Crime and Punishment (Scotland) Bill

HL Deb 04 March 1997 vol 578 cc1792-834

8.50 p.m.

House again in Committee on Clause 1.

Lord Hope of Craighead moved Amendment No. 23 Page 3, line 11, leave out from ("murder,") to end of line 12.

The noble and learned Lord said: In moving Amendment No. 23, I shall speak also to the five amendments in my name grouped with it—Amendments Nos. 25, 28, 31, 36 and 39. The amendments relate to various matters arising on page 3 of the Bill in relation to the proposed Schedule 5A. The first five deal with a list of qualifying offences and the last raises an issue in regard to relevant offences. Some of the points are purely drafting suggestions; others raise issues of perhaps greater substance. I shall try to deal with them briefly.

Amendment No. 23 relates to paragraph 2 in Part I which lists the Scottish offences which qualify for the mandatory life sentence. That group deals with attempted murder, to which is added the phrase, incitement to commit murder or conspiracy to commit murder".

Amendment No. 23 seeks to delete that reference.

So far as I am aware, incitement to commit murder in Scottish terminology is built into the notion of "art and part" which was referred to earlier. The question I pose for the Lord Advocate is whether it is necessary to repeat that phrase (which, for understandable reasons, is found in the English equivalent of this paragraph) in legislation which is intended to apply to Scotland. It would be enough to rely on the doctrine of concept and on the fact that in relation to Scottish practice an incitement to commit murder will probably involve the offender in a charge of attempted murder—art and part—with the principal actor. Alternatively, it may be that he will be found guilty of conspiracy to commit murder, which is why I bring that into the amendment. I would be content for the words "incitement to commit murder" to be deleted and the reference confined to attempted murder and conspiracy to commit murder. That would be more consistent with what I understand Scottish practice to be.

Amendment No. 25 relates to paragraph 5 which deals with sodomy or attempted sodomy. The phrase brought under scrutiny is the concluding passage of the paragraph which talks about it applying in either case, where one party does not consent. I confess that I find it difficult to follow the phraseology. The amendment is intended to try to simplify the concept in accordance with what I understand to be normal prosecution practice; that is, to bring these crimes before the court where a specific individual is named as a complainer. It would be easier to understand in practice if the wording I suggest were to be substituted.

Amendment No. 28 deals with the group of provisions involving the common law crime of assault. Paragraph 6(a) deals with the question where the assault has been aggravated in certain circumstances. It deals with aggravation by assault to severe injury and aggravation to the danger of the victim's life. It is a common experience in the Scottish courts to find a charge includes also as an aggravation, in suitable cases, assault to the permanent disfigurement of the victim.

I raise that point because it would be better to cover all the various aggravations and avoid the possibility that a jury, in returning its verdict, might delete the bits that are in the Bill at the moment and leave standing an aggravation by permanent disfigurement which, if I understand the philosophy of the paragraph, is intended to be included. It is to safeguard the possibility of some distortion resulting from a jury's verdict, or possibly the way in which a plea has been negotiated, that it would be wiser to make reference here to "permanent disfigurement".

Amendment No. 31 is a small point and relates to the wording of the paragraph relating to robbery where the offender, had in his possession a firearm or an imitation firearm".

The wording which causes me some difficulty is the phrase, at some time during the commission of the offence"; That sounds too specific. I would prefer the word "any" to be added. Indeed, I believe there is a proposal to delete the words altogether. The broad idea is simply that if a robbery has been committed, where at any time in the course of the offence a firearm or an imitation firearm had been produced, that would be an aggravation which would qualify for the purposes of the mandatory life sentence. I hope that the Lord Advocate will be able to consider an improvement to the wording to that effect.

Amendment No. 36 raises a point more to do with prosecution practice than anything else. It is designed to deal with paragraph 10 in the proposed schedule. That brings into the list the offence, unlawful intercourse with a girl under the age of thirteen years".

In previous amendments, which have not been accepted, consideration was given to the issue of setting a minimum age on the commission of the first offence. That was raised because of the provision in Clause 1 which qualifies the first offence irrespective of the age of the offender at the time of the commission of the offence.

I am raising the question of what is to be done in a case where somebody has committed this offence while under the age of 16 years. It may be that the Lord Advocate will tell me that it would not be the policy of the Crown to prosecute in the High Court in those circumstances. However, if it is the policy, it would seem a harsh measure to include that offence in that case. It is with a view to finding out what the Lord Advocate's position is on that specific matter, without distorting his general policy on the age relating to the first of those two offences, that I tabled the amendment. I do not need to dwell on the circumstances in which the offences are committed. I have had experience as a judge of cases where the offence was committed and both the complainer and the offender were comparatively close in age. That raises an issue which deserves consideration.

Amendment No. 39—the last amendment in this group in my name—relates to what I might describe as the Gretna Green problem. It is a matter to which I alluded at Second Reading. In the Scottish list we included the offence of, lewd, indecent or libidinous behaviour or practices".

As I read it, the English list contains no counterpart. It strikes me as unsatisfactory that one could have an offender who had committed those offences or their equivalent south of the Border, who was then found to have committed one offence north of the Border and who does not qualify for the mandatory life sentence whereas somebody who was just north of the Border and in the same position did so qualify.

I do not pretend any expertise in the nature of these offences in England. But for the purposes of discussion I have introduced Sections 14, 15 or 16 of the Sexual Offences Act 1956. At first sight they seem to have some relationship to the Scottish offence of, lewd, indecent or libidinous behaviour or practices"; and Section 1 of the Indecency with Children Act 1960. Those lists are already far too long and, as the noble and learned Lord pointed out earlier, to some extent I am to blame for lengthening them by previous comments. But if we are to have a list of this kind, we should make every effort to see that it is as complete and logical as possible. If that is not achieved, cases will be thrown up which will bring the new process into disrepute. There is enough risk of that already, but it would be unfortunate if, through possible defects in the draftsmanship, possible omissions, or possible failures to match the position in Scotland with that in England, there were such imperfections. With those rather broad thoughts in mind, I beg to move.

9 p.m.

Lord Sewel

I refer briefly to Amendment No. 30 and to an issue which is similar to that to which the noble and learned Lord, Lord Hope, referred. I refer to the phrase "at some time". We must ask whether that phrase is necessary and whether it adds anything to the clause. Our concern is that the inclusion of that phrase opens up the possibility of the relevant period stretching back indeterminately from the actual committing of the offence to, at some time during the commission of the offence". Could "at some time" stretch back so far as to cover someone who happened to have a gun at home when the act was planned or thought about? What about the situation where an offender is driving to commit a robbery and has in the boot of the car his son's or daughter's toy gun or cowboy pistol, leaves the car some distance from the scene of the crime and proceeds to enter the bank and to rob it without the use of that gun, which he did not know was in the car?

The phrase "at some time" seems to take the period under consideration back to much earlier in the formulation of the act than the actual commissioning of the act. Therefore, we must ask whether those words add anything of importance to the clause.

Lord McCluskey

I regret to say that once again I deplore the grouping. Each of the amendments raises a different point. I support Amendment No. 23 which, as the noble and learned Lord explained, seeks to delete the words "incitement to commit murder" and so on. For the reasons outlined by the noble and learned Lord, I shall be happy to see that deletion. However, I do not support Amendment No. 28, which relates to "the victim's permanent disfigurement". As a matter of law, as I understand it, a permanent disfigurement means simply a scar. Therefore, quite a small scar, if it is permanent—and it normally will be—could be described as an aggravated assault and would accordingly extend the list substantially. That is quite distinct from the matter dealt with in Amendment No. 25.

I also support Amendment No. 36, as is obvious from my earlier remarks on one of my own amendments. I propose in due course to deal with the other amendments, but I repeat that it does not seem to make any sense to group amendments simply on the basis that they deal with qualifying offences under Part I of what will be new Schedule 5A.

Lord Mackay of Drumadoon

The amendments in this grouping to which noble Lords have spoken seek to widen the scope of the list in the schedule in some respects and seek in other respects to reduce its scope. I should like to deal with the amendments which have been mentioned specifically. I hope that I have a note of all of them, but if I trespass into debates which have yet to come, I apologise.

I turn first to Amendment No. 23, which was moved by the noble and learned Lord, Lord Hope. I am grateful to the noble and learned Lord for his explanation of why he thinks the amendment is necessary. The Government, however, are not persuaded that it is necessary and I am in a position to inform the Committee and the noble and learned Lord that in the course of the past few months there has been a case in Scotland in which a single accused was prosecuted—and, as I recall it, pleaded guilty—for incitement to commit murder and was sent to prison. I confess that I have no recollection of having heard of such a case previously, but that was a clear case of that particular crime. It was a serious matter which merited the accused being sent to prison. If the noble and learned Lord is interested, I shall be happy to provide him with the details of the case which are now in the public domain. For those reasons, the Government are not persuaded that that amendment should be accepted.

I turn now to Amendment No. 25, which also stands in the name of the noble and learned Lord, Lord Hope. This amendment deals with a point which is similar to that raised in an amendment which stands in the name of the noble Lord, Lord McCluskey, and to which we shall come in due course. The intention of the Bill as currently framed is that only convictions for non-consensual sodomy should be relevant for the purposes of Clause 1. The wording currently used seeks to achieve that objective by stating that sodomy or attempted sodomy shall be a qualifying offence where one party does not consent. In the context of sodomy, it is clear that the person against whom the act of sodomy is perpetrated—or the victim—is the party whose lack of consent is relevant. The person who perpetrates the act clearly always consents to it. Replacing the reference to the "party" who "does not consent" with a reference to "the complainer" who does not consent will, it is believed, be of little, if any, practical effect.

To take a fairly technical view of the matter, in some cases the victim of the act of sodomy does not complain to the authorities about the behaviour of the offender and it comes to the attention of the police by some other route. While such individuals may in some instances be commonly referred to as complainers, on one view they are not. For those reasons, the Government are not persuaded that the amendment is either necessary or helpful. As we are dealing with fairly technical matters, I undertake to read carefully what has been said about this and other amendments. I am open to further persuasion by informal means that the matter requires to be looked at further.

I move to Amendment No. 31, also in the name of the noble and learned Lord, Lord Hope of Craighead. The amendment proposes that the words, where at some time during the commission of the offence, the offender had in his possession a firearm should be changed to "where at any time". The amendment spoken to by the noble Lord, Lord Sewel, also raised this particular issue. The view of the Government is that in this context "some" is the same as "any". While I do not believe that there is anything between us in principle, we are not persuaded that the change is necessary. However, as the point has been raised I am happy to consider it further.

The noble Lord, Lord Sewel, said that the use of the words "at some time" might lead to confusion as to whether or not the offender was guilty of a qualifying offence, as set out in paragraph 7 of the schedule. He cited the example of an offender who had a gun at home and was thinking about committing a crime or had a gun in his car and drove to commit a robbery but did not use it. In the latter example the gun was only an imitation.

Lord Sewel

I referred to his son's cowboy gun.

Lord Mackay of Drumadoon

I am obliged to the noble Lord. These are practical issues that require to be addressed in the context of establishing questions of guilt or innocence. From time to time when charges of assault and robbery are prosecuted there is an issue as to what time the commission of the crime begins and whether those involved in it as principals or under the doctrine of art and part fall properly to be convicted or should be acquitted because of an insufficiency of evidence. Obviously, the Bill has no plans to change the law in that respect.

The next amendment referred to by the noble and learned Lord, Lord Hope, was Amendment No. 36 which he correctly indicated touched upon issues of prosecution policy as much as anything else. The amendment does not seek to delete the offence from the list but to qualify it so that such offences—unlawful intercourse with a girl under 13 years of age—will count as qualifying offences only where the offender has attained the age of 16 years at the time of the commission of the offence. While one appreciates the concern of the noble and learned Lord that one should not deal harshly with youngsters who may almost unwittingly commit this offence, Clause 1 is directed to offenders who have been convicted twice in the High Court of offences. This offence would have to arise as the first of the qualifying offences for this amendment to have any relevance.

If such an offence were serious enough to warrant prosecution in the High Court, in accordance with the approach that the Crown takes to the prosecution of youths of that age, and it resulted in a conviction, it would be serious enough to warrant inclusion in the list, albeit that the circumstances of the particular offence might be relevant to the question of exceptional circumstances as discussed earlier. For example, one could imagine a 15 year-old youth being found guilty of an offence involving a girl of eight or 10 years of age. While not being prosecuted and convicted of rape, it could result in a conviction for a contravention of Section 5 of the 1995 Act. For that reason the Government believe that it should remain on the list. I hasten to assure the Committee that only in very few cases would offenders under 16 years be prosecuted in the High Court for that particular statutory offence.

I move now to Amendment No. 28 which seeks to add a reference to "permanent disfigurement". The Government believe that on its own permanent disfigurement is not a sufficiently serious aggravation to warrant inclusion in the list, for reasons similar to those referred to by the noble and learned Lord, Lord McCluskey. Any assault resulting in serious injury would be relevant to severe injury to the victim or to the danger of his life, irrespective of the permanent disfigurement which might arise.

I turn finally to Amendment No. 39. I understand the concern expressed by the noble and learned Lord, Lord Hope, that the Scottish common law offence of lewd, indecent and libidinous practices or behaviour, which can be committed against children only, is broader than any offence in the English list of offences. Conduct which would result in such a conviction in Scotland would not result in such a conviction in England of an offence which would be a qualifying offence in England and Wales.

As I said earlier today, achieving a mirror image between the two lists is just not possible. The approach we have instead followed is to include in the lists for both jurisdictions offences which we consider to be of the same order of gravity or seriousness. Widening the list of relevant English convictions in the Bill by adding the four offences suggested by the noble and learned Lord would widen the scope too far.

I have looked in detail at the particular provisions in the Sexual Offences Act 1956 and the Indecency with Children Act 1960, to which the amendment refers. Offences against the first Act can be committed against adults as well as children. None of the offences specified attracts the penalty of life imprisonment, which is the common characteristic which runs through the lists in Scotland and in England and Wales. Indeed when one turns to the Indecency with Children Act 1960, the offence mentioned attracts a maximum penalty of two years' imprisonment.

The noble and learned Lord will be aware that there is currently under way in England a review of the penalties for statutory offences of a sexual character, particularly those directed against children. If the outcome of that review were to increase the penalties or in some way to revamp the offences, the constitution of the English schedule in this Bill and the English Bill would have to be looked at again. The view taken at the moment is that it would be wrong to introduce into the lists, north or south of the Border, any offence which does not attract life imprisonment, which they all currently do.

For those reasons, and on the clear undertaking that I shall look carefully at what has been said by the noble and learned Lord, Lord Hope, and the noble Lord, Lord Sewel, I hope that none of the amendments will be pressed. If I have omitted to deal with one of the amendments, I apologise.

Lord Macaulay of Bragar

Before the noble and learned Lord sits down, is the list now closed or shall we have some additions to it by Report? Those of us who have to look closely at the Bill would like to know.

The observations that have been made in the course of this debate make it clear that it is an act of folly to try to introduce crimes committed in England under a system which is statute based into a Scottish system which is based on the common law. We are not comparing like with like. That is why a substantial degree of unfairness may be introduced into the whole matter leading to a mandatory life sentence.

Lord McCluskey

Perhaps I may join in, because I have now discovered the meaning of Amendment No. 25 in the name of the noble and learned Lord, which, as has been pointed out, is similar in purpose to my Amendment No. 26.

Contrary to what the noble and learned Lord the Lord Advocate has just told the Committee, the word "complainer" is a well understood word in Scots law. For example, it appears three times in Section 270 of the Criminal Procedure (Scotland) Act 1995, which I have before me. It states: This section applies where … evidence is led by the defence … impugning the character of … the complainer". It states also: This section applies where … the nature or conduct of the defence is such as to tend to establish … or to involve imputations on the character … of the complainer". Subsection (4) states: In subsection (1) above, references to the complainer include references to a victim who is deceased". Therefore, the word "complainer" is perfectly well understood in everyday Scots criminal practice as meaning a person who is a victim. In terms of the Act, which was passed by this House as a consolidation measure in 1995, it includes even a deceased victim. Therefore, the word "complainer" is perfectly well understood. It is for that reason that I tabled Amendment No. 26. The present wording of the provision is, I would submit, quite ludicrous. The qualifying offence appears on page 3 at line 15 where it states: Sodomy or attempted sodomy where, in either case, one party does not consent". I suggest that the words "one party" should be deleted and the word "complainer" substituted. Therefore, the Bill should refer to sodomy or attempted sodomy where the victim does not consent because it is the absence of consent by the complainer or victim which turns consensual homosexual intercourse into a serious sexual assault. It is the complainer's absence of consent which matters. You cannot charge the offender if he did not consent. That is too ludicrous to even think about. You cannot charge the person who commits the sodomy of another and say, "Well you did not consent". That is just absurd.

I may have missed something in all this if there are three or more parties to a sodomy. But that is not my understanding of the term as it is used in Scots law. Accordingly, the provision is meaningless as it stands and the proper course is to take out the words either on the basis suggested by my noble and learned friend Lord Hope of Craighead, or, alternatively, to substitute the words "complainer". At the moment, it looks like some kind of silly joke.

Lord Hope of Craighead

In relation to Amendment No. 23, I am reassured by the observations of the noble and learned Lord that my experience is the same as his and that until recently the offence of incitement to murder has not appeared in Scottish indictments. But in view of its recent appearance, I recognise that there may be some point in its inclusion in this paragraph and I am content to withdraw that amendment.

As regards Amendment No. 25, I hope that in the light of my observations and in particular those of my noble and learned friend Lord McCluskey, the noble and learned Lord the Lord Advocate will give further thought to that matter. It seems confusing. I found it quite difficult to understand. My noble and learned friend mentioned the oddity which might arise if there were three parties involved in the enterprise, two of whom were trying to commit an offence against another. The essence of the matter is that something is done to somebody who is properly described as a complainer which I should have thought would qualify the sodomy or attempted sodomy for inclusion in this list. On the understanding that the matter will receive further consideration, I am content to withdraw that amendment.

Amendment No. 28 is intended to deal with the possibility that there had been an oversight in the Government's thinking in relation to what should be included on the list. I suggested the inclusion of the words, "the victim's permanent disfigurement". Of course, my noble and learned friend Lord McCluskey is right to say that, in many cases, it is not a serious offence. It is somewhat reassuring to find that the Government are prepared to recognise that some offences prosecuted in the High Court are not, after all, serious offences. As it appears that this is not an oversight and the matter has received consideration, I am content not to press the amendment.

As for Amendment No. 31, that is an amendment to which I should like the noble and learned Lord the Lord Advocate to give further consideration. It is a matter of finding the proper form of words to express the concept which is being described. The word "some" has its origin in the English Bill, but I do not see why we should be tied to that phraseology if we can find a better form of words for ourselves. It is really for the reasons that I outlined and which the noble Lord, Lord Sewel, mentioned that I suggest that it would be worth thinking about another way of expressing the concept.

I turn now to Amendment No. 36. I am reassured by what the noble and learned Lord said about prosecution practice. However, I should like to think that from now on one of the factors which a Lord Advocate will take into account when deciding whether to prosecute for that particular offence, in the case of an offender under the age of 16, is its effect for the future. That applies not only to the sentence which might be imposed for that particular offence but also to the consequences if it were to be prosecuted in the High Court in the future should there be a further offence.

Finally, in regard to Amendment No. 39, it is an unfortunate situation that people who commit the offence of lewd conduct, to express it shortly, in Scotland will already, so to speak, have lost one life if they venture south of the Border and find themselves committing an offence on the English list. It is that kind of distortion that led me to suggest that this should be included in the Scottish list. I do not see why we should be affected by the fact that English legislation is defective in failing to set proper minimum penalties.

On the other hand, I understand that the matter has received careful consideration and I am grateful for that fact. I also understand that the whole problem of such offences in England is to be considered and it may be better to leave the matter over to allow that consideration to take place. I have no doubt that one factor that will be brought into account, if the Crime (Sentences) Bill is enacted, is whether the kind of offence to which we are referring this evening should be included in that list. If amendments to the English legislation are needed in order to achieve that aim, no doubt that will be done and no doubt the opportunity would then be taken to reflect that fact in Scottish legislation. For the various reasons that I have outlined, I am content not to press any of my amendments. With the leave of the Committee, I shall withdraw them in due course.

Lord Mackay of Drumadoon

Before the noble and learned Lord sits down, perhaps I may correct a possible misapprehension on his part as to what I said earlier about assault to permanent disfigurement. I may be wrong, but I am unaware of it ever being the practice of the Crown to prosecute individuals charged with assault to permanent disfigurement in the High Court. If I gave that impression in my earlier remarks, I would not wish that to be understood by Members of the Committee. As the noble and learned Lord is well aware, the normal practice is for that aggravation to be added to assault to severe injury. That is the reason why the Government have adopted their position in relation to the matter. However, I can certainly repeat the undertaking that I gave earlier to look at the matter further. Indeed, I need say no more in that respect.

I am reminded that I may not have dealt explicitly with Amendment No. 27, although I believe that I referred to it in passing when dealing with one of the amendments tabled by the noble and learned Lord, Lord Hope. I am grateful for that reminder. The effect of this amendment would be to restrict the category of aggravated assaults which are qualifying offences to those which are aggravated through not only causing severe injury to the victim but also causing the victim's permanent disfigurement. This amendment would seek to require both elements to be established before an offence would qualify.

The Government believe that this would be an unnecessary and undesirable restriction because of the fact that severe injury may not always be accompanied by permanent disfigurement. I give an example which must occur from time to time in cases prosecuted in the High Court where a victim is the subject of a beating or a kicking with hands and feet. It is not uncommon for him to sustain serious internal injury without there being any permanent disfigurement whatsoever. That is why the amendment is deemed to be undesirable.

With regard to the question posed by the noble Lord, Lord Macaulay, as to whether the list was closed, I must say no for the reason that we have yet to deal with some of the amendments tabled by the noble and learned Lord, Lord McCluskey. The list cannot be said to be closed because it depends on what the Committee makes of those amendments. Equally if, on further reflection of what has been said this evening, the Government seek to amend or alter some of the qualifying offences, the list could not be said to be closed in that respect either. If Members of the Committee opposite wish to propose an addition at Report stage that can be looked at too. As present advised, the Government have no proposals to bring forward amendments to the list subject to the comments that I have already made in dealing with those amendments which have been spoken to so far.

9.30 p.m.

Lord McCluskey

With respect, the noble and learned Lord the Lord Advocate misses one of the points. The indictment may contain a charge of assault with the double aggravation of severe injury and permanent disfigurement. It is open to the jury to delete both aggravations or either or neither. A jury is directed that the question of whether an injury is severe is not a question of medical seriousness but is a jury question. It may well be that a jury would return a verdict of assault to permanent disfigurement even though it was not the practice of the noble and learned Lord the Lord Advocate to charge such an assault. I accept that that would not be his practice.

The difficulty is to understand why assault to severe injury should be a scheduled offence but assault to permanent disfigurement should not be. That is the difficulty that is raised by the amendment of my noble and learned friend Lord Hope of Craighead. Why should assault to severe injury be regarded as warranting the loss of one of the two "lives"—I rather like that metaphor—when assault to permanent disfigurement does not? What is the thinking that distinguishes between these two?

Lord Hope of Craighead

My noble and learned friend has picked up precisely the point that I wanted to make in reply to the noble and learned Lord the Lord Advocate. There was certainly no misunderstanding on my part about prosecution policy in this regard. I would not have believed for a moment that the noble and learned Lord the Lord Advocate would prosecute on its own assault to permanent disfigurement. I believe I have repeatedly made the point that Scottish juries can deal with indictments in a way which English juries cannot deal with counts in an English indictment. It is that kind of problem that has to be anticipated in the drafting of this particular schedule. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 24 and 25 not moved.]

Lord McCluskey

I take it that it is not technically possible to go back to Amendment No. 24. I see the shaking of heads. That is a pity. I shall come back to it on Report. I was confused by the listing. I confess that I have forgotten the number of the amendment being called.

Lord Mackay of Drumadoon

We are now at Amendment No. 26.

[Amendments Nos. 26 to 28 not moved.]

Lord McCluskey moved Amendment No. 29: Page 3, line 21, leave out ("or to ravish").

The noble and learned Lord said: Amendment No. 29 has not been discussed. It has nothing to do with the groups set out in the Marshalled List. The amendment refers to the wording at line 20 on page 3 of the Bill. The concept included in paragraph 6 of the qualifying offences schedule is, Assault, where the assault was carried out with an intention to rape or to ravish".

I do not know what that means. An intention to rape or an intention to ravish are interchangeable terms, as I understand it. I know of no difference between them. "Ravish" is a rather old fashioned way in Scots legal language of saying an attempt to rape. Perhaps the Government can explain.

I am sorry that I cannot ask them to explain where on earth "clandestine injury to women" in paragraph 4 came from. I have a good deal of authority to suggest that perhaps there is no such crime in Scotland, and certainly no nomen iuris for such a crime. I shall have to come back to that on Report. I beg to move.

Lord Mackay of Drumadoon

Perhaps I may be forgiven for suggesting to the noble and learned Lord, Lord McCluskey, that if he is interested in the inclusion of "clandestine injury to women" in the list, he might refresh his memory by reading the Committee stage in another place. It was suggested to the Government, I think by the Opposition, that that was a serious omission from the list. The Government were persuaded to take it on board, proving that the list was not in fact closed. If the noble and learned Lord seeks to take on both noble Lords opposite and myself at a later stage, we shall await with interest what he says.

The Government believe that Amendment No. 29 seeks to restrict the list in an unacceptable manner. As the noble and learned Lord is aware, assault with intent to ravish is a term currently used in the criminal courts of Scotland. In the first full week of this year I prosecuted in the High Court an accused on a charge of rape and, withstanding an insufficiency of evidence to justify seeking a conviction of rape, I sought from the jury, first, a conviction for attempted rape, or assault with attempt to ravish. That was the charge upon which the accused was convicted. There may be no difference in legal terms between an assault and an attempt to rape and an assault with intent to ravish. But both terms are used in the courts and to avoid misunderstanding as to whether one is included or one is not, and to avoid any accusation that the Bill is intended to amend the common law of Scotland so far as concerns the definition of offences, paragraph 6(b) is in the terms it is.

Lord McCluskey

One of the unfortunate difficulties is that when the English determine whether or not a relevant offence in their terms has been committed, they will find this curious expression: Assault … carried out with an intention to rape or to ravish". It appears to me that, since there is no difference, the Act ought simply to go for one term or the other. I would prefer the more modern term, "to rape". I cannot understand why both terms are there when they both mean exactly the same thing. It will certainly confuse judges in England when they come to regard an offence of this kind under Schedule 5A as being a relevant offence for the purposes of the Crime (Sentences) Bill. Surely the noble and learned Lord the Lord Advocate will acknowledge that.

Lord Mackay of Drumadoon

It is no part of my responsibility to deal with any problems that judges in England may have in construing Scottish legislation. I merely say that, having sat through many hours of debate on the English Bill, among the many arguments deployed against that Bill from the Cross-Benches, populated by not a few noble and learned Lords, no one made that point. It may be, however, that we shall hear about it on Report.

Lord Macaulay of Bragar

Before the noble and learned Lord sits down, is the problem not created by including the word "or" in paragraph 6(b)? It suggests that they are two different offences. With respect, the point made by the noble and learned Lord, Lord McCluskey, is that they are one and the same thing. There is no need therefore to include the word "or", since it might suggest to people that the assault was not carried out with an intention to rape or to ravish. The two words mean exactly the same thing. Surely, since it is left to the judges to interpret the words "exceptional circumstances" before they impose an automatic life sentence, it will be open to the judge to explain that the word "rape" includes the word "ravish". Can it not simply be left to the judges and can we not delete "or to ravish", as the amendment suggests?

Lord McCluskey

I gather that the silence of the noble and learned Lord the Lord Advocate means that he does not intend to make any further reply. It is a pity. The Government drafted this Bill in an extraordinary hurry. I know the details of the drafting and early printing of the Bill when it actually "hit the stands". It came out with great speed. Yet the Government are determined to defend almost every word of it. I suppose that is to ensure that it passes hastily through both this Chamber and another place. I hope that the noble and learned Lord the Lord Advocate will take the opportunity to reflect on this matter before Report stage and decide whether he needs those words in the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 30 and 31 not moved.]

Lord McCluskey moved Amendment No. 32: Page 3, line 23, after ("offender") insert ("personally").

The noble and learned Lord said: This amendment raises a matter that has not yet been discussed. At line 23, on page 3 of the Bill the Committee will see that the person referred to is an offender who, had in his possession a firearm or an imitation firearm".

I am concerned with that notion of possession.

An offender might well be held to be in possession in the ordinary legal sense although, to the ordinary layman, he did not possess at all. In other words, there can be a kind of constructive possession. It is not uncommon in Scotland to find a person starting out the evening with a firearm or another kind of weapon who then parts with it to a companion—very commonly, a female companion—and is then not in a lay sense in possession but is in a legal sense in possession of the firearm.

Accordingly, by adding the word "personally" the amendment seeks to make sure that the offence, which appears as a qualifying offence, is an offence where he personally has possession of a firearm or imitation firearm during the commission of the offence. I beg to move.

Lord Mackay of Drumadoon

This amendment touches on issues similar to those discussed previously in relation to Amendment No. 30. As I mentioned when dealing with that amendment, there is a concern that amendments along these lines would unduly narrow the circumstances in which robbery with the use of a firearm would be a qualifying offence for the purposes of an automatic life sentence.

As I think the noble and learned Lord, Lord McCluskey, would be the first to acknowledge, when the doctrine of art and part is being explained to juries in all manner of cases, the practical example given in many instances is that of the bank robbery when one person has the gun, one person has the bag to put the money in, one person stands out in the street as the look-out and the fourth person is in the car. In that situation, if they are all proved to have been involved in the carrying out of the bank robbery with the use of a firearm, they are so convicted, even though three of them may never have touched the weapon from the beginning of the commission of the offence to the end of it.

It would be most unfortunate if this provision in the schedule were to be amended in such a way that only those offenders who had a weapon in their personal possession were to be caught and the others were not. However, I will look at the provision again in the light of what has been said. If it can be recast in a way which meets the concerns expressed earlier by the noble Lord, Lord Sewel, and now by the noble and learned Lord, Lord McCluskey, I will promise to bring back a tidying-up amendment at Report. However, I feel that both the amendments, and in particular the one we are now discussing, would have a seriously restricting effect on the Bill. For that reason the amendment is not acceptable.

Lord McCluskey

I am grateful that the noble and learned Lord will look at the matter. He will find when he does so that the word "possession" appears in paragraph 7, to which this amendment relates, and also in paragraph 8(a) where there is reference to the possession of a firearm in terms of Section 16 of the Firearms Act 1968. Those are closely related in terms of the provision and it is important that the Government should know what the intention is in relation to constructive possession.

I am rather alarmed to hear the noble and learned Lord say that a person who never enters the bank but sits outside in the car is a party to the possession of a firearm by a person inside the bank. He may be guilty art and part of an armed robbery, but to say that he is guilty art and part of the possession of a firearm is a strange thing indeed. However, I shall await the result of the noble and learned Lord's further consideration. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.45 p.m.

Lord McCluskey moved Amendment No. 33: Page 3, leave out line 32.

The noble and learned Lord said: Amendment No. 33 relates to a matter that we have not discussed. The provision at line 32 on page 3 includes among the qualifying offences lewd, indecent or libidinous behaviour or practices. We have had some discussion of that. Hitherto we looked at the fact that there is no exact equivalent in England. However, the offence in Scotland is described in a number of cases which are conveniently summarised in Christopher Gane's book Sexual Offences. I refer to page 74. He says—and I respectfully agree—that: It is an offence at common law to engage in 'lewd, indecent and libidinous practices and behaviour' towards children (girls or boys) below the age of puberty, with or without their consent. I pause to say that this provision in the Bill does not refer simply to children but to any lewd, indecent or libidinous practices. Gane goes on to say: The offence may take the form of an indecent handling of the child by the accused or inducing the child to indecently handle the accused. There is no need for any physical contact between the parties and knowingly to engage in indecent conduct in the presence of a child may constitute lewd and libidinous practices". There is also a case in which a husband had sexual intercourse with his wife in the presence of a child. That was held to be him engaging in lewd and libidinous practices for which he could be prosecuted, and he was prosecuted quite recently. I wonder what the Government's thinking is in relation to this matter and why it is that an offence which is capable of being so extremely minor should be included in the list of qualifying offences. I beg to move.

Lord Mackay of Drumadoon

As I think has been made clear earlier, if a conviction for lewd and indecent and libidinous behaviour or practice was to be relevant to the automatic life sentence provisions, it would have to be a conviction in the High Court. The view has been taken that such convictions do amount to convictions for serious sexual offences, whatever minor contraventions of that common law crime may occur, and might be prosecuted in the law courts: whether sheriff and jury, sheriff summary or the district court. That is the reason why, for the purposes of protecting those who are the victims of serious sexual offences, paragraph 9 of the schedule exists.

I can do no more than remind the Committee of what I said at Second Reading, that it would be for the prosecutors of the day, when this clause comes into effect, the Crown counsel, to decide whether or not the circumstances warrant the case being heard in the High Court. If such a conviction followed on as a minor charge in a High Court indictment where other more serious charges had not been proved, then that would obviously be the circumstances of the particular offence, whether it be the first or the second, and it would be going over old ground to go over what we discussed earlier as to whether or not those facts could be prayed in aid by counsel in seeking to persuade the judge that this was a case where there were exceptional circumstances which entitled the judge, in the exercise of his discretion, not to impose an automatic life sentence.

Lord Hope of Craighead

I would like to support Lord McCluskey's amendment to this extent, that it again raises the problem of the freedom a jury has to deal with the charges before it in the indictment. The noble and learned Lord has referred to one possibility which is where a whole series of charges are brought into the indictment, some of which are comparatively trivial but they need to be charged together with the others for evidential reasons, and due to some accident of evidence or the way in which the jury approach the case, all the serious charges are deleted and a few, possibly only one very minor charge, which would have gone to the sheriff court on its own, is all that is left. The fact is that the prosecutor does not control the jury. The jury have complete freedom in these matters under the direction of the trial judge to decide what to do. For my part, I fully support the broad idea that an offence of this kind, committed against children, is one of the most pernicious offences and requires very careful consideration by the Government. The problem is created by the width. I have tried to think of a way of qualifying the phraseology. I confess I have not been able to come up with any words which I am prepared to put forward by way of amendment. But it may be, on further consideration, the Government will be able to find some words.

There is one other point I should make, and that is this. This offence has been considered recently by the High Court in Scotland and the view was taken in a case, the name of which escapes me, that it is not confined to offences against children. It may be worth considering whether one way of qualifying this to deal with the particular point to which I think it is directed is to include a reference to children so that it is at least limited to that and does not include some of the more bizarre examples of lewd conduct committed between adults where there is no reason to think that anybody is seriously affected by the conduct. So, to that extent, I support what Lord McCluskey has said.

Lord McCluskey

I am grateful for that support. I should simply draw the Lord Advocate's attention to the possibility of using the notion of the complainer being below the age of 16, or some such thing. That would ensure that where an adult used lewd and libidinous practices towards a child within the meaning of the 1995 Act—approximately a person below the age of 16—then that would be a qualifying offence. One can understand that more readily.

My noble and learned friend took the words out of my mouth in relation to what the jury can do, but I want to go on from that. The prosecutor may decide to put the accused person in the High Court on a much more serious charge and the jury may do as they are entitled to do and reduce the charge, so that it comes out in effect as a charge of lewd and libidinous practices. The circumstances may not be in the least exceptional. There is nothing exceptional about an older brother, a babysitter or the boyfriend of the mother interfering and using lewd and libidinous practices towards the child. At the moment, such offences tend to be charged summarily. But the offender can be convicted in the High Court by a jury if it is decided to dilute the charge in some way.

What worries me about that is that, if the prosecutor found that the jury did not accept his principal submission—namely, that the accused should be convicted of a more serious offence—but returned a verdict which was essentially for lewd and libidinous practices, and the prosecutor says to himself, "I would never have brought this case for such a result into the High Court", then the prosecutor will not move for sentence. If the prosecutor does not move for sentence, that person, instead of going to prison for life, walks free. I do not think that the public will readily understand that unreviewable exercise of a prosecutor's discretion when he simply declines to move for sentence.

I hope that the noble and learned Lord the Lord Advocate will give some thought to that particular matter, which is very serious indeed.

Lord Mackay of Drumadoon

This debate could go on incessantly. I responded to the noble and learned Lord's amendment. I promised to look at it further. Further contributions have been made by both noble and learned Lords. I do not think it is appropriate to respond in detail to the points made. I feel that we should move on to the next amendment.

Lord McCluskey

I do not pretend that that is a satisfactory answer but obviously I do not seek to divide the Committee at this time of night. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 34 not moved.]

Lord McCluskey moved Amendment No. 35: Page 3, leave out lines 33 to 35.

The noble and learned Lord said: This amendment relates to item 10 in the list: Any offence committed by contravention of section 5(1)"— that is to say, unlawful intercourse with a girl under the age of 16 years.

I should just like to understand the Government's thinking on this matter. I understand the general thrust of the provisions to be that the Government seek to protect the public. In what sense is this type of offence indicative of a threat to the public? In what sense is it associated with public danger? I beg to move.

Lord Mackay of Drumadoon

This amendment seeks to remove from the list an offence which I am sure many noble Lords would view as potentially very serious indeed. That is borne out by the fact that Parliament enacted that the statutory penalty for conviction can be up to that of life imprisonment.

In order to obtain a conviction for rape, the prosecution must prove that the act was committed against the will of the girl involved—the complainer, as that term has been discussed in earlier amendments. Requiring a young girl who would be covered by the provisions of this Act—namely, a girl under the age of 13 years—to give evidence about the issue of consent is, I am sure the Committee will agree, neither desirable nor appropriate. Presumably, that is why Parliament enacted this provision, which was consolidated recently as Section 5(1) of the Criminal Law (Consolidation) (Scotland) Act 1995.

As I acknowledged in earlier discussion, it is possible that this offence could be constituted by somebody under the age of 16 engaging in sexual experimentation with somebody just under the age of 13 but, if those were the factual circumstances, in my submission, it would be very unusual indeed and very difficult to contemplate that that would result in a High Court conviction. On the other hand, to cite an example I gave earlier, if the girl involved was aged eight, nine or 10 and the offender was much older than in the earlier example I mentioned, not only would there have been considerable danger to the girl involved in the particular offence, but the risk of that recurring undoubtedly results in a risk to the public.

That is why, following the policy which must have lain behind Parliament allowing the penalty of life imprisonment for a conviction under this section, the Government believe that this provision should be tenth in the list of qualifying offences.

Lord McCluskey

I am grateful to the noble and learned Lord for explaining the position. He has given an indication, now as earlier, that he will have regard to the age of the offender, which is the subject matter of Amendment No. 36 in the name of my noble and learned friend Lord Hope of Craighead. Given his assurances in relation to that, I beg leave to withdraw Amendment No. 35.

Amendment, by leave, withdrawn.

[Amendments Nos. 36 and 37 not moved.]

10 p.m.

Lord Mackay of Drumadoon moved Amendment No. 38: Page 3, leave out lines 38 to 41 and insert— ("11. Any of the following offences committed in England and Wales, namely—

1. (a) an attempt to commit murder, a conspiracy to commit murder or an incitement to murder;
2. (b) an offence under section 4 of the Offences Against the Person Act 1861 (soliciting murder);
3. (c) manslaughter;
4. (d) an offence under section 18 of the Offences Against the Person Act 1861 (wounding, or causing grievous bodily harm, with intent);
5. (e) rape or an attempt to commit rape:
6. (f) an offence under section 5 of the Sexual Offences Act 1956 (intercourse with a girl under 13);
7. (g) any offence committed by contravention of—
1. (i) section 16 (possession of a firearm with intent to endanger life or cause serious injury);
2. (ii) section 17 (use of firearm to resist arrest); or
3. (iii) section 18 (carrying a firearm with criminal intent)
• of the Firearms Act 1968;
4. (h) robbery, where at some time during the commission of the offence the offender had in his possession a firearm or imitation firearm.

12. Any of the following offences committed in Northern Ireland, namely—

1. (a) an offence mentioned in subparagraph (a) to (e) of paragraph 11 above;
2. (b) an offence under section 4 of the Criminal Law Amendment Act 1885 (intercourse with a girl under 14);
3. (c) an offence under Article 17 (possession of a firearm with intent to injure), Article 18(1) (use of a firearm to resist arrest) or Article 19 (carrying a firearm with criminal intent) of the Firearms (Northern Ireland) Order 1981; and
4. (d) robbery where, at some time during the commission of the offence, the offender had in his possession a firearm or imitation firearm within the meaning of that Order.

PART III

INTERPRETATION

13. In paragraphs 7 and 11(h) above "firearm" and "imitation firearm" have the meanings respectively given to them by section 57 of the Firearms Act 1968.".").

The noble and learned Lord said: I spoke to this amendment with Amendment No. 4. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 39 and 40 not moved.]

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

Lord McCluskey

This matter has been the subject of some discussion before now. I deeply regret—and I have not made any secret of it—the Government's sudden decision in June 1996 to introduce American-style mandatory sentencing. It has been said by us, the critics of the Bill, and admitted today by the noble and learned Lord the Lord Advocate, that this matter was preceded by no external consultation whatever. I do not know what consultation there was within the Government. I should be interested to know whether the Lord Advocate himself was consulted before the Government's intention was announced.

The Secretary of State, I believe, was asked for, but refused, an independent inquiry into the Maguire case, which gave rise to his concern in this matter. What he did do, however, was make the announcement which is now enshrined in Clause 1. There was no consultation whatever about the principle. We have to ask what is the principle.

The principle enshrined in the clause is that a man or a woman should go to prison for life if twice convicted in the High Court for any one of a huge number of offences. It is difficult to get the exact number but it is certainly in Schedule 1 something in the order of 19 or 20. The principle that is swept away on the basis of this one case, the tragic Mhairi Julyan case, is a principle which has been part of Scots law since time immemorial. It was much praised by Baron Hume and was commended by the previous Secretary of State, Ian Lang, in relation to an earlier Bill in another place.

However, this kind of mandatory sentencing is not without precedent. We can find it at both federal and state level in the United States, and the movement in both state and federal jurisdictions has been a movement towards removing judicial discretion. In California it started in 1976 and the discretion of the judges which, until that time, had been absolute and unreviewable, was removed for most serious offences. In 1994 the California legislature adopted the "three strikes and you're out" policy; in other words, two serious felonies followed by one felony meant one had to go to prison for not fewer than 25 years and it could be substantially more. The result is that in California the prison population in 20 years has trebled.

Those are undeniable facts. The Government know them and do not face up to the fact that our prison population will rise in a dramatic way because of provisions of this kind. In California the court system has been thrown into chaos because of reasons mentioned by Members of this Committee and the Committee on the Crime (Sentences) Bill. There is no point in pleading guilty to the second offence or in California to the third strike, because one is bound to go to prison for 25 years or more and the judge there, as here, has no discretion. The other horrific factor is that the prosecutor in California can enter into plea bargains, and does so. He reduces charges to avoid people pleading not guilty and accepts crimes as misdemeanours which are truly felonies in order to avoid the application of the principle of three strikes.

The cost of building prisons in California is absolutely prohibitive. It is the greatest growth industry in the state. It is wellknown among lawyers and others in California that there is a proposal to erect road signs on the borders of Nevada and Arizona reading, "Welcome to California, the wholly-owned subsidiary of the California Department of Corrections". That expresses the point that it is a huge growth industry.

When I visited California some two years ago looking at this matter, there was no discernible effect upon crime rates. Closer studies since that time have indicated that there is no correlation between a rising prison population and a falling crime rate. The curious thing is that so many crimes are committed in California that one of the great difficulties is to pick a jury where the members of the jury are not themselves either victims or related to perpetrators of felonies within the state.

It is the crime rates that matter. That is why so many people who were consulted—the Lord Advocate has access to the consultation papers—did not say, "Let the punishment fit the crime"; they said, "Let the punishment reduce the crime". That is an entirely different matter. Quite apart from state law, exactly the same phenomena happened in federal law. Until 1984 federal judges in the United States had total discretion and that discretion was unreviewable. There was no national sentencing policy. Then the Sentencing Reform Act 1984 was enacted.

The Act was sponsored by two senators—Edward Kennedy and Strom Thurmond from the liberal and right wings respectively. Senator Kennedy was anxious to arrive at equality of sentencing for minority groups, especially blacks, who tended to come out much worse as a result of the penal system. Strom Thurmond was anxious to double or treble the sentence for all criminals. They therefore combined forces and produced the Sentencing Reform Act 1984 with what are called "mandatory guidelines", though that is an oxymoron, as Members of the Committee will recognise. In the event, judges are supplied with a matrix containing about 300 boxes and they simply use a computer or calculator to find their way into the appropriate box, having regard to the characteristics of the offence and the offender, and end up having to give a sentence in respect of which there is almost no discretion.

Experience in relation to those federal practices shows that judges go below the guidelines, as they are allowed to do in exceptional circumstances, in 1.5 per cent. of cases. Prosecutors can move to go below the guidelines and do so in 15 per cent. of cases, so the prosecutor exercises the power to go below the guidelines 10 times as often as the judge. That is what has given rise to what is called the "co-operation paradox". American experience, particularly of drugs cases, demonstrates that when you have the supply of drugs on a commercial scale within a community, the person in charge is usually a white and the persons who are doing the donkey work are usually members of minority groups. When the police bust the ring and require evidence, the person who can give the best evidence is the leader of the ring, so he co-operates with the prosecutor. He is then not prosecuted for the serious offence; he is charged with a misdemeanour. He gets up to four years in prison, but is usually out before that. The "donkeys", who are usually blacks or members of other minority groups, get a minimum of 14 years in relation to any trafficking in drugs.

The result of all those experiments in the United States is, first, that since 1984 the federal prison population has more than doubled; the biggest villains escape the long terms; and the minority groups get very much longer in prison than the whites. Accordingly, the Chief Justice of the United States, William Rhenquist, in testimony to a congressional committee warned that we were in a state of facing what he called, the law of unintended consequences". One sets out with what may be described as excellent intentions, but achieves almost the opposite. There is no satisfactory evidence of that policy having any deterrent effect on crime in the United States. Worse still, rehabilitation, which was at the heart of the American penal system until the mid-1970s, has virtually disappeared. It has become too expensive.

Against that background and given the experience that one can see across the water, why on earth have the Government gone so wholeheartedly for this proposal? Why, after studying the matter, have the Government decided to do a kind of U-turn? Why have the Government done that in the face of opposition from the Faculty of Advocates, the Law Society of Scotland, the judiciary and many other bodies, including the University of Dundee?

The university has produced an extremely articulate paper on the matter. The Lord Advocate no doubt has a copy; I have one and have read it. How do the Government answer the criticisms which were outlined in that paper? That paper points out the fact that the practical difficulties are absolutely enormous. It states that the pressure on the prosecutor to plea-bargain would increase; the defence would insist on pursuing the case to trial and some juries might be reluctant to convict. Many ethical and other issues are raised in that paper, which also refers to studies which illustrate that the judiciary has significantly increased sentence length for serious violent and sex offences over the past 10 years in Scotland. Given that background, is it necessary to move to mandatory sentencing when all the experience of that policy in the United States is so alarming and disappointing? That is why I oppose the Question that Clause 1 stand part of the Bill.

10.15 p.m.

Lord Thomas of Gresford

I support everything that the noble and learned Lord has just said. I had hoped that we might get a little more light from the noble and learned Lord the Lord Advocate which might assist judges in the future. During our debates on Clause 1, there was a reference to the article in the Glasgow Herald by the Solicitor-General, Mr. Paul Cullen. It is interesting to see what he says in that article: Equally there is nothing unprecedented or revolutionary about mandatory sentences. Such penalties have long been the norm for offences ranging from murder to drink-driving. Nothing in the Bill will reduce judicial discretion. Life sentences of this kind are already available to the courts in dealing with the worst cases of serious crimes. What the Bill proposes is that, save in exceptional circumstances, life sentences should apply automatically to those convicted for a second time of serious violent or sexual offences". Those words have been put to the noble and learned Lord the Lord Advocate on a number of occasions to see whether he agrees with the Solicitor-General. He has told us that he approved the article before it was published and had sight of it. No doubt that is his interpretation of the purpose of Clause 1: that nothing in the Bill will reduce judicial discretion. He told the noble and learned Lord, Lord McCluskey, that the overall discretion of the sentencer was not altered by the Bill. I will check it tomorrow in Hansard, but that is my note of his understanding of what the Solicitor-General said.

What is the purpose of introducing this Bill if the overall discretion of the sentencer is not altered? On this interpretation it is still open to the judges to determine the appropriate sentence simply by using the words "exceptional circumstances". In the course of this debate, I have asked the noble and learned Lord the Lord Advocate to explain his understanding of "exceptional circumstances". His response is that it is for the court to construe it; in other words it is for the judges in Scotland who have the duty of carrying out the provisions of this Bill to decide for themselves what are exceptional circumstances. That is the message that goes out from the Lord Advocate to the judges for their understanding of the Bill.

This opens up all kinds of possibilities. Not a single limitation has been placed upon this interpretation of "exceptional circumstances" by the Lord Advocate. He has not suggested that the courts should do anything other than apply what they consider to be just and proper in their interpretation of the Bill and in the sentencing exercise that they carry out. Although I oppose this clause, the result of today's proceedings is to demonstrate that the courts may make of "exceptional circumstances" what they will, and judges may continue to do what they consider does justice in the circumstances of the individual offender who is before them.

Other reasons for attacking Clause 1 have already been referred to. I make three very short points. As far as concerns the additional number of prisoners that results from the passing of this Bill, mainly under Clause 1, the Explanatory Memorandum states that there will be an increase in the prison population of as many as 2,200 five years after implementation. Therefore, the envisaged increase in the prison population of Scotland is from 6,200 to 8,400 over five years. The cost of that in terms of expenditure on prison places will be £65 million to £100 million per annum at current prices. Is this justified? As the noble and learned Lord, Lord McCluskey, has said, does the American experience teach us that an investment of that degree of resources is worthwhile? I suggest that the evidence is to the contrary.

As for juries, at one point the noble and learned Lord the Lord Advocate referred to what I said during the course of the Crime (Sentences) Bill, that, naturally enough and if appropriate, I would reveal to a jury the fact that my client had committed a qualifying offence and was likely to receive a life sentence if convicted of the offence for which he was before the court in the particular case. He expressed some surprise.

I am sure that in the course of his career the Lord Advocate must on many occasions have revealed his client's record for a variety of purposes. It may be that if one is defending someone on a charge of rape one would not reveal a recent rape conviction, but there are circumstances which might arise under the Bill where the qualifying offences are of such a varied character that it would be appropriate to reveal the fact that a life sentence awaited the defendant if convicted. He suggested that that would be unprofessional. I do not accept that for a moment.

If one is instructed by one's client to put forward the fact that he faces a life sentence as a result of a conviction on the offence upon which he is before the court, then one would do that. One would certainly advise him to do it if it were appropriate.

The third matter to which I want to refer is that mentioned by the noble and learned Lord, Lord McCluskey—plea bargaining. It is undoubtedly the case that there would be pressure upon both the prosecutor and the defendant to come to some compromise which would avoid the drastic consequences of a mandatory life sentence. It happens in all jurisdictions. It happens in this jurisdiction that lesser charges are offered and lesser pleas are accepted. This is a disaster of a clause. I am certain that were it ever to come into force it would quickly prove to be unworkable.

Lord McCluskey

I appreciate that I have already spoken, but in view of what the noble Lord said, the resource implications dealt with on page viii relate to Part III of the Bill, not Clause 1. However, Clause 1 is dealt with towards the foot of the page where it states: It is anticipated that the proposals in Clause 1 for automatic life sentences will have very little impact on the prison population in the initial years following implementation", and it gives reasons for that. It is for that reason that I asked the question to which I received the answer that there are 3,300 people at risk. As the recidivism rate is extremely high for that type of offender within a period of two years from leaving prison, I should like to know from the Lord Advocate when it was that they first discovered the figure of 3,300. I suspect that it was when they looked it up in answer to the question that I asked.

Curiously enough, what the memorandum goes on to say in the last paragraph of that page is: The proposals in Part III and in Clauses 1 and 2 are likely to have significant implications for the work of the Sheriff and High Courts … It is likely that a proportion of accused people who currently plead guilty will choose to maintain not guilty pleas and to pursue appeals against conviction". They acknowledge that there is likely to be an effect upon the criminal justice system of a very disruptive kind.

The last point that I wish to mention—I shall not speak further in relation to this clause, I hope—is that the Dundee study refers to the fact that there is a wealth of criminological research on risk prediction. It states: These studies suggest that such a proposal"— that is, in Clause 1— is in danger of under-identifying those who are likely to commit serious crimes in future and of over-predicting the number of offenders who will re-offend. While a previous history of offending is a key predictor of future offending, it must be combined with other factors, should be more than two incidents and does not necessarily predict offending of the same type or at the same level of seriousness". Those are important matters which have been the subject of serious study which the Government seem to have swept aside.

Lord Mackay of Drumadoon

In the course of responding to a number of amendments this evening, I have set out the reasons why the Government believe that Clause 1 should stand part of the Bill. For that reason, having regard to the lateness of the hour, I see no point in repeating what I said earlier other than to confirm that the Government believe that when one is dealing with people who have offended repeatedly and who have been convicted in the High Court on a second occasion of serious sexual or violent crimes, this should be the procedure by which they are dealt with.

However, I should like to deal with a number of points raised by Members of the Committee who have spoken. First, I deal with the matters raised by the noble and learned Lord, Lord McCluskey. I have sat through the proceedings on the English Bill and this Bill and, until the noble and learned Lord's speech, nobody had suggested that the Government's proposals for automatic life sentences equiparate with the "three strikes and you are out", which apply in various states and federal jurisdictions in America. On the contrary, as I indicated earlier this afternoon, it has been acknowledged, as was confirmed by my noble friend Lord Carlisle, that the introduction of automatic life sentences need not necessarily lead to any increase at all in the prison population. Whether it does depends on the individual assessment by the Parole Board of individual prisoners in the light of the information then available.

It may be that the difficulty which the noble and learned Lord, Lord McCluskey, had with the provisions of the 1993 Act lie behind his assertion that automatic life sentences would lead to a rise in the prison population; I know not. But it has been acknowledged—and I say correctly acknowledged—that that need not be the case.

The noble and learned Lord asserted also that there will be no point in pleading guilty. Whether under the automatic life sentence provision in Clause 1 or in relation to the mandatory sentence for drug traffickers provided in Clause 2, there is a benefit in pleading guilty in that the period spent in custody as prescribed by the judge can be reduced in both cases to take account of a plea of guilty. As it is now proper for the courts in Scotland to have regard to a plea of guilty in fixing a period spent in custody, there is no reason to suppose that those provisions will not have some effect as well.

As I said on Second Reading—and I stand by it—in relation to plea bargaining, it will be the duty of any Lord Advocate and his advocate deputes, Crown counsel, to respect the Bill if it becomes law in the same way that judges would be required to respect the Bill if it became law. Time and time again, indeed since Second Reading, as Lord Advocate I have to take decisions as to which charges to prefer and which pleas to accept. I know that as night follows day that will have an effect, and sometimes a significant effect, on the period of time which an individual will spend in prison or, indeed, if he will spend any time at all in prison. That is the role of Crown counsel and the Lord Advocate and I see no reason why that role should not continue to be discharged in a perfectly responsible manner.

A point was made by the noble and learned Lord about the cost of building prisons. As he said in his intervention, the increase in the prison population depends on the provisions in Part III and the extent to which, if at all, judges in Scotland reduce their sentences in the event of those provisions coming into force. The Government have set out their position in the Financial Memorandum and we can no doubt return later to those issues. I do not have available to me information as to when the 3,300 figure was first collated, but I think I dealt with that earlier in the debate by referring to the fact that, whether or not there were life sentences, if any of these individuals was convicted, he would run a strong prospect of being sent back to prison.

The point raised by the noble Lord, Lord Thomas, about the additional prison population has already been answered. With regard to the practice of revealing previous convictions to a jury, in my experience as a defence counsel, I do not recall ever having done it. I am not saying that it has never happened. All I do say, on the basis of my experience of having defended many accused persons as a solicitor, having defended quite a few as a counsel and having prosecuted on many occasions, is that it is not normally the practice in Scotland for the reasons articulated by the noble Lord, Lord Thomas. As he said, it is so in England, although I have to say that the views he expressed, both today and on a previous occasion, have not been supported from many quarters as being the way in which defence counsel are likely to proceed. The point about plea bargaining has already been dealt with.

I accept that certain Members of the Committee do not support the policy but, in my submission, it is a policy which the Government have laid fairly before the House. I therefore invite the Committee to accept that Clause 1 should stand part of the Bill.

10.31 p.m.

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

Their Lordships divided: Contents, 29; Not-Contents, 10.

Division No. 2
CONTENTS
Blatch, B.	Long, V.
Brougham and Vaux, L.	Lucas, L.
Carnegy of Lour, B.	Lucas of Chilworth, L.
Chesham, L. [Teller.]	Luke, L.
Coleridge, L.	Lyell, L.
Courtown, E.	McColl of Dulwich, L.
Cumberlege, B.	Mackay of Ardbrecknish, L.
Dean of Harptree, L.	Mackay of Clashfern, L. [Lord
Denton of Wakefield, B.	Chancellor.]
Ferrers, E.	Mackay of Drumadoon, L.
Goschen, V.	Marlesford, L.
Hemphill, L.	Strathclyde, L. [Teller.]
Henley, L.	Trumpington, B.
Inglewood, L.	Ullswater, V.
Lindsay, E.	Wilcox, B.

NOT-CONTENTS
Carlisle, E.	Mar and Kellie, E. [Teller.]
Hope of Craighead, L.	Monson, L.
Hylton, L.	St. John of Bletso, L.
Kintore, E.	Thomas of Gresford, L. [Teller.]
McCluskey, L.	Wigoder, L.

Resolved in the affirmative, and Clause 1, as amended, agreed to.

10.40 p.m.

Clause 2 [Minimum sentence for third conviction of certain offences relating to drug trafficking]:

[Amendment No 41 not moved.]

Lord McCluskey moved Amendment No. 42: Page 4, line 12, leave out from beginning to ("was") in line 22 and insert ("at any time after the commencement of section 2 of the Crime and Punishment (Scotland) Act 1997, and one of the two other offences").

The noble and learned Lord said: The purpose of the amendment is to avoid retrospectivity in relation to the application of the clause. In case your Lordships missed that in the hubbub from those leaving the Chamber, having voted and not having listened to the earlier debate—I hope that they will not prevent your Lordships from listening to my remarks on this amendment—I shall repeat what I said. The purpose of the amendment is to avoid retrospectivity in relation to the new Section 205B(1).

A person can become qualified to receive the mandatory sentence envisaged by this new section if he has pled guilty before the Act comes into force; for example, in the sheriff court. It appears to me a matter of principle that, when one decides whether or not to look at previous convictions of this kind, one should bear in mind that when people pled guilty to such offences in the sheriff court on earlier occasions they had no idea that they were thus becoming qualified to receive the minimum mandatory sentence imposed by the new section. It is simply because of the point of principle that I raise the matter. I shall return to the principle of the clause at a later stage. I beg to move.

Lord Mackay of Drumadoon

The amendment would have the effect of allowing the court to ignore any convictions obtained prior to commencement of this section which an offender might have for trafficking in Class A drugs. The Government consider that it would be very undesirable for that to occur. It would set back the practical implementation of the provision for some considerable period of time.

As I said earlier when the issue of retrospection arose, when the clause comes into effect people will be aware that, if they have such convictions from the past, the legislation will not impose any additional penalty on them; but if they re-offend in the future, it will. I believe that that is a perfectly respectable policy to adopt; it is a perfectly respectable policy for Parliament to approve; and, indeed, it does not raise the issue of retrospection as it is normally understood. Therefore, there is no sound reason for accepting the amendment.

Lord McCluskey

In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCluskey moved Amendment No. 43: Page 4, line 25, leave Out ("shall") and insert ("may").

The noble and learned Lord said: This amendment raises again the question of judicial discretion. I shall put the point very shortly this time. The main objection that I have to the clause is that I cannot conceive of any circumstances in which a person appearing on indictment in the High Court on a charge of trafficking in a Class A drug with two previous convictions for such an offence would not get at least seven years.

Perhaps the noble and learned Lord the Lord Advocate could answer this question—he could easily find it out by reference to the information system—how many cases have there been in the past one or two or five years in which a person has been convicted in the High Court of trafficking in a Class A drug and has been sentenced to fewer than seven years when he has two previous convictions of the same character? I think he will find the answer will be none. I think we are entitled to know that in case it has any bearing upon the assessment of costs because it looks from the explanatory memorandum as if the Government do not expect any addition to the cost of anything as a result of the provisions in this clause.

My real objection is that here we depart from the principle of allowing judges judicial discretion and we do so for reasons which are purely gestures. This clause, if enacted, will make no practical difference to the sentencing policy or the sentencing practice in any case at all. I cannot think of exceptional circumstances that would enable a judge not to send a person to prison for at least seven years for a third such offence. Indeed the noble and learned Lord the Lord Advocate will be well aware of the case of Lee in which a first offender aged 17 or 18 with no previous convictions, handling about £500 or £600 worth of a Class A drug, was sent to prison on his first conviction for four years by the Appeal Court. That sets the standard for the first conviction. Therefore the idea that one needs this clause makes no sense to me at all. Can the noble and learned Lord the Lord Advocate explain how many cases there have been in which judges in similar circumstances have imposed a penalty of fewer than seven years? That would enable me to consider whether I pursue this matter. I beg to move.

10.45 p.m.

Lord Mackay of Drumadoon

I am happy to explore whether the statistics to which the noble and learned Lord has referred will enable me to answer the precise question regarding the one or two-year period as he requested. At the present time, as he fully recognises, this amendment would render the clause meaningless. On that basis it is unacceptable to the Government. I should like the noble and learned Lord to withdraw it.

Lord McCluskey

I think the noble and learned Lord has missed my point which is that the clause as it stands is meaningless simply because no judge could possibly refrain from imposing a sentence of at least seven years for a third conviction for trafficking in a Class A drug. If there is a justification for this clause, it must be that judges have refrained from imposing such sentences in the past. Surely that is the only justification for bringing forward a clause of this kind. Surely the noble and learned Lord the Lord Advocate can deal with that question, and surely he ought to know the answer to my question as to how many convictions of this kind there have been within any significant period of time where the judges have refrained from imposing such a sentence? Can he not answer that?

Lord Mackay of Drumadoon

With the greatest respect to the noble and learned Lord, he cannot have it both ways. He cannot ask me to provide precise information to enable him to pursue the matter at a later date if he is not prepared to allow me a similar opportunity to look at the statistics to deploy the argument that I would wish. I remind him of an argument which I advanced earlier which is that this provision would deal with convictions under a Great Britain-wide statute. One has not just to look at the position in Scotland; one has to look at the position in England as well. I am unaware of any statute where offences apply north and south of the Border but the penalties are different. That is part of the policy that lies behind this clause, as has been made clear when the Crime (Sentences) Bill was debated, and as has been made clear on a number of occasions this afternoon when this Bill has been debated. I believe it would be more profitable to the Committee to answer the factual question which was asked. With respect, that is what I would prefer to do.

Lord McCluskey

I shall look forward to receiving the answer to the questions I have put. Under the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 44 to 49 not moved.]

Lord McCluskey moved Amendment No. 50: Page 4, line 39, at end insert ("and the foregoing circumstances shall include any known circumstances relevant to the commission of the two other offences").

The noble and learned Lord said: I hope that Amendment No. 50 will allow me to obtain some information from the noble and learned Lord the Lord Advocate, whether now or at a later stage. The amendment refers to page 4, line 39 of the Bill. The Committee will see that there is no mention of circumstances relating to the known circumstances relevant to the commission of the two other offences.

I should like to know from the noble and learned Lord the Lord Advocate, first, whether he will explain what provision in the Bill allows the judge, when considering the question of exceptional circumstances, to look at the known circumstances or any of the earlier offences. Secondly, given the fact that Scottish criminal records as made available to the courts do not disclose whether a trafficking offence was in respect of a Class A, Class B or Class C drug, how will the provision work? Have the Government some way of determining whether or not the previous convictions listed in the SCRO list as simply Section 5(3) or Section 4(3)(b), or whatever it may be, are trafficking in a Class A, Class B or Class C drug? Thirdly, if the circumstances of any of the earlier offences may be relevant to the judge's exercise of his duty under the section, what proper records are there of the circumstances of the earlier offences?

Lord Mackay of Drumadoon

As regards the first question, Clause 205B(3), as introduced into the 1995 Act by Clause 2 of this Bill, would entitle the court to look at the known circumstances both of the offence before the court and the previous conviction. That has been the consistent position of the Government throughout this legislation as I have explained already today. The noble and learned Lord is quite correct. The lists of previous criminal convictions as issued by the Scottish Criminal Records Office do not contain detail about the particular type of drug. That is why there was value in the point raised by the noble Lord, Lord Sewel, earlier today: that the procedure for laying details of the circumstances of the first qualifying offence before the court will have to be addressed. I make no secret of that. But for the reasons I explained earlier, I see no practical reason why, with common sense on all sides, and the assistance of an act of adjournal passed by the court, if the court deems it necessary, the necessary procedure cannot be followed. I hope that that provides reassurance in response to the amendment which I understand is a probing amendment.

Lord McCluskey

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCluskey moved Amendment No. 51: Page 4, line 43, at end insert— ("( ) Where the court has imposed a sentence in terms of subsection (2) above, it shall also require the person so sentenced to attend a drug awareness programme.").

The noble and learned Lord said: I beg to move Amendment No. 51 and speak to Amendment No. 52. I was invited by SACRO to advance Amendments Nos. 51 and 52, and I do so. They both relate to the same point.

In essence, SACRO suggests—and I agree with the suggestion—that the best means of reducing the crime rate in relation to drug-related offending is through the treatment of the offender; in other words, through counselling and education for users of drugs, especially those who are engaged in drug trafficking in order to support their habit. There is a good deal of experience to suggest that such people can be cured if they are properly treated. I suggest that this amendment will enable the Committee to inform the Government that we should like to see people who are convicted in this way being required to attend a drug awareness programme. That programme could be within the prisons, because the persons to whom this provision would apply would be going to prison for something of the order of seven years. I am interested to know if the noble and learned Lord is able to confirm whether funds are to he made available for curing such people, as well as funds being made available, at a cost of about £30,000 per head, to warehouse them in our prisons.

The second of the amendments relates to the nature of the drug awareness programme. It refers to, a programme of instruction and counselling in relation to the abuse of drugs which is approved by regulations made by the Secretary of State".

The idea is that the Government should set up the parameters of this type of drug awareness programme and counselling. I beg to move.

Lord Mackay of Drumadoon

I am happy to agree with the noble and learned Lord that offenders in custody should be encouraged to address their offending behaviour and to tackle any problems they may have, which can include the problem of drug addiction. Clause 31(3)(b), to which we shall come in the fullness of time, seeks to increase that encouragement and award prisoners who respond to it.

However, like my colleague the Minister of State who spoke to virtually identical amendments in another place, I am not convinced that the programmes referred to in these two amendments should be prescribed in the manner suggested. Nor am I persuaded that it is necessary to approve programmes under a statutory regulatory system.

To elaborate on some of my concerns in relation to these amendments, first, I draw attention to the danger of setting a precedent that the court should attach conditions to custodial sentences. This could lead to demands for a whole range of conditions which might make it difficult for those involved, both in the Prison Service and in local authorities, to respond in a flexible and sensible manner to the changing needs of individual offenders. It may also be difficult for the court to assess at the point of imposing sentence which programmes it would be most appropriate for the offender to undertake.

Some offenders who will be sentenced in terms of Clause 2 undoubtedly will be people with drug problems; but others will not. Those others will simply be criminal businessmen, if I might use the term, who have become involved in the drugs trade not because of any wish to feed their own addiction but for purely mercenary purposes. Compulsory attendance at a programme of counselling for such individuals would be a waste of time and resources. Indeed, their compulsory presence at such courses which they did not wish to attend might be counter-productive and interfere with the work being done with other prisoners who are in need of such help. Attendance at a programme of counselling is clearly ineffective if the individual offender is unwilling to participate. While the clause to which I referred earlier will seek to encourage participation in such courses, it cannot compel it, and it would be unrealistic to expect it to do so.

As the noble and learned Lord will be aware, the Scottish Prison Service already challenges prisoners to participate in programmes which seek to address offending behaviour. That is not limited to drugs offenders but certainly includes those who fall into that category. There is a large number of progammes across the prison estate dealing not only with drugs but with alcohol abuse, sex offending and anger management. Funds are available for that. I do not have the precise figure available to me at the Dispatch Box. However, if it is of interest to the noble and learned Lord, I am happy to provide it.

The success of Clause 31, to which I have referred, will in part depend on the existence of such programmes. I believe that all sides of the House are agreed on the desirability of them; there are varying degrees of realism as to how much can be afforded. Clearly there is a commitment on the part of the Prison Service to provide as many of these programmes as is practicable. I hope that on that basis it will prove possible for the noble and learned Lord to withdraw this amendment and the following one.

Lord McCluskey

In relation to the point of principle which the Lord Advocate has mentioned—the difficulty of attaching conditions to sentences—I do not see any reason why one should not make a judgment on the merits of each proposal and decide whether to do it. If by attaching a condition one can reduce the risk of re-offending, it surely must be worthwhile considering.

The person who is caught and convicted for a third time of trafficking in a Class A drug is, in my experience, extremely unlikely to be one of the "Mr. Bigs". He is very likely to be an addict. It is addicts who get caught in this kind of way, because they are feeding their habit. It is very likely that the people dealt with under this clause will be people who need treatment for drugs.

I shall study the Lord Advocate's reply, perhaps tomorrow, and see whether I want to take the matter further on another occasion. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 52 not moved.]

Lord Mackay of Drumadoon moved Amendment No. 53: Page 5, leave out lines 8 to 18.

The noble and learned Lord said: This amendment was spoken to with Amendment No. 4. I beg to move.

On Question, amendment agreed to.

Lord McCluskey moved Amendment No. 54: Page 5, leave out line 30.

The noble and learned Lord said: I can deal with this amendment very shortly. The curious thing is that according to the provision on page 5, lines 29 and 30, a judge might in certain circumstances hear himself saying to the accused, "You will go to prison for five years, 219 days". I should be rather ashamed to pass such a sentence; I should feel that I should render myself ridiculous. I should like to know what the basis of the provision is. I have been trying hard to work out where the five years 219 days comes from but my arithmetic is not up to it. Perhaps the noble and learned Lord the Lord Advocate will be good enough to explain where he gets that figure from and what its justification is. I beg to move.

Lord Mackay of Drumadoon

The figure comes from deducting 20 per cent. from seven years. I have to confess not to having checked the arithmetic myself, but that is what this part of the clause seeks to achieve.

It is accepted that a provision of this kind is unusual in Scots law but it is required in order to enable the court to take account of a guilty plea in a Clause 2 case, as I indicated earlier it could do, and to impose a reduced sentence which it might otherwise be unable to do because of the statutory minimum sentence.

The phraseology of the terms in this clause is slightly different from that in the English clause but the objective is the same: to have a 20 per cent. discount from the seven-year mandatory sentence. I hope with that explanation it will prove unnecessary for the noble and learned Lord to press the amendment.

Lord McCluskey

I do not intend to press it. I tried to do that calculation, allowing for leap years, and did not manage to get the result. No doubt the noble and learned Lord will have the arithmetic checked and, if it does not work, he will go on to explain it.

Perhaps I may add two points in relation to this matter. First, it is a pity that the Notes on Clauses, which I thought were rather poor in relation to this Bill, did not explain a matter of that kind. It would have saved me having to ask the question.

Some newspapers of a certain kind have been carrying information based upon briefings supplied by persons I know not who which indicate that I have put down a large number of wrecking and destructive amendments designed to delay the progress of the Bill. Is the Lord Advocate able to confirm that that is not so or, alternatively, to name which of my amendments that have been discussed during the course of today fall into that category?

Lord Mackay of Drumadoon

I do not think that supplementary observation arises directly out of my response. I am happy to concede that as far as this amendment is concerned there can be no question that it could be described as a wrecking amendment. It might be possible to accord that description to others, but I do not think it would be a profitable exercise at this point of the evening to go through each and every amendment we have discussed. No doubt if the noble Lord wishes to discuss it further, we can do so informally and not trouble other noble Lords.

Lord McCluskey

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 2, as amended, shall stand part of the Bill?

Lord McCluskey

I gave notice of my intention to oppose the Question but, having regard to the discussion we have been able to have in relation to the amendments, I do not propose to maintain that position.

Clause 2, as amended, agreed to.

Lord Mackay of Drumadoon moved Amendment No. 55: After Clause 2, insert the following new clause—

MEANING OF "CONVICTION"

(". After section 205 of the 1995 Act there shall be inserted the following section— "Meaning of "conviction" for purposes of sections 205A and 205B. 205C.—(1) For the purposes of paragraph (b) of subsection (1) of each of sections 205A and 205B of this Act "conviction" includes— (a) a finding of guilt in respect of which the offender was admonished under section 181 of the Criminal Procedure (Scotland) Act 1975 (admonition); and (b) a conviction for which an order is made placing the offender on probation, and related expressions shall be construed accordingly. (2) This subsection applies where a person has at any time been convicted of an offence under— (a) section 70 of the Army Act 1955; (b) section 70 of the Air Force Act 1955; or (c) section 42 of the Naval Discipline Act 1957. (3) Where subsection (2) above applies and the corresponding civil offence (within the meaning of the Act under which the offence was committed) was— (a) a relevant offence within the meaning of section 205A of this Act; or (b) a Class A drug trafficking offence within the meaning of section 205B of this Act, that section shall have effect as if he had been convicted in England and Wales of the corresponding civil offence.".").

Lord Mackay of Drumadoon

I spoke to this amendment with Amendment No. 4. I beg to move.

On Question, amendment agreed to.

Lord McCluskey moved Amendment No. 56: After Clause 2, insert the following new clause—

LORD ADVOCATE TO EXPLAIN CERTAIN PROSECUTION DECISIONS

(" . After section 205 of the 1995 Act there shall be inserted the following section—

"Lord Advocate to explain certain prosecution decisions.

205C.—(1) When the Lord Advocate decides to indict a person in the High Court on a charge of committing a qualifying offence within the meaning of Part I of Schedule 5A to this Act or of committing a Class A drug trafficking offence as defined in section 205B(5) of this Act at a time when he is a person to whom section 205B(1)(b) applies, the Lord Advocate shall prepare a full written statement of his reasons for indicting the person in the High Court rather than the Sheriff Court, and— (a) a certified copy of that statement shall be placed before the trial judge after the person has been convicted and before he has been sentenced or otherwise dealt with; and (b) the trial judge shall have regard to that written statement before imposing any sentence of imprisonment or detention. (2) When the Lord Advocate decides to indict a person in the Sheriff Court on a charge of committing a qualifying offence within the meaning of Part I of Schedule 5A to this Act or of committing a Class A drug trafficking offence as defined in section 205B(5) of this Act at a time when he is a person to whom section 205B(1)(b) applies, the Lord Advocate shall prepare a full written statement of his reasons for indicting the person in the Sheriff Court rather than the High Court, and— (a) a certified copy of that statement shall be placed before the sheriff after the person has been convicted and before he has been sentenced or otherwise dealt with; and (b) the sheriff shall have regard to that written statement before imposing any sentence of imprisonment or detention.".").

The noble and learned Lord said: I beg to move Amendment No. 56 which has not been discussed. The purpose of the amendment is, I think, plain from its terms. It arises from a concern which I have expressed both today and at Second Reading, namely that the Lord Advocate takes his decisions in secret and he is not answerable either to Parliament or to anyone else in respect of them. I give an example. In a recent case four persons were charged with murder and attempted murder and appeared in the High Court. On the morning of the trial the Crown accepted a plea of guilty to murder in respect of one of them and not guilty in respect of the other three and pleas of not guilty from all in respect of the attempted murder charge. These were people who had been held in custody for in excess of a 110 day period. The Advocate Depute was not able to explain the decision in court and the Lord Advocate, to whom I wrote about the matter, replied chiding me for raising the matter and suggesting that this was not a matter to be raised in public.

I only mention the case to illustrate the point that there can be cases in which the Lord Advocate takes very important decisions of this kind and no one understands them. There was a case many years ago which became quite notorious, the Sweeney case, in which something of that kind happened.

When we come to the provisions of this Bill, particuarly in relation to Clause 1 and the mandatory life sentences, the power of the Lord Advocate will be very considerable indeed because he always has a choice as to whether to indict a case in the High Court or to indict the case in the sheriff court. When he exercises that choice and takes the decision, his decision is taken in secret. It is unreviewable, it is not ever explained and if, indeed, one asks for an explanation of such a decision, as I did when the present noble and learned Lord the Lord Chancellor was the Lord Advocate, the Lord Advocate will refuse to give it.

Given the general background of plea bargaining, as happens in jurisdictions where there are provisions of a similar kind, particularly in the United States but not confined to the United States, I think we have to be very careful about the use of the power of the Lord Advocate.

Accordingly, the purpose of the new clause is to require the Lord Advocate to prepare a full written statement of his reasons for indicting the person in the High Court rather than the sheriff court or vice versa and to place that before the court so that there is some public scrutiny and some public answerability in respect of these vitally important decisions which can affect a person's life so dramatically. I beg to move.

Lord Mackay of Drumadoon

As the noble and learned Lord acknowledges, the new clause would require the Lord Advocate to give reasons for the choice of court in which to prosecute any qualifying offence or a drug trafficking offence where an accused had two relevant previous convictions. Where the provisions set out in this clause apply, the court would have to have regard to the statement containing the Lord Advocate's reasons for the choice of court.

Noble Lords may be aware that at present proceedings are taken in the High Court where that is required by law; for example, in cases of murder, rape or treason, or where the court considers that the offence is sufficiently serious, having regard to the gravity of the offence and the accused's previous convictions, to merit a sentence which only the High Court can impose. Exceptionally there will be a small number of cases which are prosecuted in the High Court because of their particular complexity or sensitivity, even though the sentence which might be expected would be one which would fall within the jurisdiction of the sheriff.

Neither Clause 1 nor Clause 2 of the Bill seeks to interfere with the Lord Advocate's discretion to choose the forum in which to indict a case. Nor will this new clause do so, because its only effect would be to require the Lord Advocate to give reasons for exercising his discretion. The noble and learned Lord will be well aware that there is a long-standing convention that the Lord Advocate does not give reasons for such decisions. As he knows, that convention also applies to the Lord Advocate's accountability to Parliament. The Lord Advocate is accountable to Parliament for his actions, but it is only in the most exceptional circumstances that Parliament would seek to have the Lord Advocate explain the reasons for a particular decision. What this new clause would do, however, is to make commonplace what only happens at present in the most exceptional of circumstances.

The noble and learned Lord made reference to some correspondence about a particular case. Obviously, I do not have that correspondence before me, but even if I did, I am doubtful whether it would be helpful for me to refer to the detail of what passed between a senator and the Lord Advocate in private correspondence about a particular case.

The Lord Advocate's decision as to which forum to choose will be based on the whole of the circumstances of the case as known to the Lord Advocate or his Crown counsel at the stage at which the decision to serve indictment is taken. The information which influences that decision, as the noble and learned Lord knows well, is confidential, a fact borne out by the passage from Hume to which I referred in the Second Reading debate. It would be unprecedented for the Lord Advocate to breach that confidentiality by disclosing the information on which the decision was based.

To the extent that the new clause would not require the Lord Advocate to refer to the facts of the case when giving his reasons, I do not understand what the clause seeks to achieve. If the facts of the case are not to be discussed, then the only reason that the Lord Advocate would give for the choice of court would be that the particular court was considered to be a suitable forum in which to trial a case, having regard to the sentencing power of the court and the circumstances of the case as known to him at the date the case was indicted. The Committee will appreciate that that will be little more than a statement of the obvious. But that is almost certainly all that could be said in relation to a qualifying offence where the accused did not have a previous conviction for a qualifying offence. The explanation for the decision might be more complicated in those cases where there was a conviction in the High Court which would require the imposition of a mandatory sentence under Clause 1 or where there were previous convictions relevant to Clause 2.

If it were the Lord Advocate's policy always to prosecute such cases in the High Court unless it appeared to him that the court was likely to hold that there were exceptional circumstances which would justify departing from the imposition of a mandatory sentence, then the noble and learned Lord's new clause would result in the following. Where proceedings were taken in the High Court, the Lord Advocate would give as his reason the fact that this was a case in which the court would be required to impose a mandatory sentence. On the other hand, if proceedings were taken in the sheriff court, the Lord Advocate would state that the case was being prosecuted in the sheriff court because it was anticipated that the court would be likely to hold that there were exceptional circumstances such as to justify not imposing a mandatory sentence. That is if the policy of the Lord Advocate was always to prosecute, unless it appeared to the Lord Advocate that the court was likely to hold that there were exceptional circumstances. Whether that would be the policy that any Lord Advocate would follow I would not begin to commit myself to at this stage.

Again, I have great difficulty in seeing what all this would achieve. There is, however, another objection. If, as I believe the noble and learned Lord, Lord McCluskey intends, the intention is to force the Lord Advocate to make his position clear before the case is called to court, that is fundamentally objectionable. The decision as to forum is taken in the light of the facts and circumstances as known to the prosecutor at that stage in the proceedings. As Hume, as I recollect it, has said, it is well known that the Lord Advocate may have private information available to him. As the noble and learned Lord knows well, what happens at the trial would require to be taken account of by the judge in addressing the issues which we have been discussing on more than one occasion as the afternoon and evening have worn on. Therefore, I doubt whether any practical purpose would be served in departing from this very longstanding convention, which is central to the system of the independent public prosecutor in Scotland.

For all these reasons, I hope that the noble and learned Lord will be persuaded that it would not be appropriate to have a clause in the Bill in the terms set out in Amendment No. 56.

Lord McCluskey

Of course, I accept that the tradition to which the Lord Advocate refers is a longstanding one, and indeed a greatly respected one in Scotland. The terms of the clause which I have suggested make it plain that the revelation of the reasons of the Lord Advocate is made to the judge. There is no public disclosure. The trial judge in the High Court or the sheriff in the sheriff court will receive a copy of the statement, not before but after the person has been convicted. At that stage he can have regard to it. It becomes plain then that a judge or a sheriff who has seen such a statement can go, if he feels disquiet about the decision-making within the office of the Lord Advocate, either to the Lord Justice General or to a Sheriff Principal to try to raise the matter and to see whether something can be done about it.

The point that I seek to make through the amendments which deal with this matter is that when the Lord Advocate decides to send a case to one court rather than to another, his decision is made privately, not publicly. When a judge decides to send a person to prison for five years or 15 years or simply to put him on probation, whatever it may be, his decision is made publicly. He can be called upon to give and does give reasons, and those reasons are subsequently published. There is a very considerable difference between the fact that the Lord Advocate exercises what are quasi judicial functions privately and unreviewably, whereas the judge exercises them publicly.

Lastly, in relation to the exercise of such a discretion by the Lord Advocate, when three or four people appear in court all charged with murder and pleas of not guilty are accepted on the morning of the trial without one word of evidence having been led and they simply walk out of the court, surely the public have some right to know why it is that people who have been detained for four or five months and brought to court on a charge of murder, are then released. Perhaps it is time to review even the longstanding tradition to which the Lord Advocate refers. I believe that he has given me all the answer that he seeks to give me tonight and if that is so, as I detect it is from his worn smile, I simply beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

Clause 3 [Imposition of supervised release orders on conviction of qualifying offence]:

Lord Sewel had given notice of his intention to move Amendment No. 57: Page 5, line 36, leave out ("on passing sentence") and insert ("shall").

The noble Lord said: I had intended to move Amendment No. 57, and to speak to the consequential amendments, Amendments Nos. 58 and 59.

Lord Mackay of Drumadoon

In view of the lateness of the hour, it may assist the noble Lord if I indicate that I wish to reflect further on what lies behind these amendments. I have some anxiety that the existing provisions are not appropriate and I intend to discuss the matter further. I will do so informally if that will save speaking in detail to these three amendments.

Lord Sewel

I am pleased to accept what the noble and learned Lord the Lord Advocate says. At this stage I shall not move the amendment.

[Amendment No. 57 not moved.]

[Amendments Nos. 58 to 60 not moved.]

The Earl of Mar and Kellie moved Amendment No. 61: Page 5, line 47, at end insert— (" An example of an "exceptional circumstance" would be where the social work department was unable to provide adequate resources to enable a supervised release order to he adequately fulfilled.").

The noble Earl said: Amendment No. 61 extends subsection (1A). The Committee will be familiar with the fact that statutory services for offenders are provided by Scottish local authorities, social work departments and also some voluntary organisations such as the Apex Trust and SACRO.

It is an unusual fact that most of the offender social work is funded 100 per cent. by central government, and hence by the Scottish Office. Though not declared, there exists a glass ceiling through which offender services funding may not rise. My point is that when a local authority social work department is unable to provide a full or adequate service to offenders and the courts, it is not because the local authority's budget does not run to it; it is because the Scottish Office has not funded the service.

Provision of offender services and the supervision of supervised release orders in particular are at the whim of central government, and the amendment is necessary to begin to secure those services. I beg to move.

Lord Mackay of Drumadoon

The protection of the public is not something which should be dictated by resources; it is a function of local authorities throughout Scotland to provide post-release supervision for offenders and to submit their strategic plans for offender service provision to central government as part of the operation of the 100 per cent. funding mechanism.

I can assure the noble Earl, who, as we all know, has extensive experience of social work, that since the introduction by the Government of 100 per cent. funding for this service, there have been no difficulties of the nature he describes and sees. In fact, the funding level for 1996–97 has been acknowledged as being sufficient to enable services to develop and in some cases expand.

The essential point is that where a court considers that supervision is needed to protect the public, it should make the appropriate order. It is for the local authority to make arrangements for the delivery of that supervision and to plan in connection with central government, who pick up the bill, that the appropriate services can be delivered. I hope, with that clear statement of the Government's position, that the noble Earl will not insist on his amendment.

The Earl of Mar and Kellie

I can assure the Committee that I am not looking for such difficulties. I am the last person who would wish to see supervised release orders not carried out. I partially accept what the noble and learned Lord says, and therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Dean of Harptree)

If Amendment No. 62 is agreed to, I cannot call Amendments Nos. 63 and 64.

[Amendment No. 62 not moved.]

Lord McCluskey moved Amendment No. 63: Page 6, line 22, leave out ("two") and insert ("five").

The noble and learned Lord said: In moving Amendment No. 63, I should like to speak also to Amendment No. 64. I should first make it abundantly plain (in case it is not plain to the noble and learned Lord) that I am entirely in favour of the introduction of supervised release orders of the kind envisaged by the clause. Indeed, I made my support for that proposal plain in my response to the White Paper last summer.

I am anxious to increase the power to impose a supervised release order—or rather, at least to increase the duration of such an order. I have experience of a case—a particularly notorious case; it is all in the public domain and so I can mention it—of John Cronin whom I sent to prison for life. The appeal court took a different view. The real problem with that offender, as I perceived it, was that the psychiatrist could not predict that he would ever be able to be released with safety. Had it been possible for the appeal court (when it imposed a sentence of six years in place of the life sentence that I imposed) to impose a supervised release order for a substantial period, that might have given some further protection to the public.

I support the general proposals and simply invite the Government to respond to my invitation to explain why the supervised release order cannot be longer than is envisaged by the clause as it now stands. I beg to move.

Lord Mackay of Drumadoon

I readily acknowledge the noble and learned Lord's support in connection with this type of order and I can assure him that we have given careful consideration to the issue of the supervision periods as set out in the Bill. Supervision is recognised as being at its most effective in the early stages of an order. Thereafter, it builds constructively on that early impact. The clear indications are that the supervision will be most effective if the resources are targeted at ensuring that a significant effort is made with prisoners at an early stage of their release. To focus resources effectively, we must of necessity ensure that the total period of supervision is also focused on individual need and is not simply imposed as extensively as the amendments suggest. To that extent, therefore, and with a measure of regret, the Government are not persuaded to accept the amendments.

Lord McCluskey

I am satisfied with that answer. Given that the amendment would involve the expenditure of extra resources and that there may therefore be a technical objection to it, I beg leave to withdraw Amendment No. 63 and shall not seek to move Amendment No. 64.

Amendment, by leave, withdrawn.

[Amendment No. 64 not moved.]

Clause 3 agreed to.

The Earl of Mar and Kellie moved Amendment No. 65: After Clause 3, insert the following new clause—

CONDITIONAL LICENCE FOR PERSON CONVICTED ABROAD

(" .—(1) A person who is a United Kingdom citizen or who otherwise has an absolute right of abode in the United Kingdom and who is resident in the United Kingdom and who has been released from prison on conditional licence from a sentence of life imprisonment imposed by a court outwith the United Kingdom for an offence for which a court in the United Kingdom could have imposed a life sentence. may be served with a notice by the Secretary of State making him subject to the same conditions which he could have been subjected to if he had been released on licence from a life sentence imposed by a court in the United Kingdom. (2) A person served with such an order shall be subject to the jurisdiction of the relevant Parole Board within the United Kingdom as if the original sentence of imprisonment had been imposed by a court in the United Kingdom.").

The noble Earl said: This amendment stems from information passed to me about the McCafferty case. I believe that the person concerned intends to return to the UK from Australia. When he gets here, our authorities have no power to supervise him nor to recall him should his conduct imply that he is not behaving himself or should be recalled.

The amendment would give the Secretary of State the power to do that. In many respects, this amendment would cover a position similar to that of a person who has been repatriated during his sentence. That is the way in which I am hoping to sell the idea. If he had been repatriated during sentence rather than at the conclusion of his life sentence, he would have been released on life licence and would have been supervised and subject to recall.

I have one or two wee points to make about the amendment. It deals only with cases in which deportation from the UK is not available. That is because the person is a UK citizen. The power could not be used to deter people from entering the UK if they have a right of abode here. I suspect that a deterrent power could be in breach of international law. The power in the amendment is limited to lifers but could be extended to all persons released on licence or parole. It would perhaps be advisable to restrict the amendment to lifers and consider other cases at a later time if the principle was established in this case. I also suggest that the power should be restricted to cases where English and Scots law is broadly similar to the law of the overseas country. I hope that Australia has laws that are fairly similar to ours.

The power is permissive. The Secretary of State is not obliged to do it but merely has the opportunity to do it. The amendment is intended primarily to protect the public, but it is also fair in that it treats the individual in the same way as other lifers and makes available social work services and supervision. I am advised that this provision is necessary to confer powers on the relevant parole board. I beg to move.

11.30 p.m.

Lord Mackay of Drumadoon

I understand what lies behind the amendment moved by the noble Earl. The case of Archibald McCafferty, a life prisoner in Australia—whose name may be familiar to some noble Lords—highlights that there is no statutory means by which he can be made subject to the same licence conditions as would be applicable to a life prisoner who was released in the United Kingdom. The proposal is that he should be released in Australia, and, being a citizen of the United Kingdom, he has the right to enter this country notwithstanding his Australian conviction.

Noble Lords can be assured that the Government recognise the need to protect the public from offenders such as McCafferty who have been convicted of serious offences. The number of such offenders may be small but the risk that an individual may pose is potentially very significant. For that reason the Government are currently giving consideration to the introduction of legislation to provide for the supervision of serious offenders such as McCafferty. The intention would be to devise legislation that applied throughout the United Kingdom.

The issues involved are complex. There are fundamental legal as well as significant practical issues to be addressed. Among them is the need to consider how we can, in accordance with our obligations under the European Convention on Human Rights, place someone on licence and make him subject to recall to prison when that individual has not been convicted of any offence in this country. Moreover, there is an issue as to whether it is appropriate to impose licence conditions on someone if no such conditions exist in the sentencing jurisdiction.

There is the further knotty and very difficult problem of the retrospective application of a change of law to those who have served, or are currently serving, very long prison sentences in different parts of the world. The proposal is that they would have to be subjected to conditions in this country which did not flow from anything that they had done in this country but something that they had done previously which had not been aggravated in any sense by any further criminal offending.

On the practical side, arrangements would need to be put in place so that the United Kingdom authorities could identify the offenders when they returned to this country and could be formally placed under licence upon their arrival. As noble Lords are well aware, those who hold UK or European Union passports, and many others with a right of abode in this country, are not subject to immigration control and can enter the United Kingdom freely. Although it would be more usual for foreign nationals to be deported to their countries of origin, it might still be possible for them to return to this country. We will need to look very closely at such a possibility and how it is to be handled by our immigration authorities. Further, we will have to make arrangements to ensure that the prisoners concerned are aware of their obligations before they return to this country or, at the very latest, at the point of arrival.

I am sure that noble Lords fully appreciate the practical and legal difficulties that require to be addressed. However, I assure the Committee that the Government are giving close consideration to these issues. They are not easy to deal with and a solution may not be imminent, but the importance of addressing the issues involved is not minimised. I am grateful to the noble Earl for having raised the issue. With my explanation, I hope that he will find it possible to withdraw the amendment.

The Earl of Mar and Kellie

There is a point I should like to make before seeking leave to withdraw the amendment. We have already established that supervised release orders are separate from the sentence. They are not part of the sentence. So such a person could be dealt with in that way. Mr. McCafferty would not be dealt with by licence; he could be put on a supervised release order on arrival. I shall leave that point.

I am grateful to the noble and learned Lord for his answer. I am interested that appropriate legislation is being considered to deal with this serious situation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

House resumed.