friends; namely, those with whom he might reasonably have expected to share a cell, but did not do so. The amendment entitles the Secretary of State to broaden that category of offence which the Attorney may use in circumstances in which sentences have been too lenient.

I cannot see any present rational, sustainable objection to this amendment. Therefore I sit down in the happy and confident belief that the Government will accept it. I beg to move.

8.30 p.m.

Lord Carlisle of Bucklow

Having taken part in the debate on Clause 1, which restored the idea of adjusting the power of the court not to impose a mandatory sentence in certain circumstances, in all honesty I must rise to my feet to support the noble Lord's amendment on this occasion. Many Members of the Committee have argued that the right way to approach over-lenient sentences is not to impose mandatory sentences in all circumstances but to give a widened power to the Attorney General to appeal against over-lenient sentences. I understand that to be the purpose of the first three of these amendments.

The Attorney General himself was recently reported in an article in, I believe, The Times as saying what a success the power had been, how it had been used effectively and that in 89 per cent. of the cases that he had taken to the Court of Appeal the sentence had been increased. I have no doubt that it will help in raising the level of sentences, of which the Minister has complained, to a level which she believes the public would consider more acceptable, if the Attorney General had the power to appeal against over-lenient sentences in cases such as burglaries. That would give the Court of Appeal the opportunity to lay down an appropriate sentencing policy and a guideline case.

I hope that the Minister will realise that this is intended to be a constructive amendment, to meet in part the damage which she believes some of us have done—I do not accept that—to the earlier part of the Bill. It is a constructive attempt to deal with over-lenient sentences. I certainly hope that she will take away the amendment and look at it in the context of the amendment on which the Government was defeated earlier this evening.

Lord Monson

As a layman, I am afraid that I did not understand Amendment No. 8 and the consequential amendments to it until the noble Lord, Lord Williams of Mostyn, explained them. Now that he has done so, they seem to me to be quite admirable, not least in that they balance the amendment that was rightly carried earlier this afternoon.

Baroness Blatch

My Lords, I agree that these are constructive amendments. The noble Lord, Lord Williams, wins some and loses some, but I must also explain why we do not need the first three of these amendments.

The amendments are intended to ensure that the Attorney General may refer to the Court of Appeal any case for which sentence is imposed under Clauses 1, 2 or 3 of the Bill if he thinks that the sentence is unduly lenient or if the mandatory penalty has not been imposed. I entirely agree that the Attorney General should be able to refer such cases to the Court of Appeal. In fact, the Bill provides for that. It may be helpful to the Committee if I explain why and how.

The Attorney General's powers to refer cases to the Court of Appeal are set out in Sections 35 and 36 of the Criminal Justice Act 1988. Section 35(3) of the 1988 Act specifies that the Attorney's power applies to any case in which sentence is passed on a person for an offence triable only on indictment. All offences covered by Clause 1 of the Bill are triable only on indictment. Although not all offences covered by Clauses 2 and 3 of the Bill would normally be tried only on indictment, we have expressly provided that this should be so when the offence is to be dealt with under those clauses. Clauses 2(4) and 3(4) specify that an offence dealt with under Clauses 2 or 3 shall be triable only on indictment. The effect of Section 35(3) of the 1988 Act is, therefore, to include all cases dealt with under Clauses 1, 2 or 3 within the scope of the Attorney General's power to refer, whether the sentence imposed is the mandatory minimum sentence or a sentence greater than that.

To make absolutely certain that any case dealt with under these clauses can be referred, we have also amended Section 36(2) of the 1988 Act. That provides that the Attorney may also refer a case if it appears to him that the judge erred in law as to his powers of sentencing. Paragraph 13 of Schedule 4 of the Bill amends this provision to make clear that the Attorney may also refer a case which is dealt with under Clauses 1, 2 or 3 of the Bill and in which the court has used its discretion not to impose the mandatory minimum sentence required by those clauses. So, if, for example, a third time burglar is given a sentence of two years rather than three years, because the court considers that there are exceptional circumstances, the Attorney General may, if he takes a different view, refer the case to the Court of Appeal.

The amendments proposed by the noble Lords, Lord McIntosh and Lord Williams, would achieve the same outcome as that I have described. I hope therefore that, in the light of my explanation, they feel reassured on those points.

Turning to the proposed new clause, Amendment No. 32, which has also been moved by the noble Lord, Lord Williams, this would require the Secretary of State to extend, by order, the Attorney General's powers of reference to include all triable either-way offences. As Members of the Committee will be aware, at present these powers are limited to sentences passed in respect of indictable-only offences, together with certain triable either-way offences which have been specified by order.

The Government welcome the current enthusiasm of the Opposition for this power of reference, which was introduced in 1988, despite their opposition at the time. The provision was introduced on the basis that, while sentencing is a matter for the courts and not the prosecutor, we wished to provide a remedy in those serious cases where the sentencing judge erred on the side of leniency to such an extent as to undermine confidence in the administration of justice.

Since the introduction of this measure, we have taken measured steps to extend it. In 1994 it was extended to include sentences passed for offences of indecent assault, threats to kill and cruelty to a child, together with attempts to commit or incite the commission of those offences. These powers of reference were extended again in 1995 to include sentences passed in serious fraud cases, which helps the noble Lord in his reference to the Levitt case.

The comments from all sides on this issue illustrate that the present system works well. That is a tribute to the present Attorney-General and Solicitor General and their predecessors. But while I note the noble Lord's concerns to ensure consistency in sentencing, I am afraid that it would just not be practical to widen the Attorney-General's powers in the way proposed by the new clause. In fact, I would go further and say that it would be impossible.

Both the Attorney-General and the Solicitor General personally have to consider every case. They have to see the papers, read them, consider them and execute a decision if they wish to take the case to the Appeal Court. To extend the powers of referral to include all triable either-way offences would vastly increase the pool of cases subject to those powers.

Each year the Crown Court sentences in the order of 80,000 offenders. It would therefore not be practical for Law Officers to continue their personal scrutiny of such cases if the powers of reference were to be widened to the extent proposed by the noble Lord. The new clause does not provide for the removal of the Attorney-General's personal role and it is questionable whether that would be wise.

In addition, such an extension of the powers of reference would impact on both the prosecution and the Court of Appeal, leading to delays generally in appeals against both conviction and sentence. Thus the practical effect of the amendment would be to make the present highly effective scheme unworkable. As I said at the outset, we have no difficulty with the principle of the system. We introduced the principle; it is working well and has been responsible for remedying some of the decisions of the courts. But for the practical reasons I have given and also for the inevitable consequence that would arise from accepting the amendment that something would have to be done to remove the personal involvement of the Attorney-General, I hope the amendment will not be pressed.

Lord Williams of Mostyn

I am grateful to the Minister for dealing with, as she rightly said, amendments that fall into two categories: Amendments Nos 8, 21 and 29 fall into one category and Amendment No. 32 falls into another. The Minister has now done what we wished to establish; namely, clarified absolutely that the Attorney-General's power in respect of over-lenient sentences in Clauses 1, 2 and 3 will stand.

As the Minister rightly observed, Amendment No. 32 is different. I find it difficult to accept arguments of bureaucratic convenience when one is dealing with the protection of the public. There are undoubtedly some sentences which are over-lenient and which fall into the category of offences triable either way. One looks at the practicalities. I concur with what the Minister says—that the Attorney's or Solicitor's personal involvement is essential. However, everyone knows that in practice a relatively small body of cases are presented to the Attorney and the Solicitor. They are always pre-filtered by the Crown Prosecution Service at a fairly senior level. It is not simply a press campaign of the moment that causes the CPS to put the cases forward to the Attorney.

I am disappointed and saddened that when one is considering matters of public protection and public security, the Government will not agree with a moderate amendment which will allow the Attorney to appeal in cases where sentences are undoubtedly too lenient. But that is the Government's position and the Minister stands firm. We stand firm on the basis of public protection. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.45 p.m.

Lord Hacking moved Amendment No. 9: Page 1. line 23, at end insert— ("(4A) Where a person is convicted of an offence which falls within subsection (1) above and the conditions mentioned in section 37(2) of the Mental Health Act 1983 are satisfied, the court may if it sees fit conclude that the satisfaction of those conditions constitutes exceptional circumstances which justify it not imposing a life sentence.").

The noble Lord said: Amendment No. 9 is an important amendment and I am grateful therefore to other Members of the Committee who have been kind enough to add their names to it and support me in moving it. The amendment is coupled to Amendments Nos. 22 and 30 and also to consequential amendments in the schedules, Amendments Nos. 111 to 113. However, I intend to direct my comments to Amendment No. 9. I will wait to hear what my noble friend the Minister says when answering—I am happy for my noble friend to reply to all the amendments—before considering whether to move the other amendments.

I said that this is an important amendment because it has been an important feature—I use the word "feature"; I should perhaps use a stronger word; it has been an important principle—of English law and English penal law that when persons have an identifiable psychiatric illness they are not punished; they are treated. That has been a principle of English law for many years. That is what is being attacked—I do not say that in any pejorative sense—by the provisions in Clauses 1, 2 and 3 of the Bill relating to mandatory sentences.

Perhaps I may explain to the Committee—subject to correction from Members opposite who have more day-to-day experience on these matters than I any longer do—how the Act works at the moment. When I was called to the Bar in 1963 I would deal with the Mental Health Act 1959 and Section 60 offences. The law is now to be found in the Mental Health Act 1983.

What happens is that if on the evidence of two doctors a court decides that a prisoner who has been convicted of an offence has an identifiable psychiatric illness, which is in turn identified in the statute, the court, instead of passing a sentence of imprisonment, can give a hospital order. Furthermore, the court has power, if there is reason to think that the public is in danger from the offender, to place a restriction order on him. The practical effect of that is that a prisoner, instead of going off to gaol, goes to a special hospital. If he is also under a restriction order, it is a hospital that has security to keep its patients within the hospital and its grounds.

Thereafter the sentence is an indeterminate sentence. It is left to well-established procedures that are set out in the Act and subject also to statutory instruments under which the offender remains in the hospital as long as he needs to be treated. The Secretary of State then has power to discharge the hospital and restriction orders. He has different powers when he concludes, on advice, that the patient no longer needs hospital treatment or a restriction order. He can discharge both orders altogether or keep them in being to allow the patient to be released from the hospital. There is also a legal system that can be brought into being, if there are grounds for thinking that it is not safe for the public or not in the patient's best interests for him to remain in the open streets, to return him to hospital.

If I summarise the situation correctly, that is the law as it exists at the moment. The difficulty is that the provisions of this Bill attack those principles. They attack them most significantly and most seriously in the application of Clause 1 and the mandatory sentences. The effect is that the court will have no option other than to impose a prison sentence on the accused. At the same time, it can superimpose what is a new order—a hospital direction—under which the accused will be ordered to go to hospital. The assumption is that he will go to a similar hospital as that to which he would have gone under the Mental Health Act.

As well as the difficulty raised by the noble Lord, Lord Thomas, about doctors now being involved in penal questions—namely, whether the accused should remain in prison or go back to prison—there is a further and serious difficulty that once the hospital order is discharged and the patient is no longer treatable he goes back to prison. He goes back to prison in circumstances in which he still could be suffering from the psychiatric illness which caused him in the first place to be sent to prison.

There is certain relief in Clause 43, which adds new Sections 45A and 45B to the Mental Health Act 1983, and the provision of a hospital direction. However, the basic difficulty is that the courts can no longer from the very outset identify those offenders who have a psychiatric illness and make a hospital order so that they are treated and not punished for their illness. But they are now being coupled into the penal system. There is a good deal of evidence that that would be highly damaging.

When I made a speech during the debate on Amendment No. 1 several noble Lords came up to me and said—I do not know whether it was a compliment—that I had made a rather passionate speech about government policy and had argued—and I am still willing to argue—that the noble Lord, Lord Carlisle, and I were being loyal to the well-established policies of the Government on penal matters. I am happy also to present that argument in moving this amendment. A paper was issued in 1995 by the Home Office and the Department of Health entitled Mentally Disordered Offenders Inter Agency Working Party. In that paper a clear statement was made of government policy: It is government policy that those suffering from mental disorder who require specialist medical treatment or social support should receive it from the health and social services". The paper went on to say: Detention in prison is likely to be damaging to a mentally disordered person and the prison service is not equipped to provide treatment equivalent to that available in hospital".

I find myself in a troubled position on the Government Back Benches in wishing to support the Government but wishing also that the Government would have consistency in their penal policy. That is why I am moving the amendment. Though I consider it to be a very important amendment, whether it is a matter for a Division will have to wait upon the debate. This is an important matter. I ask the Committee to consider it as such. I beg to move.

Lord Alderdice

I am grateful to the noble Lord, Lord Hacking, for moving the amendment and I am happy to stand in support of what he says. In referring to Amendment No. 9, I shall also make general comments about the other amendments in the group.

Despite being happy to support the noble Lord, I feel a little depressed as a psychiatrist to find myself having to address your Lordships when a Bill comes to this stage in the legislative process with little apparent realisation of the different position of those who suffer mental disorders. Much was made at an earlier stage in the debate of the Secretary of State's famous coach and horses. Even at the time when a coach and horses was the mode of transport in general, people took a different view as to how to treat those who were mentally disordered and had offended. Often it is thought in the public mind that those who are mentally disordered are more likely to commit crimes. But that is not so, and it is particularly not so in respect of those who commit crimes against the person. Most of those who are mentally ill are very vulnerable people. They are often very timid people, more keen to stay away from others than to get involved in any fashion, particularly in a violent or disruptive one. But sometimes, through fear or the force of circumstances, they find themselves breaching the law.

There may be those suffering from mental disorder who knowingly break the law and should suffer appropriate consequences. But there are also those who—we now describe them as suffering from learning disability but they are more generally still described as the mentally handicapped—could hardly be held to have the same level of judgment as others who might commit crimes. There are those, too, who are disordered in their personalities, but very particularly there are those suffering from severe mental illnesses—schizophrenic disorders or manic depressive psychosis—who sometimes are completely misled by their disturbed thinking. It is that which has led to them committing a crime.

When we are thinking of a crime, we think of the behaviour that brings the person to the court. But we are also always aware of the thoughts, of the wishes, of the motivation and of the feelings that have generated the behaviour that is now before the court. There is always an appreciation, and always has been, that thoughts, motivation and wishes are important in these matters even in the normal course of events; and even more particularly in those whose thinking is disturbed, whose volition or motivation is damaged and whose behaviour is often born out of feelings that bear little relation to external reality and more to disturbed fantasies in their own minds. Yet we find a Bill coming forward which seems to have little to say to those matters except almost in a pejorative sense.

I find that disturbing because for such a long time there has been an appreciation of these matters in the public mind, particularly when the public reflect more thoughtfully on them. Sometimes the public have thrust upon professionals responsibility for dealing with these matters. Sometimes the public are keen for doctors, nurses and others to take away these problems and deal with them, not in a penal but a caring fashion. They know that these are difficult matters to judge.

This is not a world of coaches and horses. It is a world of high technology. Computers are now able to be increasingly flexible in their response. We expect computers to be able to respond increasingly flexibly to what is going on. Yet in this Bill we expect humankind to behave less flexibly than we would expect computers to behave. That is extraordinary, particularly when one element of the machine is missing—humanity. There are not only the elements of education, intellect, skills, professionalism and experience that have already been mentioned but the element of humanity in our approach to those who find themselves in these circumstances. There should not only be humanity for the victims but also for those who are mentally disordered. They are themselves victims.

I think it extremely important that the Government think sensitively about all the implications involved. Let us think of some examples. Let us take the case of a young man who is below the age of 16 and is, in the old terminology, mentally handicapped. He lives with a young sister. Sexual exploration leads to the commission of what is clearly a crime. Some years later he finds himself as the butt of abuse, whether in public or elsewhere. He lifts whatever comes to hand and hits someone and injures that person seriously. Yet we are to believe that there is to be no understanding about that person that he would be treated with sympathy alongside the terrorist coming to his second conviction. We may have someone whose mind is completely disordered, who is hearing voices telling him to do this, that or the other. There may be someone who is frequently well, but who sometimes falls victim to a psychotic episode. Unfortunately, these are not exceptional matters. We are talking about 1 per cent. of the population as a whole who at some point suffer from schizophrenic disorder. Many others will suffer from some other psychosis which is either passing or more chronic.

Even for a psychiatrist, it would be a very depressing matter that a Bill should pass from the other place to this Chamber and—worse still—for it to pass from this Chamber to the other place, without recognition that professionalism, experience, understanding and, most importantly, humanity, demand that we understand that those who are mentally disordered in many circumstances require to be considered otherwise than those who have their full faculties. I firmly trust that the Minister will give consideration to these matters.

9 p.m.

Lord Renton

My noble friend Lord Hacking has done a valuable service in putting this matter forward. Perhaps I may make just one comment on the interesting speech of the noble Lord, Lord Alderdice. In view of what he said towards the end of it he should realise that the courts have become familiar with the difficulties of dealing with people who suffer from mental disorder. They take medical evidence and they have clear instructions as to what to do from the 1983 Act, which, by the way, is to be added to by the long new Clause 43.

Perhaps I may next refer to the amendment itself because that follows from what the noble Lord, Lord Alderdice, was saying. The amendment begins, Where a person is convicted of an offence". One cannot convict a person of an offence unless there has been criminal intent, which is mens rea. In many of these cases it will be found that the person is not fit to plead—in other words, he is not fit to stand trial—or in the course of the trial it will be found that he could not have had the intent because of his mental condition.

The amendment very wisely gives a definition of one of the matters included in the expression "exceptional circumstances". That is quite a useful precaution. I believe that technically my noble friends on the Front Bench will say, "If we start by giving one example of exceptional circumstances, where are we going to stop?". So I have that doubt about the best way of handling the matter.

The alternative way is to leave it to the courts when applying this Bill, after it becomes an Act, to decide whether in any particular case exceptional circumstances arise or whether we should write into the Bill what must be regarded as exceptional circumstances. At the moment I have an open mind about the issue. It is a little dangerous because for the first time the provision creates a specific example of exceptional circumstances.

I wish to add something which is not universally understood even by lawyers. There is a difference between what is defined in the 1983 Act as one kind of mental disorder, described as, mental impairment or severe mental impairment", which, under the name "mental handicap", is most inaccurately described as "suffering from learning disabilities". We all have learning disabilities. I cannot play the piano with more than one finger and I find that a very severe handicap. That must be distinguished from the next kind of mental disorder mentioned, which is mental illness. That includes, incidentally, a psychopathic disorder. Mental illness is very often curable. However, mental handicap is completely incurable. I need not go into the medical reasons for that because the situation is so plain once it is understood.

However, I believe that the wording will have a bearing on this amendment. The courts would be bound to consider that, if a person has mental handicap and simply cannot understand that it was wrong to do what he had done, it would be very difficult to allow the jury to convict. However, people suffering from mental illness may sometimes be people with brilliant minds. Although they may be suffering severely from mental illness they know the difference between right and wrong and they may very well be guilty. That is a another factor that we have to bear in mind. We should be grateful to my noble friend, and I look forward to hearing what my noble friend Lady Blatch has to say in answer to this very important matter.

Lord Burnham

Before my noble friend sits down, is it not the case that this Bill in no way changes the conditions of the 1983 Act by which courts can always say that someone appearing before them needs hospital treatment rather than sentencing?

Lord Renton

That is so. There is nothing in the Bill that prevents that. It is something which I hope and believe my noble friend Lady Blatch will confirm.

Lord Swinfen

I was delighted to put my name to this amendment and I am very glad that my noble friend Lord Hacking has moved it. When my noble friend the Minister comes to answer the debate, I hope that she will say that she will take the matter away and give it further consideration before Report stage.

I understand that mental disorder could not automatically be interpreted as amounting to an exceptional circumstance. Although to do so would be a humane interpretation of "exceptional circumstances", it would, I am advised, be a legally dubious interpretation given that mental disorder among serious offenders is neither uncommon nor exceptional.

I also understand that for someone who is mentally disabled or mentally ill, hospital is much the best place for them rather than prison. They are liable to get worse in prison. There is little in the way of treatment when they need it because the prison service is already over-stretched. If a court orders detention in a hospital, because it is indeterminate it is usually for a longer period than a spell in gaol. At the same time those in hospital are being treated and when they leave they will not be a danger to themselves or to the public generally. If they are incarcerated in gaol their condition is likely to get worse and, when they leave, they will be potentially a greater danger to the public and possibly to themselves.

Therefore, it would be much better if powers were introduced to enable such people to be detained in hospital where they can be properly treated, thus making certain that when they come out they are no danger to anyone. In the long run, that would probably be a great deal cheaper for the country as a whole as well as a great deal fairer into the bargain.

Lord Mottistone

I was not intending to speak until we reached Clause 43. However, I thought that some noble Lords, particularly the noble Lord, Lord Alderdice, were somewhat unfair to the Government and to my noble friend in suggesting that they had not taken enormous care to try to deal with the problem within the terms of the Bill. Clause 43 is included in the Bill for just that purpose.

Before we tackled this matter, my noble friend the Minister wrote me a long letter of some four pages which I was able to share with the psychiatrists advising the National Schizophrenia Fellowship, which advises me. Although they were still unhappy in some respects, they said that they were very impressed that the Minister and the Home Office had responded to the discussions that had taken place before the Bill was prepared and that they had gone quite a way towards solving the problem.

I do not propose to say any more now because I am sure that when she replies my noble friend the Minister will be able to explain what has been done and why. I should like to return to the matter when I speak to my amendment to Clause 43 in two or three sittings' time.

Lord Dubs

I congratulate the noble Lord, Lord Hacking, on moving the amendment and on the way he developed the argument. Before making one or two brief comments, I should declare an interest. I am a non-executive director of a mental health trust in south-west London called Pathfinder. We have a secure unit as part of the facilities on the hospital site.

I am aware that this group of amendments will apply to only a small proportion of mentally disordered offenders. It is widely accepted that our prisons unfortunately contain too many mentally disordered offenders. One of the difficulties facing our criminal justice and prison systems is how to deal with mentally disordered persons who commit criminal offences. It is not easy. In these amendments we are attempting to find a somewhat better answer than the Government have achieved in the Bill. I accept, of course, that Clause 43 provides us with another opportunity to discuss these issues although the focus is somewhat different.

It is difficult for the prison system to cope with some of the mentally disordered persons within it. If one talks to any prison governor or prison officer, one realises that it is extremely hard for them to provide the right environment for offenders when there are mentally disordered people among them.

When a mentally disordered person has completed his or her sentence, we then have to look to the safety of the public. I believe that there are two challenges in this area. The first is by what means we can best protect the public who surely have that right. Secondly, can we do so by also being fair to mentally disordered persons—or some of them at any rate—in that they too are entitled to an element of justice in the way they are treated, albeit that they have offended?

The amendments are a step in the right direction. They provide protection for the public combined with fairness. If an individual who is mentally disordered has served a period of time in prison and is not fully well, it is much more difficult to provide continuity of treatment and supervision following prison than is the case for someone who has been in hospital for some time and is discharged from that hospital or secure unit only when they have recovered to the point when they are not a danger to themselves or to the community. We can manage it better that way, and I believe that these amendments are a move in that direction.

9.15 p.m.

Lord Pearson of Rannoch

Subject to anything that my noble friend on the Front Bench may say, I should like to add my support to these amendments. As your Lordships will be aware, I am the father of a mentally handicapped child. Recently I have received a brief from the Law Society which sees in this Bill the danger that mentally handicapped people will be improperly confined to prison. Thanks to the Government's unfortunate community care policy, many of the long-stay hospitals are still being closed. Therefore, one is dealing with a situation in which more and not fewer mentally handicapped people are being improperly discharged into the community. Another unfortunate policy that is espoused by the Department of Health is that when these people are discharged into the community they should lose contact with the hospitals and the friends that they may have made there. I am president of the National Society for Mentally Handicapped People in Residential Care. That body is losing touch with a number of these people. I do not know who will speak for them if eventually they commit crimes under this Bill. I am also aware that last year the mentally ill, who also perhaps should not be in the community at large, as opposed to the mentally handicapped committed about 100 murders.

This is a very serious situation. I do not want to delay the Committee. I shall listen with great interest to what my noble friend has to say. Like other noble Lords, I will consider Clause 43 with considerable interest.

Lord Renton

Before my noble friend replies, perhaps I may add one rather important point that I omitted and do not believe has been mentioned. I am indebted to MIND for drawing attention to this matter. The experience of MIND is that people can wait in prison for a long time before they are transferred to hospitals.

Baroness Blatch

This is an issue that we take very seriously indeed. It is an extremely important subject. It is right that while we discuss this Bill we should also discuss this issue. Therefore, these amendments give us a valuable opportunity to do that. The amendments would have the effect of upsetting the balance that the Bill provides between the need to ensure that the public are protected from repeat offending and the need to enable effective medical treatment to be given to mentally disordered offenders.

Amendment No. 9 to Clause 1 and the two associated amendments to Schedule 4 would enable the courts to regard evidence of mental disorder as a reason itself for not applying the automatic life sentence provided by Clause 1. The life sentence is needed to protect the public from further repetition of the most serious sexual and violent offences and to ensure that people who have a history of committing such offences repeatedly, for whatever reason, receive supervision for life. A disposal under the mental health legislation cannot achieve that. It would frustrate the purpose of the mandatory sentence in protecting the public if evidence of mental disorder could be regarded in itself as an exceptional circumstance enabling the life sentence to be avoided.

My noble friend may be concerned to ensure that mentally disordered offenders who are sentenced under this provision can receive treatment for their disorder. That can be achieved by way of the hospital direction power under Clause 43. Initially, that will be available only for psychopathically disordered people, but there is provision to extend its scope to all categories. Until that happens these people can be transferred to hospital by the Home Secretary if doctors recommend it.

I have noted the point that my noble friend Lord Renton has made. I will investigate it and come back to him.

Amendments Nos. 20 and 30 to Clauses 2 and 3 are similarly intended to enable the courts to regard evidence of mental disorder as a reason for not applying the mandatory penalties provided for in these clauses. However, when sentencing under Clauses 2 and 3, the Bill already provides for a court to retain the power to make a hospital order as an alternative to the mandatory sentence, so there is no need for a mental disorder to be regarded as an exceptional circumstance in those cases if a hospital disposal appears to the court to be the most appropriate sentence.

The effect of my noble friend's final amendment to Schedule 4 would be to enable the courts to substitute a guardianship order under the Mental Health Act 1983 for the mandatory sentences provided by Clauses 1 to 3. A guardianship order is a provision that is intended to ensure that vulnerable people receive care and support. It is in no way a custodial disposal, nor one that provides any sanction whatever for repeated criminal behaviour. A guardianship order would be entirely inadequate to provide the public with the protection from further repetition of serious and distressing crimes by a person who may continue to present a risk with which mandatory sentences are intended to deal.

I am sorry that the noble Lord, Lord Alderdice, felt aggrieved that there has not been sufficient discussion about the matter. I am deeply grateful to my noble friend Lord Mottistone, who knows that there has been a great deal of activity on these matters within my department, the Department of Health and outside bodies. As long ago as our preparations for the White Paper, Protecting the Public, and within the White Paper, we flagged up the issue of mentally disordered offenders. That was followed up by yet another document which went out for special consultation entitled, Mentally Disordered Offenders: Sentencing and Discharge Arrangements.

We carefully considered the comments made by the Royal College of Psychiatrists and others. The proposals included in the Bill relating to the sentencing of mentally disordered offenders have been the subject of lengthy debate during the past year and longer.

The automatic sentence in Clause 1 does not prevent a mentally disordered offender from receiving treatment in hospital. The court may impose a hospital direction order under Clause 43 if the offender is psychopathically disordered. As I said, we have plans to extend that provision. The court may also recommend that the Secretary of State transfers the offender to hospital under Section 47 of the Mental Health Act.

It might be helpful if I set out the flexibility that is available under Clauses 1, 2 and 3, because it is important to point out that, as a result of the added flexibility, courts will no longer have to make the choice between prison or hospital; a hybrid order is available to them.

Under Clause 1, if the offence is a second serious sexual and/or violent offence, the court must pass a life sentence. It may add a hospital direction order under Clause 43, but initially only if the defendant is psychopathically disordered. The court may also recommend that the Home Secretary transfers the offender to hospital under Section 47 of the Mental Health Act 1983. Only if the court has accepted other exceptional circumstances for not passing a life sentence can it make a hospital order under Section 47 of the Mental Health Act 1983.

If a conviction is arrived at by the court, some degree of culpability has been established in court. It is important to point out that, if an offender was found to have been insane at the time of the offence, that can be dealt with under the insanity legislation and irrespective of Clauses 1 to 3.

Under Clauses 2 and 3, the court may make a hospital order under Section 37 of the Mental Health Act 1983. Again, that does not rely on there having to be an exceptional circumstance. It is provided for by Schedule 4, paragraph 12(2). The court may also pass the mandatory sentence and add a hospital direction order under Clause 43. The court may also pass the mandatory sentence and recommend that the Home Secretary makes a transfer to hospital order under Section 47 of the Mental Health Act 1983. The courts may also simply pass a prison sentence.

My noble friend Lord Renton rightly brought to the Committee's attention the vast range of mental disorders. The possibilities can range from someone who has committed an offence for which he was wholly responsible and who understood the criminal intent of his actions to someone who was not culpable because of his state of mind at the time. There is everything in between—

Lord Alderdice

I did not refer to Clause 43, but the Minister has done so. I trust that I did not give the impression that she and her colleagues had not considered the question of the mentally ill but had not, in my view, given due recognition to the problems thereof.

Perhaps I may deal with Clause 43. It suggests that, if someone is mentally ill and that mental illness has had a part to play in the commission of the offence, he might go to a hospital for treatment. The psychiatrist would then be in a position of having to judge when his patient is well enough to go to prison. How is that likely to help the relationship between the psychiatrist and the patient? The psychiatrist is supposed to decide, "Now I think you are well enough, you can go to prison". Of course, there is then a positive incentive for the patient, if he becomes mentally well enough to know what is going on, to continue to be as poorly as possible in order to continue in that situation. Thus, he will block a bed, continue to be unwell and ensure that the psychiatrist is not in a position to take in someone who is languishing in prison because there are no beds available. With due respect to the noble Lord who spoke on those matters, those concerns are causing profound unhappiness to the Royal College of Psychiatrists and to others who are dealing with them.

I refer to Clause 43 because the Minister has raised the matter. The way of dealing with this issue has intruded into the care of the mentally ill. In the past, it was felt that when folk were that disturbed, that was punishment enough indeed in the situation and the best thing to do was get them well, because the safety of society was more likely to be achieved if they were well when returning to society than if they went to prison, where they would not be so well looked after, and then came out into the community.

Baroness Blotch

I do not wish to detract from the seriousness of the points made by the noble Lord because they are very important. But there are two distinct issues here. The first is that offences have been committed, arrests have been made and somebody has been brought before the courts. On the one hand, we are talking about the powers of the court to deal with a difficult situation where mental health may be a contributory factor or a condition which would either mitigate against the type of sentence passed by the court or may be a mitigating circumstance in terms of how the case was considered in the first place.

Then there is the other side of the coin, which is not a matter for this Bill but is certainly a matter for the Government to consider and to deal with other departments and agencies; that is, the management of mentally ill people in that process from the point of committing the crime. It is important that when the court hears the case it is made aware of all the circumstances surrounding the case, including the mental condition of the defendant who is before the court.

What we have done, and why Clause 43 is relevant as regards the range of options made available to the court, is moved away from the court having to make either/or decisions as to prison or hospital. We have given the courts flexibility to choose a hybrid provision which recognises some degree of culpability for the crime but which either sets it aside completely in the case of Clauses 2 and 3 in order to make a hospital order or passes a prison sentence with a direction to a hospital. I do not wish to confuse the two issues. It is very important for the courts to have that flexibility.

Reference was made to the degree to which someone is kept waiting to be moved as a result of a direction and the degree to which the prison service look after people when they have been released from the hospital. In our prison system, if somebody is still a risk to the community but all medical efforts which can be made have been made and the hospitals say, "We can do no more", or "We have completed the treatment", then people are released who are known to be a risk to the community. One of the reasons for the provision in Clause 1 is to make sure that that person is not released into the community without a proper assessment of risk. Now there will be a risk assessment. If they pass that risk assessment, they move into the community. If they do not, provision must be made for them. That provision may be in the form of a hospital or a prison cell. We are giving that flexibility to the courts. That is what we are talking about here rather than the very important issues of managing people with mental disorder through that process and beyond.

9.30 p.m.

Lord Hacking

I listened with great care to the points raised and am most grateful to all Members of the Committee who participated in the debate. Although I should have preferred my noble friend the Minister to have little more of an open mind on the issues raised, it does not seem to be appropriate at this stage in our deliberations to attempt to divide the Committee. Therefore, I do not propose to do so.

I believe that this matter needs further consideration. It goes to the heart of some very fundamental issues. At the end of the day, or perhaps I should say in the final analysis, the way that the Bill will impact upon the Mental Health Act 1983 means that mentally disordered persons will find themselves fully culpable legally and responsible for their actions by the imposition of life sentences upon them. That is a very serious matter. While there are certain reliefs to be found in the somewhat complicated further sections which are to be added to the Mental Health Act 1983 under Clause 43, it seems to me that that basic difficulty exists.

I did not address the Committee on my other two amendments. However, as my noble friend the Minister kindly commented upon them, I should like to point out that the effect of Clauses 2 and 3 and their relationship with the Mental Health Act is that the courts will not have the same freedom to deal with those who, in one form or another, are mentally ill. I should stress that I encompass in that expression those who may be mentally handicapped or who suffer from mental disorders. I say that because it will not be possible to use the guardianship orders nor, indeed, to use the psychiatric probation orders.

For all those reasons, and also because of the importance of the issue, I should be most grateful if my noble friend the Minister would agree further to consider the matter. During the course of the debate, my noble friend Lord Mottistone very kindly gave me a very long letter which my noble friend had written to him and which I have not had time to study. I, for my part, will certainly read most carefully what my noble friend the Minister has said and I shall also read with great care the detailed letter given to me by my noble friend Lord Mottistone. I shall consider all the issues, as I am sure will other Members of the Committee.

We shall certainly remember the points made by my noble friend Lord Renton. It would be indeed a day of accolades were I to move an amendment with which my noble friend Lord Renton did not find technical deficiencies. I am very happy to take on board the criticisms that he made. However, the noble Lord talked about convictions. I should point out to him that my amendment would be activated only on conviction, which is exactly how Section 37 of the Mental Health Act 1983 works. Therefore, my amendment was at least consistent in that respect. Nevertheless, it does not mean to say that it passes the order of perfection of my noble friend. I am always very grateful for his detailed observations.

For all those reasons I shall not press the amendment. But, at the same time, for all those reasons I ask my noble friend the Minister and all Members of the Committee who participated in the debate to give this very important matter further consideration. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carlisle of Bucklow had given notice of his intention to move Amendment No. 10: Page 2, leave out line 3.

The noble Lord said: In view of the lateness of the hour I do not propose to move the amendment.

[Amendment No. 10 not moved.]

[Amendments Nos. 11 to 13 not moved.]

The Deputy Chairman of Committees (Lord McColl of Dulwich)

I should point out to the Committee that, if Amendment No. 14 is agreed to, I cannot call Amendment No. 15.

The Lord Advocate (Lord Mackay of Drumadoon) moved Amendment No. 14: Page 2, line 17, leave out from ("if") to end of line 19 and insert ("the conviction for it was obtained on indictment in the High Court of Justiciary and it is any of the following, namely—

1. (a) an offence falling within paragraph (a), (e), (g) or (h) of subsection (5) above;
2. (b) culpable homicide;
3. (c) clandestine injury to women or an attempt to cause such injury;
4. (d) sodomy, or an attempt to commit sodomy, where one of the parties does not consent;
5. (e) assault where the assault—
1. (i) is aggravated because it was carried out to the victim's severe injury or the danger of the victim's life; or
2. (ii) was carried out with an intention to rape or to ravish the victim;
6. (f) lewd, libidinous or indecent behaviour or practices; and
7. (g) an offence under section 5(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 (unlawful intercourse with a girl under 13).").

The noble and learned Lord said: The above amendment seeks, if I may so put it, to rearrange the tartan fringe to the Bill. With the leave of the Committee, I shall mention also Amendment No. 15, for reasons that I shall explain. The purpose of Amendment No. 14 is to clarify the way in which the automatic life sentence provisions in Clause 1 will operate in respect of offenders whose first conviction is in the High Court of Justiciary in Scotland.

Clause 1 provides that a person, aged 18 or over, is eligible for an automatic life sentence if he or she is convicted of a serious offence and had been convicted previously in any part of the United Kingdom of another serious offence. The Crime and Punishment (Scotland) Bill, which had its Second Reading in this Chamber earlier this week, contains similar provisions which are to be included in the Criminal Procedure (Scotland) Act 1995. It is our intention that a conviction that qualifies an offender for an automatic life sentence in Scotland should also qualify an offender for an automatic life sentence in England and Wales. The reverse is also proposed.

As presently drafted, Clause 1 of the Bill does not fully meet the Government's intention. In particular, it does not make clear that only convictions for relevant offences on indictment in the Scottish High Court of Justiciary are qualifying convictions for the automatic life sentence. This is inconsistent with the automatic life sentence provisions in the Scottish Bill. The Government are most grateful to the noble and learned Lord, Lord Hope of Craighead, for drawing attention to this during the Second Reading debate of this Bill. This amendment seeks to correct this inconsistency and also lists on the face of the Bill the relevant Scottish offences to make sure that the Scottish element is fully understood by all those who may have to work with this Bill in England.

This amendment has been discussed with the noble and learned Lord, Lord Hope of Craighead. He has authorised us to say that this fully meets the point he sought to raise at Second Reading. He also authorised us to say that had he been present he would not have insisted on his own amendment. I beg to move.

The Earl of Balfour

I am fully aware that I am on dangerous ground. But, having read what the noble and learned Lord, Lord Hope of Craighead, said in his Second Reading speech on this Crime (Sentences) Bill for England and on the Scottish equivalent Bill, I should like to suggest that a new schedule is inserted into this Bill giving in two columns a comparison of the qualifying offences on both sides of the Border. My idea is designed to give judges a comparison between the different meanings and expressions used in the English and Scottish courts.

The Scottish Bill introduces in Clause 1 a new Schedule 5A into the 1995 Scottish Act. However, there is not a comparative schedule in this English Bill.

If there are differences in what is a qualifying offence in Wales or Northern Ireland, then there would need to be a third or fourth column in the comparative schedule that I put forward, such as is mentioned in subsection (7)(c) which brings in S.I. 1981/155(N.1.2), which is not mentioned in the Scottish Bill. I refer to the margin note on page 2 of the Bill.

On Amendment No. 15, as I understand the position, the procurator fiscal decides whether a case goes to the High Court or the sheriff court. I do not think there is an equivalent officer in English law. Again I fully realise I am on dangerous ground. However, I felt there is such a difference that there should be a comparison put into the English and Scots legislation to cover the points I have raised; otherwise, I am all for supporting the Government's amendment as it stands.

Lord Mackay of Drumadoon

I am happy to give consideration to the point raised by my noble friend as to whether this would assist. It clearly does not form part of the amendment. Having given that undertaking, I hope that it will be possible for the amendment to be agreed to.

On Question, amendment agreed to.

[Amendment No. 15 not moved.]

On Question, Whether Clause 1, as amended, shall stand part of the Bill?

Lord Ackner

A few days ago I received out of the blue a most courteous apology from Mr. Tam Dalyell. In an admirable obituary concerning Lord Bancroft, he referred in passing to the support given in recent debates by myself and my noble and learned friend Lord Simon of Glaisdale. He made the no doubt Freudian error of referring to us both as "war Lords". Such is the price of diffidence.

I concede that at an early stage, although not before the Home Secretary's proposals had been roundly condemned by the then Lord Chief Justice, my noble and leaned friend Lord Taylor of Gosforth, I criticised mandatory life sentences perhaps not in the timid and deferential terms that the noble Lord, Lord Tebbit would have wished. I was, however, in good company since the Government's own White Paper of 1990 made it clear that courts would continue to have the wide discretion they needed, to deal justly with the great variety of crimes which come before them". I emphasise the word "justly" because it is my respectful submission that one thing this Bill will prevent is just sentencing. In the White Paper the Government rejected in terms a rigid statutory framework on the lines of that introduced in the United States or a system of mandatory or minimum sentences for certain offences.

The White Paper gave as its reasons for such rejection that it would make it more difficult to sentence justly in the exceptional cases. Hence the proposition which I ventured to put before the Committee a few seconds ago about justice is supported by the Government. The White Paper went on to say: Of course it could also result in more acquittals by juries with more guilty men and women going free unjustly as a result". Again, there is reference to justice, or the lack of it.

However, my other submission is that not only will the Bill do injustices; it will detract rather than promote the safety of the public. Why should mandatory minimum sentences, or mandatory life sentences, make more guilty men and women go free as a result? Members of the Committee have already been told the reasons. I mention them as briefly as I can. There will be more pleas of not guilty when there should be guilty pleas. The heavy onus which lies on the prosecution will inevitably result in some cases which should have been the subject matter of a conviction being acquittals and thus a guilty man or woman would go free.

Secondly, there will be a positive reluctance by juries to convict when they know what will be the consequences of conviction. It is not difficult for an accused person, through his counsel, to make sure that the jury know what will be the consequences of their conviction. One can hear counsel say: "Would my client, conscious that a life sentence could result from his acting as is alleged, take that risk?". Then there is the refusal or failure of witnesses to come up to proof because they know the consequences, particularly where the witnesses are close relatives or otherwise closely connected with the victim.

I shall not take these matters further. It is late, and the Committee has heard references to them. References have been made to plea bargains, to unrealistic pleas being accepted in order to achieve at least a conviction. We have heard how that will move the discretion of the judges to the prosecution or the defence and the bargains that they will make.

Noble Lords will no doubt recall the strength of the condemnation by the former Lord Chief Justice, the noble and learned Lord, Lord Taylor of Gosforth, in a debate that he instituted on 23rd May on the Government's 1996 White Paper which forms the basis of this Bill.

The noble and learned Lord said: Turning to the White Paper, I venture to suggest that never in the history of our criminal law have such far-reaching proposals been put forward on the strength of such flimsy and dubious evidence. The shallow and untested figures in the White Paper do not describe fairly the problems the Government seek to address. Still less do they justify the radical solutions it proposes".—[Official Report, 23/5/96; col. 1025.] As recently as 27th January, at Second Reading, my noble and learned friend Lord Bingham of Cornhill, the Lord Chief Justice, in a devastating attack, said that each of the proposals—that is, the mandatory life sentences, the minimum sentences and the abolition of parole—had to be tested by asking four questions: Will it be just? Will it serve to reduce levels of crime or increase the protection of society? Will it be cost effective? Will it work in practice?". He continued: I feel bound to tell your Lordships that in my judgment these measures conspicuously fail to pass all four of those tests".—[Official Report, 27/1/97; col. 984.] At the outset of his speech, my noble and learned friend Lord Woolf said: If this Bill is implemented, it is my fear that it will prove to be an extremely expensive way of making the criminal justice system worse".—[Official Report, 27/1/97; cols. 996–997.] It would be difficult to find legislation that has been so consistently referred to as bad in principle and bad in practice. I accept that there is no question but that the White Paper and the Bill have identified a problem in the inadequacy of the existing law to deal with potentially dangerous offenders who currently must be released at the end of their determinate sentences irrespective of whether or not they still pose a danger to society. That has been accepted right from the start. However, my submission is that the proposed solution is wholly unsound.

As Dr. David Thomas QC, a lecturer at Cambridge and the editor of the essential encyclopaedia, so to speak, on sentencing, in an article in Current Sentencing Practice News on 9th May pointed out: Much better ideas have been put forward and in some cases enacted. The Butler Committee on Mentally Abnormal Offenders identified the same problem twenty years ago. Its solution—a review of sentences—has been ignored by successive Home Secretaries". He accepted that it would need some re-thinking to take account of developments in the intervening period, but it would provide a better starting point than these proposals.

As I pointed out, the Canadian criminal code contains dangerous offenders provisions which are far more sophisticated than the crude device which the Government propose. Legislation of a similar kind enacted in Victoria in 1993 could prove a starting point. I accept that none of the schemes is perfect. But, as Dr. Thomas said, they begin by addressing the problem of the dangerous offender in an intelligent manner, avoiding the mistake of making the availability of the sentence depend on conviction of one of a narrow range of offences and including provisions designed to avoid the application of the sentence in cases where the offender is not dangerous.

There has been reference to the extent to which the prison population will be increased well beyond the estimates given by the Home Secretary. I think those estimates are highly suspect. His belief that the legislation will act as a deterrent and enable him to discount an increase by some 20 per cent. has no sound basis.

One point has probably not featured as firmly as it might—the reaction of the judges. I indicated my belief that the judges have grown sick and tired of being first of all the subject of complaint that they have sentenced excessively. That was the impact of the complaints in 1990, with strong media criticism. As a result, their discretionary powers were removed, despite it being pointed out that that would be disastrous and that they would have to be restored, as they were, not many months later. Now the complaint is that they are too soft, that they do not sentence with enough vigour. That is all in the space of a few years when imprisonment has increased by 50 per cent. from approximately 40,000 prisoners to 60,000. Accordingly, this rag-bag of suggestions has been provided.

The judges are expected to reduce the sentences which they would now impose by some two-thirds. The sentences that they impose now are sentences in every sense of the word. Half the sentence—up to four years—is served in prison. The other half is served at liberty but one quarter of it in circumstances of strict supervision and strict conditions, with the liability to recall, and the remaining quarter at risk of having to return if there are subsequent offences. That is all designed not out of softness but to try to achieve the end of criminal behaviour.

What the Bill does is to ensure that the available expenditure is directed to more and more prisoners. The ability to do something constructive in prison, the hope of training and fitting the prisoner for a sound subsequent existence cannot be provided to the extent it should.

I return to the judges and their reactions. It is said that they are expected to give two thirds of the sentence that they would have imposed. There is not a specifically right sentence for a given offence—four, five or six years. Heaven knows what will happen to sentencing guidelines if this legislation goes through, but what there is at the moment is a bracket. For a given offence, say rape—an ordinary rape without circumstances which direct a considerable increase in the usual tariff—the bracket may be six years to eight years.

I believe that the judges, in order to ensure that they are not castigated for being soft on crime (albeit at the instance of the Government and the legislation, which will provide in fact no such protection) will provide for the two thirds at the top of the bracket. Providing the two thirds at the top of the bracket will mean that instead of the rape sentence being brought down, as the Government would like, to four years, it will be six years, the top of the bracket having taken off the two thirds. Accordingly, the population in prison will go up and up. The expenditure on prisons will mean that the expenditure on means to keep people out of prison or keep them from returning to prison will be heavily curtailed. As a result, the so-called "protection of the public", which the Bill is so ill designed to achieve, will be wholly frustrated.

A little over a year ago, in the debate on the Address on 20th November 1995, the noble Lord, Lord McIntosh, expressed the view that, if the Home Secretary's proposals came before this Chamber, they would not be accepted. He said: Even if a whipped majority in another place insisted on them, I do not believe that they would survive the considered view of your Lordships".—[Official Report, 20/11/95; col. 215.] I trust that the noble Lord will not be disappointed.

This is a bad Bill and has been repeatedly so described in your Lordships' House. So far as this clause is concerned, I ask the Committee to say that it will have none of it. I beg to move.

Lord Carlisle of Bucklow

I realise the lateness of the hour and apologise to the Committee for rising at this time. I appreciate in particular that my noble friend the Minister has been in this Chamber since three o'clock. However, I do not feel it possible to allow Clause 1 to go past without saying a few words about my concern with regard to some of its proposals. I shall attempt not to repeat what the noble and learned Lord, Lord Ackner, said, other than to say that I hope the Minister will take great thought about what he said at the end of his speech about the likely effects on the size of the prison population caused in particular by Part II of the Bill, which we shall debate next week.

I feel that there is a genuine problem in Clause 1, which the Home Office has recognised and faced; but it has taken an unnecessarily complicated way to try to deal with it. Clearly one must accept that there is a concern, which the Minister has expressed on many occasions, that people serving determinate sentences are released back into society when it is still felt that they are a danger. That is an anxiety we can all understand and share. But is the method of dealing with that problem enormously to increase the number of determinate life sentences which should be passed, in many cases where the criteria of risk cannot possibly apply?

As I understand it, in all these cases the court will be asked to pass a sentence of life imprisonment on the second conviction: not a second conviction for rape or anything of that nature, but a second conviction for one of the offences that fall within this group. The court must then state the tariff. I will be grateful if the Minister will give thought to this point. The tariff is not a sentence. Presumably, therefore, if the judge says, "You will go to prison for life; I recommend that you stay there for three years", that three years is the minimum period the defendant has to serve.

Since the tariff is not a sentence, various clauses that deal with obtaining remission for good behaviour do not apply to that minimum period. That being so, what incentive is there for that individual to behave while in prison? What thought has been given by the Home Office to a substantial increase of potentially dangerous people in prison when, no matter how they behave, their sentences cannot be reduced?

The other matter about which I should like to ask the Minister is this. If it be right that of the 207 cases identified in 1994 to which this clause would apply, only 10 received life sentences, what is the logic which says that we should require the rest to receive life sentences in future? That is particularly illogical when the White Paper itself does not criticise the length of sentence passed in those cases. I suggest that we are posing a real problem for the prison service; we are posing problems for the courts—the release of those with determinate sentences who still remain a danger and who could be dealt with more effectively, for instance, by reference to the Butler Report.

Finally—because of the lateness of the hour I will limit my remarks to this—has the Minister seen the research being carried out by Dr. Roger Hood? If so, what is the attitude of the Home Office towards it? That research shows that this Bill, if passed, would affect only 10 per cent. of those about whom the Government claim to be concerned; namely, those who may be being released at the end of their sentences while still posing a danger to society. As I understand it, that figure was worked out on the basis of those who had been refused parole.

If it be right that 90 per cent. of those who are at risk of committing further offences do not come within the ambit of Clause 1—either because they are first-time rapists or because they have been convicted of offences against children which do not amount to rape and do not come within the ambit of this Bill—would it not be sensible to find some method such as that recommended by Lord Butler for dealing with cases in general which fall within that criterion, rather than taking a sledgehammer approach which will lead to many people receiving life sentences where in normal circumstances that would not be justified?

I apologise for raising these matters at this hour of the evening. But this clause has not been fully thought through. It is fraught with problems for the future. I urge the Minister to consider whether it is possible to find an agreed solution for what is, I am sure, a recognised problem.

Lord Monson

Perhaps I may preface my remarks by saying that this is one of strangest Committee stages I have ever attended. Here we are discussing a major Bill which will have profound effects upon our criminal justice system and which, justifiably or unjustifiably, will have a major effect upon our civil liberties, and yet for the past two hours there have been no more than 20 or 25 noble Lords in the Committee; and it is not actually particularly late. There is no need for the noble Lord, Lord Carlisle, to apologise for speaking at this late hour, because it is not by historical standards a particularly late hour. This must have something to do with the impending general election and the consequent end of term feeling. But it is very worrying all the same.

As a layman, it seems to me that Clause 1 is the most important clause in the Bill, providing, as it does, for life imprisonment for a second but quite possibly totally unrelated so called serious offence. I say "so called" because, although many of the offences are indeed serious, some are not, by any normal standards. And not all, of course, are intended.

I give, as an example, manslaughter. Let us suppose that a respectable train driver, married with two children, having worked for whatever company succeeds British Rail for 25 years and who committed as a teenager an offence involving violence, foolishly one day takes his eyes off the track, goes through a red signal, crashes into the back of another train and kills a passenger. He will quite possibly be tried and convicted of manslaughter. Is it really necessary to sentence him to life imprisonment? Does he really pose a danger to the public?

What about rape? We all know that there are degrees of rape that vary enormously in their heinousness and effect upon the victim. On the one hand there is the terrible incident of the three men who broke into the vicar's house and raped and did other terrible things to his daughter. In my opinion, the sentences passed in that case were totally inadequate. They should have been at least double what they were, if not longer. On the other hand, there is the kind of case which the noble Earl, Lord Russell, knows all about, where a very young university student was invited into bed by a young woman who then changed her mind literally at the eleventh hour. In the event, he was acquitted, but he might very well not have been acquitted, and he too might be subject to being sentenced to life imprisonment for a second offence of any kind or description.

We note also that attempted rape is included. There are enormously varying degrees of attempted rape. Some are extremely serious and involve great physical assault and terror on the part of the victim. On the other hand, at the farcical extreme there is the case of Mr. Angus Diggle, where no physical harm was caused and, as both parties were totally drunk, there was hardly any mental distress either. Yet the same law will apply to this great range—in terms of heinousness—of cases.

Even if life only means 18 months or two years, what effect will it have in practice? How will a person sentenced to life imprisonment but released after 18 months be able to get a decent job and hold it down? Will he be able to get a mortgage? Will he be able to get a passport? Some countries will not allow people in with that kind of thing hanging over them. Some people say that it is tough luck and that it does not matter. I think it does matter. If we want people to reform and go steady, we have to give them a chance to have a decent job. With life imprisonment being there in the background—undeservedly in some cases (but not all: in some cases it will be fully merited)—I do not see how it can be justified.

Lord Bingham of Cornhill

Whether it is late at night or not, perhaps I may invite the Minister's attention to one situation which, although hypothetical, is one that I think is by no means unrealistic. It is directly related to Clause 1 of the Bill. Let us suppose that a defendant is convicted of a second qualifying Clause 1 offence and is therefore, on the face of it, liable to an automatic life sentence. Two psychiatric consultants of unimpeachable reputation, approved by the Secretary of State, examine the defendant in depth and go into the witness box and express the opinion that in their judgment the defendant does not present a continuing danger to the public, although of course he should be punished for his second offence. The Crown calls no evidence to challenge that opinion and indeed accepts it.

Does the Minister suggest that in that situation the judge should be required to pass a life sentence? If so, does she suggest that that result would be just and that it would serve any public interest to sentence such a defendant to life imprisonment? If her answer is that a judge would not have to impose a life sentence in such a situation, what does the clause achieve, because in appropriate cases a life sentence can be imposed now and, if it is not when it should be, the Attorney-General can come to the court and ask for the substitution of such a sentence?

I described this case as hypothetical, but I also venture to suggest that it is realistic because, as Dr. Hood's evidence shows, most of those who would become subject in theory to the automatic life sentence provided by Clause 1 would not present a continuing danger to the public. Therefore, they would be in a position to call evidence of this kind, which is the very sort of evidence that the Parole Board relies on when it makes its judgment that a prisoner can be safely released. I am sorry to burden the Minister with a question of that kind, whether late in the evening or not, but it is an important question and it goes to the root of Clause 1 of the Bill.

Lord McIntosh of Haringey

My name has been cited by the noble and learned Lord, Lord Ackner, quite legitimately for what I said in the debate on the gracious Speech 1995. I hope that I have already dealt with the issue as I see it between that time and now in moving Amendment No. 1, because my view is that now, as then, the proposition put forward by the Home Secretary in his Conservative Party Conference speech in 1995 to which I was referring was wholly unacceptable in the sense that there was no judicial discretion of any kind proposed. As I have said, the White Paper moved, the Bill moved and now this Chamber in Committee today has moved still further—more perhaps, I acknowledge, on Clauses 2 and 3 than on Clause 1, but nevertheless it has moved.

I have proclaimed, and I believe, that the amendments which I moved and which the noble and learned Lord and other Members of the Committee were good enough to put their names to were constructive rather than wrecking amendments. To seek to take Clause 1 out of the Bill would be a wrecking amendment. For that reason I could not support it and I could not advise my noble friends to support such a move. I believe, as I think the noble Lord, Lord Carlisle, said, that the right way forward now is for the Home Secretary to calm down from what he was saying on radio this morning and what he said to Jack Straw in a letter yesterday and to recognise that 180 Members of this Chamber take a different view from the Government about the application of this part of the Bill and agree to talk to us about it. That would be a more constructive way forward than seeking to take Clause 1 out of the Bill.

10.15 p.m.

Lord Thomas of Gresford

The noble and learned Lord, Lord Ackner, in introducing this Motion, reminded me of how baffled the whole legal profession was in 1991 by the legislation passed at that time which directed a judge no longer to take into account the record of the offender before him, to ignore any further offences which would otherwise be taken into consideration and simply to sentence on the basis of the conviction for the particular offence that was before the court. Nobody could understand why suddenly, contrary to the whole history of the criminal justice system in this country, a person's past record was to be ignored. At sentencing conferences we were informed that that was because there were not enough prison places and that it was our duty, according to the Home Office, to reduce the prison population, to which, as I said at Second Reading, a very senior judge replied, "Now listen boys, if you want to send them to prison, if you think that that is what should be done, you send them to prison". That was quite contrary to the advice that was given to us by the Home Office at that time.

The next thing that happened was the virtual ending of the suspended sentence of imprisonment because sentences of imprisonment could be suspended only in special circumstances. Again, I think it was the noble Lord, Lord Carlisle, who reminded me of the last time I was involved in a case with a suspended sentence. It was a case involving a weighbridge clerk who was in charge of the crossing gates on a railway level crossing. He negligently forgot to shut the gates before a train came through, with the result that a lorry went through the gates and was struck by the train on the level crossing. The clerk was charged with manslaughter. After a lengthy trial, he was convicted of a lesser offence under the Railways Act. Then it came to sentencing. Here was a person who had had a momentary lapse of concentration. The systems employed by the company employing him were not particularly good and, as a result, that terrible accident occurred. There was the greatest difficulty in persuading the judge not to send the man to prison as a result of the lesser offence of which he had been convicted.

Therefore, when in this Bill we see "exceptional circumstances" being referred to again and when we hear the noble and learned Lord, Lord Donaldson, saying that a proportion of less than 1 per cent. would come within the definition of "exceptional circumstances", one realises just what draconian legislation is being proposed in this clause.

My charge against the Government is that they have come brazenly in this Bill to say to your Lordships that justice is expendable. In the interests, so they say, of the protection of the public and for the safety of the public, judges can be instructed to pass sentences which they believe to be unjust. That is a completely false antithesis. It is not necessary to pass unjust sentences to protect the public. The public can be protected in entirely different ways.

One way was developed earlier today by the noble and learned Lord, Lord Ackner, who referred to the reviewable sentence. I would prefer to call it a "public safety sentence". If we are to have honesty in sentencing, why do we have to call an indeterminate sentence a life sentence? That is not what the Government intend by Clause 1. Everybody knows that. They do not even pretend that it is so. Why do they not call it a "public safety sentence" which gives the public some idea of what it is all about? It would be a sentence to protect the public which would be indeterminate in length. However, that sentence would not be passed automatically or mandatorily, but only where positive evidence is presented to the court within a fixed framework which informs the judge that he is dealing with a person who is a potential danger to the public.

As the noble and learned Lord the Lord Chief Justice said a moment ago, where a mandatory life sentence was proposed a psychiatrist might say that, based on what he had done, his background or his personality, the person was not a danger to the public. If within the armoury of the judiciary there were a public safety sentence based on evidence before the judge everyone would understand it. Its limitations and extension would be understood. It would be understood that at some future date a person would have to satisfy an executive body that he was no longer a danger to the public and he would remain in prison until that could be established. That is a sensible approach to the kind of problems envisaged in the Bill, not to say that the protection of the public involves judges passing unjust sentences.

The use of the expression "life sentence" suggests to me that the proposal is made by the Government to get the headlines, "We are being tough", "We are passing life sentences" or "We are being honest in sentencing." It is nothing of the sort. I said earlier today, and I repeat it now: this Bill smacks of an election gimmick. It is most unfortunate that the Labour Party, at least initially, fell for it. Mr. Jack Straw adopted the same position as his opposite number Mr. Howard. It was only because of the pressure of much more sensible people in your Lordships' House that Mr. Straw changed his mind. He has allowed some concessions to be made by noble Lords who sit on the Labour Benches—although there are not many of them left this evening. He has not gone the whole way because, in squaring up for a fight in the election, he cannot be seen to be back-tracking in the face of Mr. Howard or of your Lordships. It is, however, sad that at the end of 18 years of Conservative government when crime has escalated for all kinds of reasons—I concede that it is not simply because of the Conservative Government—we enter an election period with a completely unwarranted attack on the judiciary. Before they were too hard; now they are too soft, as government policy has shifted.

At the end of the day, it is all about how best one protects the victims of crime. As a first priority the way to protect victims of crime is to try to stop it happening. One has a government that is about to commit £1 or £2 billion on the building of prisons for containment as opposed to spending the money in a constructive way on rehabilitation schemes, probation schemes, investment in a better police force, more policemen on the beat and better equipment. There are many other ways in which that money can be better spent than simply building prisons in which people are left to rot. I fully support the amendment.

Earl Russell

I am sorry that the noble Lord, Lord McIntosh of Haringey, is no longer in his place. This afternoon he covered himself in glory. I hope that tonight, or perhaps early next morning, he will sleep the sleep of the just. Nevertheless, I was rather sorry to hear him speak about wrecking amendments. It sounded as if he were already in office. He should recollect that the voters might send him to the political equivalent of Coventry; they might send him to Sheffield! Unfortunately, the precedents are against him. The most far-reaching amendment I have ever known tabled in this House was on the football membership Bill in 1990. That Bill consisted of a large and controversial Part I and a very small and totally uncontroversial Part II. An amendment was tabled to leave out Part I. It stood in the name of the noble Lord, Lord Graham of Edmonton. That ought to make the Government think twice before they talk about wrecking amendments. It is possible that in another Parliament the noble Baroness the Minister may be eager to eat some of her words about wrecking amendments.

The Bill has rested throughout on an argument for longer sentences; but we do not need this Bill to get longer sentences. Since the present Home Secretary came into office we have had a rapid lengthening of sentences in response to the perceived political will of the executive, just as the shorter sentences, of which the Home Secretary complains, were the result of judicial responsiveness to the wishes of previous Conservative Home Secretaries. That record does not suggest that the judiciary has the least desire for a conflict with the executive; therefore we do not need the Bill in order to get longer sentences.

Earlier today my noble friend Lord Meston murmured in my ear, "It's treating them all alike that is inconsistent." That is our case in a nutshell. One offence is not like another of the same name. Even with attempted murder, which is the worst in this list, the arguments which have already convinced the House about murder must also apply. I have heard the noble and learned Lord, Lord Ackner, ask how the Government's treatment of the case of Private Lee Clegg squares with their doctrine on the mandatory sentence for murder. That would have been equally true if the person shot by Private Clegg had survived and the case had been one of attempted murder. Some murders—for instance, the deliberate shooting of a night watchman in order to get the swag—may deserve very severe sentences indeed. But when one compares the actual case of a woman whose husband made a habit of ironing her with a hot iron and finally, at a moment when his back was turned, her patience snapped, it does not make sense to treat those cases on all fours. The point of the remark made by my noble friend Lord Meston was that treating them all alike is inconsistent.

The same applies even more clearly in respect of manslaughter. In the classic case, someone is punched on the jaw, falls over, hits his head on the fireguard and at that moment suffers a heart attack. It can be very difficult indeed to be certain what exactly is the precise cause of death. Treating such cases alike is surely absurd.

I agree in general with the arguments of the noble Lord, Lord Monson, about rape, but I must assure him that I was not discussing an actual case and would never presume to have done so. The only comment I would make about the actual case is that no one who had read only the press report and had not read the transcript knew the first thing about it. That is a matter we should bear in mind when we talk about the force of public opinion. What is clear is that the noble Lord is right in saying that one rape is not the same as another.

When we look at what judges are being asked to do, it is understating the case to say that they are being asked to pass sentences which they believe are unjust. They are being asked to do the wrong job. They are being asked to apply a formula, so they are being denied the basic skill of their office, which is to match the sentence to the offender and to the offence. If you cannot do that as a judge, you are pretty well redundant.

I remember being taught as a boy, very much to my surprise, that a clock which is stopped is right more often than one which is five minutes slow. If a mandatory sentence happens to be the correct sentence, it will be correct only in the same way as the clock which has stopped: purely by coincidence.

These issues have been discussed in literature as well as in law. It is the basic principle of "Measure for Measure", and that is a play about the attempt to impose a mandatory life sentence; in that case, the death penalty for being an unmarried father. In that case, there were innumerable circumstances why it would have been unjust to impose that penalty. The argument was put to Angelo that the Lord Angelo, like the Home Secretary, is precise. He redeemed his reputation for consistency, in the end, by refusing to ask for mercy for himself. I can see the Home Secretary doing just the same thing.

We are given a great case in terms of public opinion, but in terms of public opinion one must take account of the fact that information must be taken into account. The public does not know the circumstances of every individual case. If you read everything that appears in the newspapers about a case, you do not know anything about it. And that I do say from experience.

The point about the judge is that he has heard the whole of the evidence and, great though my respect is for public opinion, I do not think that an opinion formed in ignorance should carry as much weight as an opinion formed in knowledge. Also, public opinion is a great deal more fickle than one might think. The public is a sentimental animal and when it is shown a real injustice arising from a mandatory sentence, the Home Secretary may live to find that the Sun is as fickle as its heavenly namesake.

10.30 p.m.

Lord Hacking

I shall intervene briefly, as I did on the last occasion on which I spoke to the Committee about Clause 1.

I have a very clear memory of March 1964 in the Aylesbury Assize Court. As I recall, the noble Lord, Lord Richard, was also in that court on that day, and it was the end of the trial of the Great Train Robbery. There were too many defendants to be brought up together into the dock of that rather small Crown Court, as it now is, so the first of the offenders who was found guilty of participating in the Great Train Robbery, Mr. Wilson, I remember his name, was brought into court.

At that time, there were a number of options open to Mr. Justice Edmund Davies, the trial judge, one of which was to impose a life sentence. I remember the pause in the court, the quietness and stillness in the court as the judge came to pronounce the sentence itself. When the judge pronounced a sentence of imprisonment of 30 years, there was a tremble, not only from the offender himself, but from everybody else in the court room. He was a judge responding to the need, as he perceived it, not pushed by public opinion and only pushed—if he were pushed—by his own judgment, to impose a very severe sentence for a very serious crime.

Those of us who are opposed to mandatory sentences—I speak for myself—are not opposed on the right occasion to a very severe sentence. As the noble and learned Lord the Lord Chief Justice said, there are many occasions on which, in any event, if you are operating Clause 1, a very severe sentence, including a life sentence, should be imposed. That is not the issue. The issue is whether the sentence should be mandatory, irrespective of the circumstances. When I intervened earlier during discussions on Clause 1, the Committee was fuller and there was a kind of burble going on around me of disapproval. Therefore I was not able to develop the point properly. I shall only identify it now rather than develop it.

It seems to me that Members of the Committee have heard, not only in the debates on this Bill but also in the earlier debate of 23rd May of last year, many voices from very experienced judges who have given us their advice. I should point out that the other place did not have the advantage of hearing such advice. When we are given such advice, it seems to me that the only conclusion that we should rightly draw is that we should not have mandatory sentences. I wish only, therefore, to quote the words of the noble and learned Lord, Lord Taylor of Gosforth, as spoken in the debate that he initiated on 23rd May last. Although the noble and learned Lord was able to join us today he is, alas, no longer present in the Chamber. However, he stayed with us for a long time, as indeed he did on the Second Reading of the Bill. I hope, therefore, that Members of the Committee will allow me to remind them of a small passage of the noble and learned Lord's speech made on 23rd May. He said: Quite simply, minimum sentences must involve a denial of justice. It cannot be right for sentences to be passed without regard to gravity, frequency, consequences or other circumstances of the offending. To sentence a burglar automatically to a minimum of three years' imprisonment on a third conviction is to take no account of whether he is before the court for only three offences or for 30, no account of how long has passed between those offences, whether they involved sophisticated planning, drunken opportunism, and a host of other factors".—[Official Report, 23/5/96; col. 1026.] We are not talking about wrecking amendments; as I said earlier, I am more concerned about wrecking the established penal policy of my Government. We are talking about justice. That is why I attached my name to the Question, Whether Clause 1 should stand part of the Bill. I believe that the noble and learned Lord, Lord Ackner, has got it right. Although many noble Lords are not prepared to say so in the Committee, many of them say outside that the policy of mandatory sentences is not right. Indeed, I have not heard any developed argument from the noble Lords, Lord McIntosh and Lord Williams, about the virtues and benefits of mandatory sentences.

We are grateful to both noble Lords. Although the noble Lords will not acknowledge this—indeed, it is not perhaps appropriate for them to do so within their own party—we are grateful to them for the fact that they have influenced the Opposition. We know that as a result of their representations on the issue we had Amendment No. 1 not only tabled but also supported by the Committee. As I said, we are grateful to them for that. Nonetheless, the right position is to reject mandatory sentencing. That is why I support the noble and learned Lord.

Baroness Blatch

My noble friend will not be surprised to hear me say how depressed I was that, somehow or other, it is assumed that noble Lords who are against the Government on the matter possess intellectual validity for their arguments but that those of us who wholeheartedly support the Bill have not produced an intellectual argument to support their case. However, I leave it there.

We have spent a great deal of time on the Question, Whether Clause 1 shall stand part of the Bill. I should tell the noble and learned Lord, Lord Ackner, that, from where I stand, the description of him as a "war Lord" is not too far off the mark. Indeed, I feel that I am on the receiving end of a war of attrition by those who do not support the Bill's provisions.

There is a high degree of public anxiety about such crimes. There is considerable public support for these provisions as set out in the Bill, including a healthy majority of 200 from another place at a time when the Government enjoy no overall majority at all. Therefore it is right that the government of the day should reflect the anxiety of the public, put before Parliament possible remedies, and allow Parliament—as it has the sovereign power to do—to determine which way it will respond to that issue.

Clause 1 requires the court to impose a life sentence on anyone aged 18 or over who is convicted for the second time of a serious sexual or violent offence unless the court is of the opinion that there are exceptional circumstances which justify not doing so. In that event it must state in open court what the exceptional circumstances are. Serious offences for the purposes of Clause 1 include rape, attempted rape, unlawful sexual intercourse with a girl under 13, attempted murder, manslaughter, serious woundings and certain firearms offences. Life imprisonment is, of course, already the maximum penalty for all these serious offences but the courts rarely impose discretionary life sentences in such cases, even if the offender in question has previous convictions for similar offences.

In 1994—I make no apology for repeating the statistic—217 offenders were convicted of a serious violent or sexual offence having previously been convicted of it at least once before. Only 10 of them were sentenced to life imprisonment. The courts can and indeed do impose long determinate sentences on those convicted of serious, violent or sexual offences. But when the offender has served his sentence he has to be released even if there is reason to believe that he will commit further serious offences and, regrettably, that is exactly what happens in a significant proportion of cases.

This does not give the public the protection they need from violent and dangerous offenders. The mandatory life sentence will ensure in future that such offenders are released if and only if it is safe to do so. Those who are released will remain on licence and subject to recall. The procedures for setting tariff and determining release will follow those which currently apply to discretionary life sentences; in other words, the trial judge will set the tariff to be served for retribution and deterrence and at the end of that period, following an assessment of risk, the Parole Board will determine whether it is safe to release the offender. The Home Secretary of the day will play no part whatever in that process.

The court will have discretion to set aside the automatic life sentence in exceptional circumstances. There has been a good deal of debate in this Chamber and another place about exactly what that means. Without wanting to go over the ground in detail, in my view the exceptional circumstances formula strikes the right balance between maintaining the integrity of the policy and allowing the courts sufficient flexibility to exercise discretion in those occasional cases where the mandatory penalty would be manifestly unnecessary or inappropriate.

The noble Earl, Lord Russell, served only to confirm one thing to me; namely, that the misunderstanding of this Bill is profound on the part of some Members of the Committee. The noble Lord, Lord Meston, who is not now present, whispered into the ear of the noble Earl, Lord Russell, that the thing he does not like about this clause is that it treats all offenders alike. That could not be more wrong. When offenders come before the court they are not all treated alike. A case is heard, guilt or innocence is determined by the court and, according to Section 1, 2 or 3 of what will be the new Act, the minimum sentences apply; in other words, their sentences should not be fewer than three years in the case of burglary, or fewer than seven years in the case of persistent drug dealing. In the case of sexual and violent offences there will be an automatic life sentence with a variable tariff which can be lenient or long to reflect the seriousness of the crime. I hope the noble Earl will not intervene because it is important that we continue with what is left of this debate.

It is not true to say that there is a single sentence for all people. They are not treated the same. There is a variety of ways of treating them. No formula is applied. I do not know where the noble Earl, Lord Russell, got that from. It is an automatic sentence with a tariff which can he at the discretion of the judge. That is not a formula.

I do not know where the formula is in Clauses 2 and 3. Perhaps the noble Earl will write to me and point it out. As I said, it is a sentence not less than the prescribed minimum.

My noble friend Lord Carlisle referred to the Roger Hood research. I am aware of the Roger Hood research and have looked at it. The research clearly illustrates that the present system is not perfect. All those prisoners about which the Parole Board expressed concern would have been released at the two-thirds point of sentence. They would have been supervised for a period equivalent to only 8 per cent. of the sentence. Under the Bill's proposals, 10 per cent. of them would be subject to the automatic life sentence; others who were sex offenders could be subject to up to 10 years' supervision on release; and the others would be subject to a period of supervision equal to 25 per cent. of the sentence. The public will be better protected, not worse, under the Bill's provisions.

The noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Ackner, referred to indeterminate reviewable sentences. An automatic life sentence as provided under Clause 1 of the Bill provides a guarantee of lifetime supervision on release. An indeterminate reviewable sentence is very little different from a life sentence but it does not provide a guarantee of lifetime supervision. To that extent it offers less than the automatic life sentence.

The noble and learned Lord, Lord Bingham, posed a particular case and asked me to comment on it. In the absence of exceptional circumstances, the court would impose a life sentence under Clause 1. That caveat is important. In the absence of exceptional circumstances, it would impose a life sentence under Clause 1. It would set the tariff according to the seriousness of the offence. Thereafter the question of release would depend upon the risk to society then posed by the offender. If the psychiatric assessment were correct, the offender might expect to be released on tariff expiry. But the offender would have committed two serious sexual or violent offences; and the question of risk would need to be considered carefully at the proper time before release. However, under our proposals, if the medical evidence to the judge hearing the case were sufficient to allow the judge to consider that it constituted exceptional circumstances, that would be a matter for the judge.

10.45 p.m.

Lord Bingham of Cornhill

Would it be an exceptional circumstance that there was clear and incontrovertible evidence that the defendant presented no serious continuing risk to the public?

Baroness Blatch

No, not on that particular fine point because the person has committed two serious sexual and/or violent offences. He is guilty of those violent offences. The question of no risk and other factors taken together may constitute exceptional circumstances. But the judgment about exceptional circumstances—it is the reason we left it as we did in the Bill—is for the judge to make. It would be subject to possible appeal by the Attorney-General. But if the judge felt that the circumstances, the wilfulness and the offences committed were sufficient to bring about a conviction, he would invoke the life sentence unless he deemed that there were exceptional circumstances.

Perhaps I may pose a question to the noble and learned Lord. I listened carefully, as I always do, to the noble and learned Lord, Lord Bingham. I feel that the contributions by the noble and learned Lord must be taken seriously not only because I believe that he is an eminent and very respected Member of this House but because of the position that he holds. He spoke strongly in support of the amendment which affected Clause 1 earlier today. I assume that the noble and learned Lord was satisfied that the amendment would not require judges to act unjustly. If the noble and learned Lord says that is not true, then it poses another question.

Even if psychiatrists say at the trial that they are satisfied that there is no risk to the public, what is the evil that arises in having that issue looked at again when the fixed period is served? I remind the noble and learned Lord that I referred specifically to subsection (2) of the new clause before Clause 1, which states: 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". My noble friend Lord Carlisle referred to earned early release. My noble friend was right in his assumption that it would not apply for lifers. Earned early release arrangements do not apply to those who receive an automatic life sentence under Clause 1. They do not apply to any life sentence prisoners. There is no difference from the present arrangements. The present early release provisions, as set out in the 1991 Act, do not apply to life sentence prisoners; and the incentive for good behaviour is parole, once the period of the tariff is served. That is the case now, and remains so under the Bill.

The noble Lord, Lord Thomas of Gresford, accused the Government of a mere election gimmick. There is an arrogance about his remark. Again, it links to a point I made about my noble friend Lord Hacking. The idea is that those who are against the Bill are in some way virtuous and those of us who believe—I use the word because I am a believer in the Bill—that the Bill addresses a serious public protection issue are only playing politics.

I came to this House in 1987. The one thing that deeply impressed me about it, and which I thought was a characteristic of this place, is that we respected each other's genuinely held views. That has always guided me. It is part of the civility of this House that can be carried on through very serious debates. But continually, throughout the day, there has been a suggestion that, somehow or other, those of us who believe in the Bill are playing politics, being superficial and playing to a gallery out there. But some of us genuinely believe that there is an anxiety among the public at large that needs to be addressed. We believe the Bill is a genuine attempt to address that anxiety.

The noble Lord, Lord McIntosh, said that 180 people in this Chamber did not take the same view as the Government. I have to concede that; it happened earlier today and we all witnessed it. But 172 people did take the same view as the Government, so the opposition was not quite so overwhelming as the noble Lord suggested. To return to a point I made earlier, the Bill came to this House from another place, under a Government who do not enjoy an overall majority, with a majority of 200. We cannot ignore that.

The noble Lord, Lord McIntosh, also referred to justifying his own change of heart on these matters. As long ago as the initial introduction of the White Paper, reference was made to "exceptional circumstances" being considered to be part of the Bill. Some of the noble Lord's remarks have been made since that publication.

People who repeat sexual and violent offences are causing great grief in our community. Clause 1 is a proper response to that. The key rationale for Clause 1 is that people who represent a risk to the public are not released back into the community without a risk assessment; and when they are, if at any time after release they begin to pose a further risk to the public, they can be recalled. I believe that this is a genuine attempt to address a very real problem in the community. I hope that the clause will remain part of the Bill.

Earl Russell

As we are in Committee I will say that we accept that we all disagree with each other's arguments, but when someone chooses in a speech to attack the arguments of someone else, especially if that attack is based on a misunderstanding, it is a lapse from the normal standards of courtesy of this House not to allow a reply.

The noble Baroness thought that I entirely misunderstood the matter in saying that there was not a formula. If the mandatory sentence is not a formula, I do not know what is. Of course I understand the difference between the mandatory sentence and the tariff. I was reluctant to attribute to the noble Baroness the view light-heartedly suggested by the noble Lord, Lord Williams of Mostyn, at Second Reading, "I sentence you to life. By the way, you can expect to serve 18 months." But if that really is her view, I cannot see how it is compatible with the principle of honesty in sentencing.

Lord Ackner

I shall spend but one minute in my reply. At 11 o'clock in the evening, it would be irresponsible to divide the House. But I am bound to say that, on the strength of the observations made, it has been a great temptation.

When the Home Secretary reads, as I hope he will, what has been said in the past hour, I hope that his belief that the Bill will increase confidence in the criminal justice system will be changed. If he maintains that belief then he is deluded.

Clause 1, as amended, agreed to.

Clause 2 [Minimum of seven years for third class A drug trafficking offence]:

[Amendment No. 16 not moved.]

Lord Carlisle of Bucklow had given notice of his intention to move Amendment No. 17: Page 2, line 38, after ("offences") insert ("other than offences in respect of which the offender is a rehabilitated person for the purposes of the Rehabilitation of Offenders Act 1974").

The noble Lord said: I rise in hesitation. In some ways, this was a fallback position if the first amendment was not accepted. I would be minded to carry the matter no further at this hour were it not that the noble Lord, Lord McIntosh, indicated his wish to speak on this amendment when it was reached. He said that we would have a debate on the matter. I have not attempted to move the amendment and have not decided whether to do so. Perhaps I could have an indication as to whether the noble Lord's position remains as it was or whether, in view of his success earlier, he is willing to see what the Government's reaction is before deciding whether the amendments should be proceeded with. I should be happy, since he has not attempted to indicate otherwise, not to move my amendments at this stage but to keep them in reserve for another time.

[Amendment No. 17 not moved.]

Lord McIntosh of Haringey moved Amendment No. 18: Page 2, line 42, leave out from ("years") to end of line 43 and insert ("except where the court is of the opinion that there are specific circumstances which—

1. (a) relate to any of the offences or to the offender; and
2. (b) would make the prescribed custodial sentence unjust in all the circumstances.").

The noble Lord said: I spoke to this amendment with Amendment No. 1. I beg to move.

On Question, amendment agreed to.

[Amendment No. 19 not moved.]

Lord McIntosh of Haringey moved Amendment No. 20: Page 2, line 45, leave out ("exceptional") and insert ("specific").

The noble Lord said: I spoke to this amendment with Amendment No. 1. 1 beg to move.

On Question, amendment agreed to.

[Amendment No. 21 not moved.]

Lord Hacking moved Amendment No. 22: Page 3, line 6, at end insert— ("(4A) Where a person is convicted of an offence which falls within subsection (1) above, and the conditions mentioned in section 37(2) of the Mental Health Act 1983 are satisfied, the court may if it sees fit conclude that the satisfaction of those conditions constitutes exceptional circumstances which justify it not imposing a custodial sentence for a term of at least seven years.").

The noble Lord said: This amendment is coupled with Amendment No. 30. I did not address the issue when I moved my first amendment, Amendment No. 9. However, noble Lords have had an opportunity to comment on it and I was able, at the end of our debate on Amendment No. 9, to refer to the issues that would arise on Amendments Nos. 22 and 30 and the consequential amendments.

I wish to ask my noble friend, who has so far not responded on the question, whether she will give further consideration to the serious issues relating to mental illness and the application of Clauses 1, 2 and 3.

The other point I wish to make is that although I passionately disagree with the Bill and identify it as a serious deviation from the established penal policy of the Government, at no time has the word "election" slipped from my mouth and at no time have I suggested that either political party is in any way motivated by the oncoming election on the political position that they take on the Bill. Nor have I ever attacked the integrity of those who disagree with me. I have never attempted to be sanctimonious in this Chamber. I am not being sanctimonious now. I am not intellectually critical or otherwise critical of my noble friend who so patiently is at the Dispatch Box on this Bill. That is not my position.

I fundamentally disagree with the Bill, not only Clauses 1, 2 and 3 but many other parts of it, including the treatment of the parole system and all kinds of other matters. I believe that the Bill is deeply mistaken. I do not join in any intellectual or other criticism of my noble friend, except that I must say that I think she is wrong. I beg to move.

11 p.m.

Baroness Blatch

I rise only because my noble friend asked me a question. But I must also say that the Government have been accused of politicking and, as I am a member of that Government, I respond to that point. I respond to my noble friend's point because in the contribution that he made before this last one he said that he had not heard one single argument to defend the measures in the Bill.

Perhaps I may say that throughout Second Reading and in the course of responding to the amendments today I have done my best. I can only say that my noble friend dismisses the validity of my arguments. But I can give him an absolute assurance that I shall follow what I have done throughout any Bill on which I have worked, which is to continue to look at all the issues. I do regard very seriously the issue of how we treat mentally disordered offenders. I want to read all that has been said, including the contribution of the noble Lord, Lord Alderdice, in particular. Of course I can give my noble friend that assurance.

Lord Hacking

I am very grateful for that assurance. Inviting my noble friend to speak has justified me very briefly moving this amendment. Perhaps I may just correct one matter. Of course I have heard arguments in favour of the Bill, which has been presented very ably by my noble friend. It was just that I was having a little tease, if I may say so, with the noble Lords, Lord McIntosh and Lord Williams. I have not heard in our debates any passionate enthusiasm or indeed any very strong positive arguments in favour of mandatory sentencing. I hope I may be forgiven for that tease and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 23 not moved.]

Clause 2, as amended, agreed to.

Clause 3 [Minimum of three years for third domestic burglary]:

[Amendments Nos. 24 and 25 not moved.]:

Lord McIntosh of Haringey moved Amendment No. 26: Page 3, line 31, leave out from ("years") to end of line 32 and insert ("except where the court is of the opinion that there are specific circumstances which—

1. (a) relate to any of the offences or to the offender; and
2. (b) would make the prescribed custodial sentence unjust in all the circumstances.").

The noble Lord said: I spoke to this with Amendment No. 1. I beg to move.

On Question, amendment agreed to.

[Amendment No. 27 not moved.]

Lord McIntosh of Haringey moved Amendment No. 28: Page 3, line 34, leave out ("exceptional") and insert ("specific").

The noble Lord said: This amendment was spoken to with Amendment No. 1. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 29 and 30 not moved.]

On Question, Whether Clause 3, as amended, shall stand part of the Bill?

11.4 p.m.

Lord Monson

I do not feel that we can allow this very important clause to go through without a brief comment. I do not have quite the same objection to Clause 3 as I did to Clause 1, perhaps because like many noble Lords—most noble Lords, I suspect—I have been the victim of burglary on more than one occasion. So I declare an emotional interest as well as a partial financial interest in that insurers often impose a hefty excess.

Is not there another possible avenue apart from that of imposing a mandatory three-year minimum sentence for persistent burglars? It is a fallacy that most burglaries are committed by teenage amateurs, as a number of Members of the Committee have said this afternoon and others have suggested elsewhere. It may be the case that teenage amateurs are mainly involved where housing estates are concerned and in some other urban areas, but it is certainly not the case in rural Britain.

We are plagued by highly professional individuals in their 20s, 30s and 40s. They carefully spy out the ground beforehand with binoculars or telescopes; they are equipped with advanced electronic equipment; they drive expensive Volvo estate cars or sometimes Peugeots or Mercedes, but more often than not nowadays, powerful four-wheel drive, off-the-road vehicles so that they can make their approach and getaway across fields.

Far too little use has been made of the power to confiscate the tools of their trade. I urge the Government to remind the judiciary of those powers and to make fuller use of them. Unlike prison, that costs the taxpayer nothing and may ultimately even benefit the taxpayer as well as making life much more difficult for the criminal.

Baroness Blatch

There is nothing in Clause 3 that prevents the courts from dealing very severely with people who indulge in sophisticated and organised crime. Indeed, we have done a great deal about sophisticated and organised crime and have constantly tried to strengthen the measures in that regard. We have also done a great deal in relation to giving the power to courts to confiscate the ill-gotten gains of crime.

However, the courts are not using maximum sentences for burglary when it is at their disposal. One of the reasons this Bill is before the Committee is to at least impose a floor on the sentences that are passed; that no sentence shall be less than three years. We hope that more use will be made of the maximum sentences where the crimes are as serious as the noble Lord describes.

Clause 3 as amended, agreed to.

Clauses 4 to 6 agreed to.

Lord Williams of Mostyn moved Amendment No. 31: After Clause 6, insert the following new clause—

GUIDANCE ON SENTENCING

(".—(1) Without prejudice to any other power in that regard, the Court of Appeal shall consider and review sentencing practice and policy and from time to time issue guidance in respect thereof, including guidance on progression in sentencing. (2) Without prejudice to any rule of law, a court in passing sentence shall have regard to any relevant guidance issued under subsection (1) above.").

The noble Lord said: This is an amendment to deal with a greater use by the Court of Appeal Criminal Division of its guideline powers. Sentencing of offenders ought to be consistent, reasoned, open and predictable.

The former Lord Chief Justice, the noble and learned Lord, Lord Lane, set down guidelines for serious offences like rape, incest, drug trafficking and social security fraud; the noble and learned Lord, Lord Taylor of Gosforth, following, issued guideline judgments on aggravated vehicle taking, causing death by careless driving and so forth. But there are large areas of sentencing, mainly relating to the lower levels of Crown Court work—which are very important, as the Minister said (and I agree); burglary, theft, deception and handling—and in particular the vast bulk of criminal work (95 per cent. plus) done in the magistrates' courts, where no guidelines exist.

The purpose of the amendment is to introduce into the Bill a specific encouragement in statutory form that, the Court of Appeal shall consider and review sentencing practice and policy and from time to time issue guidance in respect thereof", with the consequence, in subsection (2), that, a court in passing sentence shall have regard to any relevant guidance". I shall be grateful for the Minister's views on this. It is our testing amendment to see whether or not the Government's view is that the Court of Appeal should intervene over a greater area in terms of guidance. I beg to move.

Lord Hacking

I want briefly to support this amendment. It seems to me that this is the right way forward. The problems have arisen during certain periods over the past 20 years where courts have not had sufficient guidance on sentencing. There have been occasions when sentences have been very topsy-turvy: sometimes sentences have been far too harsh and on other occasions it has been the other way round. It seems to me that for the Court of Appeal to play an active part in the way proposed by the noble Lord, Lord Williams of Mostyn, is a healthy, practical and sensible way forward.

Lord Thomas of Gresford

I wish to support the amendment and would add only this. The Minister must believe in the Bill from the passion and the work that she has put into it. I commend her for it.

Baroness Blatch

I do, I do. I agree that inconsistent sentencing can undermine public confidence in the criminal justice system. It is, of course, important that criminals should receive punishment which is appropriate for the crime and which as far as possible achieves consistency. That is exactly what the Crime (Sentences) Bill is about. In relation to certain carefully targeted categories of serious, dangerous and persistent offenders we believe that the public needs greater protection. That is why we propose the introduction of mandatory sentences. However, that does not mean that a case has been made for restrictive sentencing guidelines across the board.

Of course there is a role for guidance to be available to the courts. The lower courts are already assisted in sentencing by guidance given by the Court of Appeal through its judgments on the appropriate penalty range for particular offences. This is a practice which has been considerably developed in recent years. Court of Appeal guidelines have been particularly useful in some areas in ensuring the courts take a more consistent view of particular offences and reflect levels of public concern in their sentencing practice.

To take an example, the Court of Appeal's 1986 guideline judgment in the case of Billam suggests starting points for sentences for rape. The judgment states that for a rape with no aggravating or mitigating factors, the starting point should be five years' imprisonment. That is for a contested case; it would be a little less where the offender pleads guilty and the victim is spared the trauma of appearing in court to give evidence. These guidelines have had the effect of very significantly increasing sentence lengths for rape, the average sentence length being 76 months in 1995. Another example is the R v. Aramah which indicates the appropriate penalties, whether imprisonment or fine, for offences involving the importation, supply and possession of Class B drugs according to the scale of distribution and quantity of drugs involved. For example, it suggests that 10 years' imprisonment is appropriate for massive supplies of cannabis for those playing anything more than a subordinate role and that a fine is appropriate for possession of small amounts. It is important to remember, however, that Court of Appeal judgments can only be guidance: in each case the court must weigh up all the circumstances and decide.

Currently, any Court of Appeal judgment in an appeal against sentence, whether it allows or dismisses an appeal, gives a clear indication of its opinion on the sentence passed in the lower court. The judgment will explain the reasoning behind the court's decision. Court of Appeal judgments are held as authorities for cases in which the circumstances are similar. The cases I have quoted clearly show that they can be used as guidance as to appropriate sentence lengths for different categories of offences and different levels of seriousness. Furthermore, the Judicial Studies Board plays a valuable and continuing role in disseminating Court of Appeal guidance to the courts and in training the judiciary.

The current system works well in targeting the areas where inappropriate or inconsistent sentencing in the lower courts has highlighted the need for some central guidance. At the lower end of the scale, the Magistrates' Association issues guidelines on sentencing to its members which for specific offences give appropriate sentences for cases of average seriousness and indicate aggravating and mitigating circumstances.

I believe that the roles that the Court of Appeal and Magistrates' Association already play in providing guidance are important and effective in areas of sentencing which cause most difficulty. The clause would require the Court of Appeal to consider sentencing practice generally, even in areas where scrutiny is not required. It would greatly, and unnecessarily, increase the burden on the court. The new clause seeks to give the Court of Appeal a statutory role in sentencing policy. However, sentencing policy is a matter for the Government and Parliament.

We are satisfied that the present system is sufficiently effective in ensuring consistent and appropriate sentencing. Where there have been grounds for concern in particular areas, we have not hesitated to act; for example, the proposals for automatic life and mandatory minimum sentences in this Bill. The clause would unnecessarily introduce statutory duties without adding to the present arrangements.

I ask the noble Lord not to press the amendment for two reasons. First, there are too few noble Lords present to go through the Lobbies. Secondly, it would be helpful to have the views of some of the noble and learned Lords who have taken part in our debates on the extended role that is being suggested in the amendment.

I end with one final point. In determining sentencing policy—that is government and Parliament at the end of the day or, as my noble friend would say, "in the final analysis"—the important thing is that they can look across to the Appeal Court for anything which might influence that policy.

11.15 p.m.

Lord Williams of Mostyn

The Minister has asked me not to press matters to a vote and, of course, whenever she asks me not to do something I readily agree. I entirely agree with the Minister's comments about the Judicial Studies Board. It has done tremendous work under Lord Justice Henry and now under the chairmanship of Lord Justice Judge. There are one or two of us here who for some years have been saying that it should be better funded; that the training of judges should be much more consistent and coherent.

But that is not the point that I am making. I did the Minister the courtesy of listening with great care to what she said. She said that sentencing policy was not a matter for the Court of Appeal. But earlier she said, commending the Court of Appeal, that it had rightly set down policy guidelines in respect of rape and drug trafficking on a serious basis. I detect possibly, even at this time of the night, a modest internal inconsistency. If, as the Minister says, guidelines have worked well in rape, incest, drug trafficking and the other cases which I mentioned earlier, why should they not be of reasonable practical utility in the great span of offences not presently covered by guidelines such as burglary, theft, deception and handling? I yield to no one in my respect for the Magistrates' Association, but I simply suggest that the weight of the Court of Appeal might usefully be directed to these areas. Since the Minister asked me so nicely, I shall not put this amendment to the vote.

Amendment, by leave, withdrawn.

[Amendment No. 32 not moved.]

The Earl of Courtown

I beg to move that the House do now resume.

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

House resumed.

House adjourned at eighteen minutes past eleven o'clock.