Crime (Sentences) Bill

HL Deb 18 March 1997 vol 579 cc788-831

4.34 p.m.

Report received.

Clause 2 [Mandatory life sentence for second serious offence]:

Lord Carlisle of Bucklow moved Amendment No. 1: Page 1, line 25, at end insert ("other than any offence in respect of which the offender is a rehabilitated person for the purposes of the Rehabilitation of Offenders Act 1974.").

The noble Lord said: My Lords, the amendment relates to Clause 2 of the Bill which provides that on the second conviction of various offences a person should be sentenced to an automatic sentence of life imprisonment. As I have always accepted, the objective of the clause is somewhat different from the mandatory provisions of Clauses 3 and 4. It is argued that the purpose of the clause, to make mandatory life sentences, is not so much to deal with the length of time that the person spends inside prison—it is proposed that the Government should still have the power to make a tariff order as to the length of time a person should stay—but to cover the release of that person back into society. To that extent I accept that this clause is different from the two clauses on mandatory sentences on burglary and drugs as regards which this House has already debated amendments to provide that no mandatory sentence needs to be passed if it is against the interests of justice.

Having accepted that, I still believe that there are major objections to the clause. First, it has the effect of increasing enormously the number of cases where a person is to be given a mandatory life sentence. Secondly, it is ironic in a Bill which claims to deal with honesty in sentencing that the intention of the Government is that the court will have to pass a life sentence and say, "But that doesn't mean that you will serve life". Instead the court will say, "You will go to prison for life and serve a sentence of two years". That sounds to me a recipe for bringing the courts into disrepute.

Thirdly, since the tariff system is without regard to the provisions on early release, it means that none of those people—many of them, according to the Minister, dangerous people convicted of a second offence of a serious or sexual nature—will have any incentive for good behaviour in prison. The Minister may answer that the parole review will decide whether the individual comes out. But that will be assessed on risk. Although one of the assessments may be good behaviour, the provision to encourage people to behave well in prison will have no effect on those people because they will serve the tariff in full, irrespective of whether or not they behave well.

I see the Minister shakes her head. I shall of course give way. However, I asked her that specific question on the Question whether Clause 1 shall stand part. She agreed that the provisions on early release would not relate to the tariff sentence recommended to be served.

Baroness Blatch

My Lords, I shook my head simply because the noble Lord will hear—I invite him to discuss the amendments later—that behaviour will be taken into account by the Parole Board when considering release arrangements. The primary function is to consider the safety of the public.

Lord Carlisle of Bucklow

My Lords, that is exactly what I said, with respect. While I concede that behaviour may be one of the matters taken into account in deciding whether a person should be released, certainly under the provisions for early release which the Government have now tabled it will not be the only condition; and there will not be the deliberate encouragement of good behaviour for those who are sentenced under Clause 2 that exists under the other provisions.

Finally, as has been said, for example, by bodies such as Women Against Rape, a mandatory life sentence will inevitably lead to a considerable reduction in pleas of guilty and a considerable increase, therefore, in the number of cases tried in which the victims will be required to give evidence. In addition, although I know that my noble friend the Minister disputed this at Committee stage, I have absolutely no doubt that it will lead to an enhanced degree of plea bargaining in a way which we have not had in this country. I believe that there are strong arguments against the mandatory provisions for a life sentence for a second offence as set out in Clause 2.

The purpose of my amendment is much smaller in range. It accepts the principle that there should be mandatory life sentences for those with a second conviction of a serious or sexual nature but that the earlier conviction should not count if it is a conviction that is spent under the Rehabilitation of Offenders Act. The purpose of that Act, passed in 1974 at a time when the climate was perhaps different, with the support of the then Conservative Party and the recently retired Home Office Ministers, was that those who commit a crime, particularly at an early stage in their lives, should have the opportunity to live down that crime and to be rehabilitated. If they keep out of trouble in the future a stage would be reached when that conviction would be treated as spent and as if it no longer existed.

What are the periods involved? For anyone sentenced on the first offence to a term of imprisonment of longer than 30 months, the conviction never becomes spent. My noble friend the Minister says that she is concerned about the man or the woman committing serious offences. Under my amendment, if that first conviction produced a sentence of over 30 months it is never spent and the provisions of Clause 2 of the Bill apply. On the other hand, if the sentence was of between six months and two and a half years, that conviction becomes spent once the person has kept out of any form of trouble for 10 years. If a person who has committed one of the offences to which Clause 1 applies has been given a sentence of imprisonment of less than two and a half years but more than six months and commits another offence of the nature set out in Clause 2 within 10 years, Clause 2 will apply as it stands. If, on the other hand, he or she has "gone straight" for over 10 years, that conviction will not be of effect for the purpose of this clause.

Perhaps I may take an example given by the Lord Chief Justice on an earlier occasion. If a youth of, let us say, 16 or 17 is convicted of having sexual intercourse with a girl of 12, for which he receives a custodial sentence of some nature, at the age of 40 becomes involved in a fight in which as a result of one blow struck by him the person he is fighting falls, hits his head on a pillar and is killed, and is charged with manslaughter, the earlier conviction would not be taken into account.

If the period of imprisonment is of up to six months, the conviction becomes spent after seven years. If the sentence is a fine, it becomes spent after five years. If the sentence is of conditional discharge or probation, it becomes spent at the end of that period of probation or conditional discharge. The whole purpose of the Rehabilitation of Offenders Act is to grade the periods during which the offence will be held against the person on the basis of the severity of the sentence, which itself will be based on the nature and severity of the offence. If we are to have a system whereby the commission of a second offence of a wide variety of natures—here one is talking not only of rape but also of manslaughter and wounding with intent, among other offences (Section 18 of the Offences Against the Person Act)—surely it is right that we should have a provision in the Bill similar to that in the Rehabilitation of Offenders Act so that a conviction which is spent for all other purposes should be spent also for the purposes of the Bill.

Noble Lords may say that this is irrelevant and of little importance because, as the Government always tell us, this clause is aimed at the person who commits repeated dangerous offences. Therefore anyone who comes before the court for a second time save on a charge of rape, having originally been charged with one of the other offences on the list, is almost bound to have received a sentence of over two and a half years' imprisonment and therefore would not be affected by my amendment. But that is not so. The figures given by the Home Office in the White Paper published last year show that in 1994—I am open to correction as to the year—35 per cent. of those convicted of one of the offences mentioned in Clause 2 received no custodial sentence at all, whereas for those who went to prison the average term of imprisonment was 4.1 years. That means that in 35 per cent. of cases coming before the courts where people are convicted for a first time of an offence among those listed the court which tries the case does not consider any form of imprisonment to be appropriate.

If that is so, can it really be right when after 10, 20 or 30 years a person commits one of the other offences referred to in the list, having many years ago committed an offence for which it was not thought appropriate that he should go to prison, he should receive an automatic life sentence? I cannot believe that the Government intend that to be so and I cannot believe that they have thought it through.

With great respect to my noble friend the Minister, from what she or others outside have said—and I mean this in no personal way against my noble friend—the implication has been that those who oppose the Bill are in some way soft on crime. It is not a question of being soft on crime. For a person convicted of any of the offences listed in Clause 2, the maximum sentence is life imprisonment. If the court feels that life imprisonment is the appropriate sentence, it may give it; and it may give it whether the person appears for a first occasion or for a second occasion with a spent conviction. This amendment simply seeks no mandatory requirement to impose a second conviction where the first conviction by the very nature of the sentence imposed was shown not to be of the greatest gravity.

This comes back to the fact that the offences under Clause 2 are extremely wide. I take the example of manslaughter. If in the course of a fight someone strikes a blow which tragically kills another and he then pleads guilty to manslaughter, is it to be said that he has to go to prison for life because at some stage in the past he had one previous conviction among that list? There are the examples that Women Against Rape has given. Suppose a woman who has suffered years of aggravated violence, eventually in desperation strikes out and wounds the person who has been violent towards her and is convicted of wounding with intent. If on a previous occasion several years ago in a similar situation she committed an act which led to such a conviction and the court felt that in all the circumstances due to the provocation and the life that she has lived it would be inappropriate to send her to prison, is it seriously to be said that she must go to prison for life on the second occasion?

I do not want to repeat the speeches made at Committee stage of the Bill. I merely make the point that one looks at the offences and says, "But this person is charged with rape"—or attempted rape or manslaughter and those offences sound and normally are extremely grave. Within the degrees particularly of the manslaughter charge and the Section 18 charge there is such a wide degree of seriousness that there should be some recognition of that. I take what I believe to be the least recognition of all by saying that, when looking at the previous offence, if it is found to be one which has already been spent and the person has been rehabilitated for all other purposes, it should not count as a conviction for the purposes of Section 1.

I apologise to the House if my speech has been somewhat disjointed. I started it without knowing where my notes were and picked them up about half way through. I am not quite sure whether I have covered fully my intentions. But I believe very strongly that if this clause is to be carried with the mandatory sentence, the very least that we can do is ensure that spent convictions do not count. I beg to move.

Lord Ackner

My Lords, I should like to support the amendment. It seems to me that there is an element of retrospection operating. After the person has been of good behaviour for a sufficiently long time, he having had a sentence of less than 30 months, it seems to me that he has achieved a status—the status of a rehabilitated offender. The Bill removes that status, because if he commits any of the so-called serious offences, even though the particular offence that he has committed is of a very minor kind on the facts, he has lost his rehabilitated status. On the face of it, that would seem to be quite contrary to the appropriate principle that the criminal law should not be retrospective or retroactive.

Lord Thomas of Gresford

My Lords, I wish to support the amendment. First of all, let us take the statistic to which the noble Lord, Lord Carlisle, referred; namely, that, in 1994, 35 per cent. of people convicted of the categories of crime listed as serious offences in subsection (5) of this clause did not receive a custodial sentence. What are we to take from that? Are we to take it that the judges failed and that the judges were soft on crime? If that is to be the inference to be drawn, what about the role of the Attorney-General, who has a right to appeal a sentence that he considers not to be sufficient? On how many occasions has the Attorney-General appealed the 35 per cent. of convictions? Are we to assume that in 1994 the Attorney-General failed in his duty and that he is soft on crime?

What that one statistic illustrates better than anything else is the diverse nature of the categories to which the noble Lord, Lord Carlisle, referred. The danger is that the House will be blinded by the categorisation that appears in subsection (5). As the noble Lord, Lord Carlisle, said, under manslaughter the differences between one conviction for manslaughter and another are huge. A single punch outside a public house to a person who has an eggshell skull can result in a fatal injury. All those who have practised in the courts have experience of such cases.

The noble Lord also referred to the gravest provocation that can arise through domestic violence, which would reduce a murder charge to manslaughter through the defence of provocation, and very frequently results in a battered wife receiving a non-custodial sentence, even though she has killed her husband in circumstances of provocation.

Another category that frequently arises is that of a person who is a fringe party to a joint enterprise. With other types of offence which are covered—for example, wounding or causing grievous bodily harm with intent—there may be a group of people involved. One person strikes the blow but the others who happen to be with him are caught up in a joint enterprise of one kind or another and consequently their criminality is that much less. On very frequent occasions, they do not receive sentences of imprisonment above 30 months. Every single offence listed can be graver or less grave depending on the particular circumstances. That is what judges have traditionally been for—to sort out what is a serious offence and what is not a serious offence. But subsection (5) defines serious offences and categorises them in that way.

The purpose of the amendment is to ensure that rehabilitated offenders, those whose sentences originally were not more than 30 months and who have not received serious or long sentences of imprisonment, should not be caught by the mandatory sentences and life sentences that are now proposed. It is sensible that one should have regard to the sentence imposed on the first offence before one imposes a mandatory life sentence for something later. I support the amendment.

Baroness Blatch

My Lords, this amendment raises the important issue of qualifying convictions for the automatic life sentence provided by Clause 2 of the Bill. As it stands, the Bill provides that convictions for the serious offences covered by Clause 2 count as qualifying convictions irrespective of the time that has elapsed between them and irrespective of whether the qualifying convictions were received prior to commencement.

The effect of the amendments would be that convictions would not "count" as qualifying convictions if they were "spent" under the terms of the Rehabilitation of Offenders Act 1974. No new points have been made by my learned friend in the course of discussing the amendment.

The purpose of the 1974 Act is to help those who have offended, who have served their sentence and then led a law abiding life, to go about their daily life and to obtain employment without being unfairly penalised or disadvantaged. It is an opportunity for someone who has truly reformed to wipe the slate clean and start again. That is fair and reasonable. But the 1974 Act does not mean that if someone commits a further offence, his original offence should be ignored in any future criminal proceedings. The 1974 Act expressly provides that previous convictions may be taken account of in criminal proceedings whether or not the conviction is to be disregarded for the purposes of the Act.

It is already the case that previous convictions, whether spent or otherwise, can be taken into account by the courts in sentencing. Under provisions in the Criminal Justice Act 1991 courts may take account of previous convictions when deciding the seriousness of the offence for which they are sentencing. The only exception to that is in respect of convictions for which an absolute or conditional discharge is given. There is express statutory provision in Section 1C of the 1973 Powers of the Criminal Courts Act which makes clear that such discharges are not deemed to be convictions for any purpose except in certain limited circumstances. That reflects the fact that the court has taken the view that although an offence has been committed it is inexpedient to inflict punishment.

The provisions in Clause 2 of the Bill are consistent with that wider approach, as indeed are the mandatory sentence provisions in Clauses 3 and 4 of the Bill which my noble friend does not seek to change. That is, I believe, the right approach. I see no reason at all why "spent" convictions should not be taken into account in respect of the mandatory minimum penalties in the Bill. The fact that a conviction was obtained several years ago does not necessarily mean that it is of no consequence or that it should be disregarded when the question of public safety is concerned.

The purpose of the automatic life sentence under Clause 2 is to provide greater protection for the public from serious violent or sexual offenders. The offences covered by Clause 2 of the Bill are some of the most dangerous offences—which put victims' health and well-being, and sometimes their very lives, at serious risk. The fact that the offender committed one of those offences several years ago and that on that occasion the judge did not see fit to impose a long prison sentence does not, to my mind, mean that the offender's first offence should automatically be ignored. Nor does it mean that we can assume that he is not a risk to the public.

It should be noted that convictions can become "spent" in as little as five years for most non-custodial sentences, seven years if the custodial sentence is not more than six months and 10 years if the custodial sentence is up to two-and-a-half years. It seems to me that the public should have the guarantee that someone who is, say, convicted of a serious wounding offence, for which he received 30 months' imprisonment, and is later convicted of attempted murder, will receive a life sentence even if the second offence is committed 10 years after the first conviction. If my noble friend's amendment was accepted that would not be the case. The courts would of course have the discretion to impose such a sentence. But, as I have said, in my view, unless there are exceptional circumstances about the case which the courts can of course take account of under the Bill, the public should have the assurance the automatic life sentence provides; that is, that an offender who has committed not just one but two serious offences will be detained unless he is judged not to be a risk to others.

A provision that required all spent convictions to be ignored not only introduces an element of uncertainty but could also lead to some anomalous outcomes. The question of whether an offender's previous convictions counted would depend on whether the second offence was, for example, committed 10 years and one day after conviction for the first offence or nine years and 364 days after the convictions. Clause 2 as it stands is clear and straightforward. Excluding "spent" convictions from its scope would not improve the provisions and could considerably reduce the protection that Clause 2 is intended to provide.

The noble Lord, Lord Thomas of Gresford, referred to the inoffensive single punch. The courts have at their disposal other ways of dealing legally with such cases. Section 18 of the 1861 Act, wounding with intent, is covered by Clause 2. However, as the noble Lord knows, Section 20 of the Act, wounding without intent is not covered by Clause 2.

Perhaps I might say to my noble friend to confirm my intervention that behaviour will be taken into account; of course it will not be the sole determinant for release. I was pressed by my noble friend Lord Belstead, and readily agreed to discuss it with my right honourable friend the Home Secretary, and amendments are coming forward in my name. They will confirm that behaviour will be taken into account. Indeed, that is the way in which the Parole Board works at the moment.

The noble Lord, Lord Thomas of Gresford, talks about someone being almost killed by a simple punch. If the simple punch is caught by the clause, it is with intent; he intended to harm. The simple punch may have seemed inoffensive at the time but, caught in the example given by the noble Lord, caused the person to be seriously injured. The noble Lord, Lord Thomas, sees such a punch as not being serious; but it is serious to the person who received it.

Lord Thomas of Gresford

My Lords, I was referring to manslaughter caused by a single punch, where intent is not required. It may be a person who aims a swinging blow which connects, so long as he intends to aim the blow; he may not intend serious harm. It is the manslaughter cases to which I refer, not the cases of wounding with intent.

Baroness Blatch

My Lords, we are talking about with or without intent in relation to the particular qualifying offence.

Lord Thomas of Gresford

My Lords, manslaughter is a qualifying offence. My point is that in manslaughter the largest divisions, the greatest gradations, occur between very nearly murder or the simple punch to which we have been referring.

Lord Ackner

My Lords, perhaps the noble Baroness will allow me to intervene. If there had been an intent in the fatal case to which reference has been made, it would be murder. In a manslaughter case no intent is required except to inflict the specific violence complained of.

Baroness Blatch

My Lords, again the noble and learned Lord makes my point. The person may not have intended to kill somebody, but will certainly have intended to harm somebody. The fact that the single punch knocked somebody to the ground and they died as a result would mean that it is a matter for the courts to determine whether that person intended to kill and therefore whether it was murder or manslaughter. However, the fact is that it is a violent offence and somebody was fatally wounded by the punch.

I come back to the principle. Noble Lords appear to be bent on finding ways of dealing more leniently with people who cause serious injury to members of the public. We are saying that repeated offences of violence, sexual or otherwise, should be regarded as extremely serious. My noble friend does not agree with Clauses 2, 3 and 4 and I respect that point. We agree to differ in that regard. But we regard violent and sexual offences as serious and believe that the minimum mandatory sentence is important and pertinent.

My noble friend Lord Carlisle referred to automatic life sentences as being inconsistent with honesty in sentencing. Again, the tariff that is set to reflect the seriousness of the offence is announced in open court. Everyone will know what it is and exactly how long the offender must serve before being released. On release the offender will be supervised for life. That is the point of the clause.

There is a balance to be struck between ensuring that the public are properly protected from dangerous and persistent offenders and ensuring that the courts have some discretion to set aside the mandatory penalty in certain circumstances. The Bill allows the courts to set aside the automatic life sentence in exceptional circumstances—which may include the circumstances of the previous offence, the current offence and any other relevant factors. I believe that this provides the necessary balance. I do not think the provisions would be improved by introducing uncertainty and what amounts to an element of luck on the part of the offender as to whether his previous conviction will count. I hope therefore that my noble friend will not press the amendments.

Lord Carlisle of Bucklow

My Lords, I am disappointed by that reply. I never suggested that because an offence was spent it should therefore be ignored for all purposes. Perhaps it was my fault for not making my position clear. Of course the courts can look at spent convictions. They can still look at spent convictions under my amendment. That is part of the history of the individual which they take into account when deciding what is the appropriate sentence. The purpose of my amendment was not—nor do I believe that, as drafted, it did it—to say that in future the courts should be oblivious of or ignore spent convictions. It was to say that if a conviction was spent, that should not automatically trigger a life sentence. Equally, with great respect, at the end of her remarks my noble friend the Minister came very near to saying that those of us who are critical of such Bills are in some way soft on crime. I repeat: I do not believe I am soft on crime. I have said that my amendment would not prevent the courts passing either a life sentence or a long determinate sentence, whichever they thought was appropriate, in a particular case. What I object to is the mandatory provisions which will interfere with the ability of the courts to do justice.

Perhaps I may say to my noble friend with great respect—this may have been dealt with by the noble and learned Lord, Lord Ackner—that the point I was making and the point that the noble Lord, Lord Thomas, was making was that manslaughter does not require an intent to do serious bodily harm. The Minister insisted that those who kill with one blow, if they intend to do serious bodily harm, should take the consequences. That would be murder. The difference with manslaughter is the causing of the death unlawfully but without intent to do serious bodily harm. If two people agree voluntarily to enter into a fight and one strikes the other and tragically that other dies, that is the unlawful infliction of harm even if there was no intention whatever to do serious bodily harm. With the greatest respect, the Government do not enhance the credibility of their proposal by misunderstanding many of the objections that have been made.

As the noble Lord, Lord Thomas, has reminisced on occasions, I wonder whether I might give one example. I prosecuted in a case at Lancaster Assizes which was defended, as it so happens—this is merely for background information—by my noble friend Lord Waddington, who is now in rather warmer climes than us in Bermuda. A wife was charged with wounding her husband with intent, the facts being that he had provoked her and provoked her until she eventually, in a fury, grabbed a carving knife and stabbed him. By the time the case came to trial the woman and her husband were reconciled. That wonderful judge, Mr. Justice Stable, who will be remembered by some of the learned Law Lords present, even said to the warder, "Take that lady out of the dock and let her come and sit in the witness box". On her plea of guilty to wounding with intent, to which she had no answer, he addressed her in a friendly manner, pointed out the possible disastrous consequences of what she had done and then told her to go home and live the rest of her married life in bliss with her husband. Is my noble friend really suggesting that instead he should have said, "You must go to prison for life"? Situations change so much.

Baroness Blatch

My Lords, I am grateful to my noble friend for giving way. If the lady commits that offence again at some time in the future, or indeed had committed a similar violent offence at some time in the past, is he saying that it would be a one-off isolated case to be treated leniently in the courts?

Lord Carlisle of Bucklow

My Lords, under the Bill it may not be necessary for it to be the same offence. It may be that a person at the age of 15 had been swept up as a look-out for a gang which was involved in a street robbery and even on that occasion may have been dealt with without being sent inside and then, 25 years later, appears in the circumstances which I have given. I realised, as I was making the analogy, that of course it is subject to there having been some other offence. But the purpose of the amendment is not to be weak on crime but to point out that the difference in degrees is such that one should have some flexibility in the courts. The amendment is an attempt to give the courts that flexibility.

I should have liked to press the amendment to a vote. However, as the noble Lord, Lord McIntosh, has not only abandoned the support that he was prepared to give to the proposal in Committee but is not even here, and since New Labour appears to have lost all principle of any kind so far as concerns this Bill, it would be merely wasting the time of the House. I just say this to the Minister. I think it is tragic that the Home Office is not willing to consider any of the proposals that are put forward. I hope that noble Lords on the Liberal Democrat Benches may choose to divide on the next amendment, which is wider in its interpretation than that which I moved. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.15 p.m.

Lord Rodgers of Quarry Bank moved Amendment No. 2:

Page 2, line 3, after ("unless") insert (", in the interests of justice,").

The noble Lord said: My Lords, the House will remember that five weeks ago, when the Bill was spending its first day in Committee on 13th February, it agreed significantly to amend what were then Clauses 2 and 3 of the Bill, which are now Clauses 3 and 4 of the Bill, on a Motion of the noble Lord, Lord McIntosh of Haringey. The amendment was supported on all sides of the Committee. Perhaps I may remind the House of the key parts of it.

It removed from the clauses to which I referred the phrase "exceptional circumstances" and in its place said that the courts should have regard to the specific circumstances which would make, the prescribed custodial sentence unjust in all the circumstances". I abbreviate the amendment slightly not to mislead your Lordships but simply to remind the House of the nature and purpose of the amendment to which it then agreed.

In essence, the amendments now before the House and standing in my name seek to do for what was Clause 1 and is now Clause 2 what was done in the amendments moved by the noble Lord, Lord McIntosh of Haringey. The amendments follow very closely the amendment which was tabled but not moved by the noble Lord, Lord Carlisle of Bucklow, on that occasion. The issue raised by the amendments and by the clause were fully explored at Second Reading and in the discussion we had on Clauses 2 and 3 of the Bill. I hope that the noble and learned Lord, Lord Bingham, will allow me, because it may well be that he wishes to contribute later to the debate, to quote from some remarks he made at Second Reading. They are a very forceful expression indeed of the shortcomings of the clause. Of the provisions of the clause, the noble and learned Lord said—

Lord Renton

My Lords, will the noble Lord give the column number of Hansard from which he is about to quote?

Lord Rodgers of Quarry Bank

My Lords, I normally give the column number after I have given the quotation. However, if it will help the noble Lord, I am referring to col. 986 of Hansard of 27th January. I think the noble Lord will find that I very fairly quote—I would not want to do otherwise—what the noble and learned Lord said. He said that the solution contained in Clause 1 was "irremediably flawed", that it would give rise to "indefensible anomalies" and that those anomalies were symptoms of "a radically unsound approach". In addition, he said, To some extent measures of this kind are also self-defeating". The noble Baroness, Lady Blatch, had a great deal to reply to in that debate. I do not believe that I am being unfair when I say that her references to the remarks of the noble and learned Lord were scattered throughout her reply at Second Reading. There were many other matters to discuss. I hope very much that she will take the opportunity today to reply in substance to these very important points.

Nothing much has changed since 27th January, except perhaps that the chairman of the Prison Governors' Association has expressed the deepest alarm at the growth of the prison population. That is something which was referred to by noble Lords on all sides of the House when they contemplated the possibility of this Bill adding between 10,500, which I believe was the Minister's figure, and 30,000 to the prison numbers. The chairman of the Prison Governors' Association, in a statement which seems to me to be without parallel, referred to the dangers which would come in terms of security because of overcrowding. As I say, that is in respect of the provisions of this Bill. He said in his remarks on Wednesday of last week, We can no longer cope with this unprecedented rise. No one in their right mind would seriously consider the introduction of prison ships and abandoned holiday camps as prison accommodation … The Prison Service has reached the crossroads where policy and operations meet". In the debate on that occasion, I referred at length—perhaps at too great a length—to the alternative forms of prison accommodation then being anticipated. I said, as regards the additional prisoners who have to be accommodated, Are they to be accommodated in disused military camps, in a former Pontins holiday camp … or is the front runner still a prison ship? Can the Minister say categorically that police cells will not be regularly used?".—[Official Report, 27/1/97; col. 982.] The Minister will recall that she was unable to reply to these questions given the pressure of time. Perhaps I may anticipate what she might have said, if that inversion of time is possible in your Lordships' House. In response to, Are they to be accommodated in disused miliary camps?", she might have said, "Possibly". In response to my question, in a former Pontin's holiday camp?", she might have said, "If we can get planning permission". In answer to the question whether the accommodation would be in a prison ship, she might have answered, "Yes". But what would she have said about the possibility of accommodation in police cells? In replying to this particular group of amendments, I ask her to say something to your Lordships about whether she anticipates sooner or later that the overflow of requirements for prison accommodation will involve stays in police cells. If the Minister is prepared to reply now I shall be very grateful.

Baroness Blatch

My Lords, I rise because I am fascinated by the line of argument that the noble Lord is using. We are talking about Clause 2. The amendments are about setting aside the mandatory life sentence in more cases than are allowed for under the Bill. There is no question whatever of curtailing, changing, modifying or varying the tariff that will be imposed by the courts. Therefore, the impact on prisons is not affected one iota by Clause 2 of the Bill. The courts will give a tariff which entirely reflects the seriousness of the crime. No one is suggesting otherwise.

Lord Rodgers of Quarry Bank

My Lords, I shall turn very briefly to the question of the tariff in a minute. I make it absolutely clear that the present problem of overcrowded prisons cannot relate to this Bill. The noble Baroness is saying that it cannot relate to Clause 2 either. If that is her point I shall consider it. My understanding of the Bill, given her remarks about the tariff, is that the prospect of the provisions of Clause 2 will in due course add to the prison population. However, if the noble Baroness says I am wrong I am willing to consider it. But irrespective of that, I hope that she will reply to the specific point that I have raised. Will she say in the course of her reply on this occasion whether in the near future we shall find that the overcrowding of our prisons will lead to the use of police cells? It is a simple question and I ask the Minister to give a simple reply, irrespective of whether she believes it is relevant to the discussion about this clause.

As regards the tariff to which she referred and which, I believe, was in the mind of the noble Lord, Lord McIntosh of Haringey, at one stage in the discussion on this clause, judges already have discretion in setting the minimum period to be served under the life sentence. It is very interesting to reflect on what was said about this in discussion in another place. The Minister's colleague, Mr. Maclean, said as regards the argument on tariffs, it will be entirely up to the judge to set up an appropriate tariff within the automatic life sentence, taking account of the seriousness of the assault for which the person has been found guilty under section 18".—[Official Report, Commons Standing Committee A, 14/11/96; col. 66.] Unless the Minister says otherwise, I assume that those sentiments are ones that the Minister herself will express. Surely it makes nonsense of the idea of honest sentencing and holds the whole system of sentencing up to disrepute, if indeed the judge has complete discretion under the tariff in the provisions of this clause.

I do not want to add anything further because I know that noble Lords on all sides of the House want to contribute. With respect to the Minister, I hope that she will not say, as she said in relation to amendments to what were then Clauses 2 and 3, that persons in fear of life sentences will rejoice in these amendments. That is not a sufficient case against them. I hope that neither will she seek to speak "for the man on the top of the bus". To change the expression, I hope that she will not say, as the Home Secretary and the noble Baroness, I believe, have said, that these amendments will drive a coach and horses through the Bill.

I agree with what the noble Lord, Lord McIntosh, said on the first day of Committee stage that they were not wrecking amendments. These are not wrecking amendments, even if some noble Lords might like them to be so. They should be judged on their merits. I beg to move.

Earl Russell

My Lords, I did not realise that the Minister was going to intervene quite so rapidly. I believe that some people on the Cross-Benches wish to speak. I hope that, after me, the Minister will wait in order to allow them to do so. I am a little bewildered by the Minister's references to the tariff. The point raised by my noble friend Lord Rodgers of Quarry Bank about how the imposition of a sentence which has nothing whatever to do with the tariff is compatible with honesty in sentencing. It is one that has puzzled me for quite some time.

I notice the noble Baroness registering—shall I say "dismay", if that is a sufficiently courteous way of putting it.

Baroness Blatch

My Lords, I express dismay on two counts. The noble Lord, Lord Rodgers, did not speak to his amendments. His line of argument was entirely to do with the length of custody and not with the test for applying the automatic life sentence. I am also dismayed at the gratuitous insult just afforded to me by the noble Earl. I got up rather slowly then. I looked around and nobody seemed to be rising. In fact, the noble Earl rose from his seat rather slowly because I believe that he too was looking around the Chamber. I hope I have never had a reputation in this House for cutting people out of debate.

Noble Lords

Hear, hear!

Baroness Blatch

My Lords, I have always made sure that people who wish to speak in a debate do so.

5.30 p.m.

Earl Russell

My Lords, I made no imputation at all in relation to the noble Baroness's motives. If she thought that she heard such an imputation, I am happy to withdraw it unreservedly.

But the point that she made about my noble friend's line of argument is rather more substantial and deserves rather more of a reply. As I understand her, she complains that my noble friend was talking about length of time served and not about length of sentence. Is the noble Baroness telling us that length of time served has no relationship to length of sentence? If she is telling us that, I really cannot see how that is compatible with any claim whatever to honesty in sentencing.

Indeed, the whole question of the relationship between the tariff and the sentence has been far too little explored during the course of the Bill. The specific words of the amendment take out "exceptional circumstances" and instead insert "specific circumstances". In line 3, they insert after "unless in the interests of justice". Amendment No. 4 seeks to insert the words, would make the imposition of a life sentence unjust in all the circumstances". Those are very much nearer to words which should be used in any Bill which purports to be concerned with the administration of justice. I have always been unhappy about the words "exceptional circumstances". I listened with great care to the words used about them at Second Reading by the noble and learned Lord, Lord Bingham of Cornhill. There are two ways in which the words "exceptional circumstances" could be construed: either because you believe all cases are different, as I do, in which case you could construe all circumstances to be exceptional; or, as the noble and learned Lord assured us the courts are more likely to do, you could give a much stricter and tighter construction, as courts must obviously be inclined to do, and then find that very few circumstances are exceptional.

The word "exceptional" will mean that we shall find no end in wandering mazes lost. The word "specific" is what is needed if we are to make any attempt to do justice. If we are considering what is the right sentence in a particular case, we must consider what happened exactly in that particular case; in other words, the specific circumstances.

The noble Baroness is obviously not pleased with that idea but I cannot for a moment understand why. I cannot understand how anything else can purport to be just and I cannot understand how a mandatory sentence can purport to be just, whatever its length, even if it is the right length for that particular crime. Then it is, as the Italians say when two trains meet at a junction, coincidenza.

We are asked also in Amendment No. 4—and this is important—to consider whether the sentence would be unjust in all the circumstances. Here I should mention the briefing that we have received from Women Against Rape which deals particularly, among other things, with murders and manslaughters committed by people who have been victims of domestic violence. Those cases are capable of producing the most tragic injustice.

The noble and learned Lord, Lord Taylor of Gosforth, in the Ahluwhalia case has given a truly memorable judgment on that which I am pleased to see tends to be being widely followed; but it is not always. The Minister will remember the case of Sara Thornton which caused her department considerable perplexity in times past. I have written to her department on that case, which turned out to be more complicated that I then realised. I must apologise to the department for writing letters which were not always fully conversant with all the facts. But in making that apology to the Minister's department, I merely underline the basic point of my case: that until you know about all the specific circumstances of a particular offence, you cannot have the first idea about what type of punishment should be imposed.

In considering this amendment, we must consider also that we have not yet received any favourable response to the amendment moved right at the very end of the Committee stage by the noble Lord, Lord Carlisle of Bucklow, and spoken to with great eloquence by the noble and learned Lord, Lord Bingham of Cornhill, about the discount for guilty pleas. That also is a point of considerable concern to Women Against Rape because where there is no sufficient discount for guilty pleas, a rapist or, indeed, a burglar, detected by a night watchman is sometimes under temptation to kill in order to destroy the only possible witness. If we should make that more likely then, in my opinion, we should not be protecting the public. For those reasons, among others that I shall not list at present, I am happy to support my noble friend's amendment.

Lord Bingham of Cornhill

My Lords, to impose a life sentence on any defendant in any circumstances is a solemn and serious thing. That is not because most such defendants spend the rest of their lives in prison; it is well known that they do not. Nevertheless, it is solemn and serious because when such a sentence is passed, the defendant potentially forfeits the rest of his life to the state.

In current circumstances, it is the most drastic penalty which society gives itself the power to impose. Unhappily, such sentences are sometimes necessary. I am not now concerned to argue against the mandatory life sentence for murder. I accept without qualification that such sentences are sometimes necessary for the protection of the public in other cases. None of that is controversial. No one this evening on these amendments is arguing against life sentences. As I understand it, these amendments seek merely to ensure that that solemn and serious step should not be taken where it is not in the interests of justice to take it or where it is unjust in all the circumstances to impose such a sentence.

I am not asking that the courts should be above the law. Throughout I have accepted the power of review and the right of the Attorney-General to go to the Court of Appeal and say, "A life sentence should have been imposed in this case and it was not. Please impose it". But I am bound to say to your Lordships that speaking purely for myself, I cannot see any rational ground for opposing these modest amendments.

How can it be contrary to good government or the administration of justice that those draconian sentences should not be imposed mandatorily where it is not in the interests of justice to impose them or where it is contrary to justice to do so? Faced with these amendments, I would expect the noble Baroness, who has been so patient in these debates, to say, "Yes, of course, it goes without saying. How could the Government wish mandatory life sentences to be imposed where it is contrary to the interests of justice?" Instead of that, we find implacable opposition to what is an obvious and very modest addition to the Bill.

Lord Ackner

My Lords, I should like to raise three particular separate matters and ask the noble Baroness for her assistance with regard to them.

The complaint has been made that in, I think, 1994, there were 217 cases in which there was a second conviction for one of those so-called serious offences. Out of the 217, only 10 were the subject matter of a life sentence. We are given no particulars of those cases but we do know that six of them were referred by the Attorney-General to the courts but he did not seek a life sentence in any of them.

The Attorney-General has a pretty traumatic existence. He is disliked by the press because it is his function to bring proceedings for contempt. He is constantly a target of one kind or another. But I do not see why he should be attacked sub silentio by the Government unless they justify that attack. It follows from the criticisms made in regard to those statistics upon which the Government rely so much that, out of the 207 cases, the Attorney-General should have referred, if not all, certainly a major proportion; otherwise, there is no justification for these provisions at all. As I have understood it, the justification is that the judiciary is not doing enough to protect the public and accordingly it must lose its discretion, right and duty to sentence in this type of case. But it means that if the judges were being unduly lenient, as is alleged, the Attorney-General failed in his statutory obligation to bring to the attention of the Court of Appeal cases of this kind where it was said that he had been unduly lenient.

Clearly, this matter gave the Home Secretary some concern. Correspondence was raised to this effect. He wrote in reply to the Sunday Telegraph on 23rd February—I read only the material part of the letter— Mr. Palmer asks why the Attorney General had not exercised his power to refer the other 207 cases to the Court of Appeal. The answer is that the Attorney General can only refer to the Court of Appeal if they are 'unduly lenient'. Long sentences are frequently imposed on offenders convicted of serious violent and sex offences—which cannot therefore he challenged as unduly lenient". An intelligent first-year law student would have done better than that. The first thing that he would have been told to do would be to refer to the sentencing encyclopaedia and manual. There he would have found two quite recent cases brought by the Attorney-General in which the Court of Appeal (Criminal Division) had upheld his submissions that a long sentence (in one case 12 years) was unduly lenient and imposed a life sentence. Statistics on this subject were referred to in debate before the letter of Sunday 23rd November.

I therefore put to the noble Baroness the question that the Home Secretary so signally failed to answer. If she suggests that out of 207 cases the judges imposed unduly lenient sentences, (a) will she identify them, and (b) will she say why the Attorney-General has apparently failed in his statutory duty?

My second question arises in relation to the imposition of the false label "life imprisonment". It is a false label because the Government do not intend, save in a tiny minority of cases, that a person so sentenced should stay in prison all his life. That is a false label which involves all the paraphernalia of tariffs and parole. For over 20 years there has lain on the shelves of the Home Secretary an immensely detailed report of a committee presided over by Lord Butler dealing with the problem of persons who have been convicted and given determinate sentences and then have been released when there is still a danger. He proposed that there should be offences dealt with in that way under a quite different heading. He suggested that they should be reviewable sentences. That involved medical evidence to establish that the offender was a danger and every two years consideration of the person's position. It also meant that if the person was discharged from prison there should be a licence that would last for the remainder of his life, subject always to review.

If there was a serious problem, why was that report never debated? It never was debated in either House. If there was a serious problem, why was not the suggestion in that report looked at? If there was a serious problem, why was it not referred to the Law Commission to see whether an up-to-date approach was appropriate? Why was it not realised that it had considerable advantages over the false label which in the interests of honesty in sentencing the Government insist upon?

Those advantages are at least the following. First, the reviewable sentence was not limited to a second offender. One could start right in, provided it was the appropriate category of offence. Secondly, it was not the restricted list in this case which covers all cases in which the maximum sentence is life. The appendix to that report set out two categories of case: one in which those who were sentenced had a sentence that was capable of being life and those which were not but which had to be a second offence following the life sentence type of case—so much wider. Thirdly, one had to have medical evidence.

There is no requirement for medical evidence in regard to the automatic life sentence proposed by the Government. They look with equanimity upon a judge saying to an individual, "I am obliged by Parliament to impose a sentence of life imprisonment on you. I am also obliged to explain to you precisely what I am doing, so do not be upset by the macabre sound of the words 'life sentence' because they do not mean what they say. In your case I am quite satisfied by the evidence that there is nothing that suggests you are a danger. The facts of the case, involving violence but in circumstances which are very special, oblige me in the exercise of my powers to specify that the element of the life sentence which should be looked upon as punishment and as a deterrent is 18 months. Because I have already indicated that I do not consider that you are in any way a danger, I have alerted the Parole Board, which must be satisfied in 18 months' time that you are no longer a danger so that it can put an entry into its diary and keep you in prison not a moment longer than your medical condition requires".

In Lord Butler's proposal one did not go through that charade. You had your medical evidence and you operated on that. The Minister was kind enough to say in the debate on 13th February when she was replying to an intervention of mine in which I raised the matter of the Butler Report: The noble and learned Lord makes an interesting point. I can tell him that many hours were given over to the consideration of that option".—[Official Report, 13/2/97; co1.367.] I should like to know what was the result of those many hours. First, why was not the Butler Report revealed to Parliament during the debate; and, secondly, why were we not told why the Butler option was not operated instead of the false label still under the heading of honesty in sentencing?

The third area of information for which I should be grateful relates to the 1990 White Paper, because this was not only my plea; it was the plea, to which I referred in terms today, of the former Home Secretary in the debate resulting from a Motion moved by my noble and learned friend Lord Taylor in May last year. In that debate, the noble Lord, Lord Carr, drew specific attention to the 1990 White Paper, and explained that the Government had gone totally in reverse. He said, as I have already quoted: I do not believe that in respect of such a vital matter the Government can just go into reverse in this way without explaining more deeply and clearly to us in Parliament and to the public as a whole why six years ago they were wrong—not just a little wrong but fundamentally wrong—and are now fundamentally right".—[Official Report, 23/5/96; col. 1051.] We have never been told how that volte face came about. We have never been shown any research, and consideration. All we have is essentially the figure of 217 in regard to those serious crimes, unexplained, and clearly an indirect attack upon the Attorney-General.

That is all I propose to say in support of the amendment, save that in so far as the amendment seeks to ensure that the judge can do justice with regard to the offender before him, and in so far as the Government resist that amendment, the Government are clearly, by implication, on occasions obliging the judge to do injustice.

Lord Carlisle of Bucklow

My Lords, the noble and learned Lord, Lord Bingham, said succinctly everything that can be possibly and unanswerably said about the amendment. I rise only to ask my noble friend the Minister two matters with regard to the issues that have been raised and the relationship between the tariff and the life sentence. First, is it the Government's intention that in passing sentence, let us say, the judge will say, "You will go to prison for life and you will serve a period in my view of two years?" If that is so, in what way does that enhance the dignity of the court rather than undermine the importance of the life sentence?

Of course the judge pronounces the tariff in murder cases at the moment, but invariably in the 10s of years, 20s of years, or even further, or for life as a whole. But here, as has been accepted by my noble friend the Minister during the previous debate—I think accepted—the variety of offences that will be caught means inevitably that there will be cases where the judge will be saying,"You will go to prison for life and the tariff will be"—then something fairly modest. Does she believe that that will enhance the standing of the court in the eyes of the public?

Secondly, did my noble friend really mean it when she said to the noble Lord, Lord Rodgers, that the clause would in no way increase the prison population? I realise of course that she was saying that, since the person will not serve life, he or she will serve the tariff, and that therefore, if the tariff equates to the other sentence, that in itself—I accept it and I accepted it in an earlier speech—will not affect the prison population. But as I understood it, the whole raison d'être of this clause as set out in Protecting the Public is that people will be able to be kept in prison beyond the end of the tariff sentence. That is the argument for it, and if that is not the argument, what is the argument?

Thirdly, will my noble friend tell us what thought the Government have given as to what the tariff should apply? Is the tariff intended to be the sentence that the judge would have given were he not required to impose a life sentence? Because if it is, and since she said that the provisions for early release will not affect the period of the tariff, that in itself will increase the length that the person spends in prison by anything up to 18 per cent.—because if you pass a sentence of three years on someone who has pleaded guilty to a glassing, and that person then obtains full remission, he or she will come out at three years less 18 per cent.

If there are two people together and you pass a sentence of life imprisonment for a second offence but say that the tariff shall be three years on the plea, that person will serve longer than the person to whom you have given the three years, because that person will serve the three years in full. Or is the intention—have the Government given thought to this—when deciding what the tariff is that the judges should not only first do the mental arithmetic job of reducing the existing sentence by 66 per cent. under Clause 23 so as to provide for the proposals for early release but that they should then reduce the sentence by a further 18 per cent. so as to achieve their purpose of not increasing the prison population? That is what my noble friend said. She said that it would not by one jot increase the size of the prison population.

Have the Government thought this through? Is it intended that the period of the tariff sentence should be less than the sentence that would otherwise be given if the provisions did not apply? If so, are we not in the rather ironic situation that with two people charged with the same offence one is sentenced for a first offence and is given six years by the judge, while the other is on his second offence and the judge gives him life; but is required instead of giving him six years to say, "You will go to prison for only five years"? It does not seem to me that that will enhance the standing of the courts in the eyes of the public.

6 p.m.

Lord Ackner

My Lords, with the leave of the House, perhaps I may provide the noble Baroness with the reference for which I was looking but could not find. It is in the Second Reading debate on 27th January 1997, at col. 987 of Hansard. The Lord Chief Justice said that during the calender years 1995 and 1996 the Court of Appeal, on references by the Attorney-General, reviewed the cases of 86 offenders in whose case a life sentence had been imposed and in only four of those cases did the Attorney-General ask the Court of Appeal to substitute a life sentence and in two cases the court did so, in two it did not, and in one other case it did so although it had not been asked to do so. Therefore, the Home Secretary or his advisers would have known before he wrote the letter some months later that the Attorney-General had all the power in the world to refer wrong sentences for a life sentence on the grounds that they were too lenient.

Lord Thomas of Gresford

My Lord, the false label to which the noble and learned Lord, Lord Ackner, referred, is emblazoned in the title to Part I of the Bill, Mandatory and minimum custodial sentences". and in the marginal note to Clause 2, which reads: Mandatory life sentence for second serious offence". The Government concede that it is not the intention to impose a life sentence—a sentence for the whole of a person's natural life. I cannot improve upon the argument which the noble Lord, Lord Carlisle of Bucklow, has just advanced in which he pointed out that a judge who is required to announce the tariff—the punitive element of the sentence—may in appropriate circumstances be announcing a tariff of as little as two or three years and thereby devalue the whole concept of the expression "life sentence".

However, the Government also concede that it is not a mandatory sentence because they allow a judge to pass a different sentence in exceptional circumstances, as the clause is drafted. It is that expression, "exceptional circumstances", which is criticised. It is a vague phrase which has been used in relation to suspended sentences. It has been given a very limited meaning. I apologise for referring to an illustration which I gave at an earlier stage of a case in which I was involved in which a level-crossing keeper was convicted of manslaughter as a result of failing to close the barriers on the level crossing. As I recall, that was the last occasion in my experience when a suspended sentence was imposed—that being an "exceptional circumstance". In that case, the judge made it quite clear that it was very unlikely that he would ever pass a suspended sentence again, having regard to the guidance that he had received.

I have sought clarification of the phrase "exceptional circumstances" not only at the Committee stage of this Bill but also on the Bill relating to Scotland. In relation to the Scottish Bill, the noble and learned Lord the Lord Advocate said in terms that it is for judges to decide what are exceptional circumstances, and refused to illustrate or to give any further guidance on what he thought that the phrase "exceptional circumstances" meant in the Scottish Bill and in this Bill. If it is simply left to judges to decide, surely it must be implied that judges are required to exercise their own judgment as to what is just and what is unjust in a particular case. What are "exceptional circumstances"? Surely it is what is just or what is unjust.

The expression contained in the amendment—"unless in the interests of justice the court is of the opinion that there are specific circumstances relating to either of the offences or to the offender which would make the imposition of a life sentence unjust in all the circumstances"—sets out the purpose of a different sentence being imposed—namely, that it be imposed in the interests of justice—and the reason why a different sentence is imposed—namely, that a life sentence would be unjust. What is wrong in giving that specific guidance to judges, who, in a particular case, would be required when imposing the sentence to say what specific circumstances they had in mind and why it would be unjust to pass a life sentence in all the circumstances of the case?

I fear that this clause devalues the currency of the expression "life sentence" altogether. I support the views expressed by the noble and learned Lord, Lord Bingham, that so far "life sentence" has meant a solemn sentence and, as he put it, a sentence which potentially forfeit the rest of the defendant's life to the state. A life sentence has always been regarded as something to fear, something of which one should be afraid. However, as used in this almost technical way in this clause, a "life sentence", coupled with the tariff of two, three or four years, will reduce the value of that expression entirely. I support the amendment.

Lord Hacking

My Lords, this is the first time that I have intervened during the Report stage of this Bill. If I speak very quietly I hope that your Lordships can hear me and I hope that I shall not be speaking too loudly for my learned friend who is sitting on the Bench beside me—

The Earl of Onslow

My Lords, I am not learned!

Lord Hacking

My Lords, I am grateful for that polite intervention.

I have expressed great concern about the course which your Lordships are now taking with regard to this Bill. I anticipated it last night and it was then that I spoke. Having listened to the whole of this debate—I shall not repeat a single argument that has been presented to your Lordships—I ask noble Lords seriously to consider the amendment. When the noble and learned Lord—I correctly describe him—the Lord Chief Justice, comes to your Lordships' House, as he has come again today, to advise us against the dangers in which we are placing ourselves by proceeding with these mandatory sentences without sufficient checks—or by proceeding with them at all—and when the noble and learned Lord his predecessor (who I am glad to see has been in the Chamber all day today) who bravely opened our debate on 23rd May last year, has also given that advice to your Lordships, advice which has not been available in another place, it is a matter of great concern to me that your Lordships should listen to that advice from members of the judiciary and to the advice of those with such experience in these matters as my noble friend Lord Carlisle. In considering the amendment, we should therefore press our case.

Baroness Blatch

My Lords, the provision in Clause 2 is not to impose a more severe punishment on the offender—the court will set the appropriate tariff to reflect the gravity of the offence. Rather it is to ensure that when the tariff has been served, the offender—who, after all, is a repeat violent offender—is released only if the Parole Board is satisfied that it is safe to do so. Unlike the tariff, this is not a decision which the trial judge will normally be in a position to make when passing sentence. There is therefore an important conceptual difference, which I know those opposed to the Bill have recognised both in this House and another place, between the automatic life sentence in Clause 2 and the mandatory minimum prison sentences in Clauses 3 and 4.

There may, nevertheless, be cases in which it is neither necessary nor appropriate for the court to impose the automatic life sentence, and that is why subsection (2) provides discretion for the court not to impose a life sentence if it considers that there are exceptional circumstances relating to either of the qualifying offences or to the offender which justify doing so. Given the nature and purpose of Clause 2, this is a discretion which I would expect the court to exercise very sparingly indeed.

The effect of Amendment No. 2, which stands in the name of the noble Lord, Lord Rodgers of Quarry Bank, would be to insert an additional proviso into the test which the court must apply when deciding whether to exercise its discretion. The court would be required to impose the life sentence, unless, in the interests of justice, it is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so". I have to say that, so far as I can see, the net result of the amendment would be to add a number of extra words and some confusion. The Bill as it stands makes it clear that there must be exceptional circumstances which are sufficient to justify not imposing the life sentence; and the proposed amendment would not change that. The Bill does not specify that in determining this the court should further consider the interests of justice because it is unnecessary to do so. If there are exceptional circumstances, and they are sufficient to justify not imposing the mandatory life sentence, then it could not possibly be in the interests of justice to do so.

Clause 2(2) as it stands provides a clear and straightforward test. The proposed amendment, in my view, is unnecessary and detracts rather than adds to the clarity of the Bill. I hope, therefore, that the noble Lord, Lord Rodgers, will not press the amendment.

Amendments Nos. 3 and 4, which also stand in the name of the noble Lord, Lord Rodgers, go much further. Taken together, they would allow the court to set aside the life sentence if it considers that there are specific circumstances relating to either of the qualifying offences or to the offender which would make the imposition of a life sentence, unjust in all the circumstances". It is rather difficult to think of any relevant circumstances which are not specific and which do not relate either to the offence or the offender. The effect of these amendments would therefore be to leave the trial judge with an entirely open-ended discretion to set aside the automatic life sentence if he considered for whatever reason that it would be unjust. Our firm view is that where an offender has been convicted of two serious violent or sexual offences, he should not be released unless and until it is safe to do so. That is what the automatic life sentence is designed to achieve. I hope that the House will agree that the trial judge should have discretion to set aside the life sentence, and the protection of the public which it affords, only in rare cases. That high threshold is what the "exceptional circumstances" test is designed to achieve.

Perhaps I may now refer to some of the points raised during the course of the debate. I turn first to the points made by my noble friend Lord Carlisle about the automatic life sentence. The period of custody, the tariff to be served, will be determined by the judge and should reflect the seriousness of the offence. I was asked whether that would increase the prison population. I cannot see why it would automatically do so, because it would be for the judge to determine the tariff period at the end of which the Parole Board would consider the safety of release of the offender. Therefore, that would be taken into account by the judge in court because the tariff period to be served is entirely related to the offence just as it is now. However, the difference is that the automatic life sentence is made, first, because it is a repeat offender—that is, someone who has repeated a violent or sexual offence more than once—and, therefore, there are proper arrangements for his release into the community. I want to continue with that point because it relates specifically to the remarks made by the noble and learned Lord, Lord Ackner.

Lord Carlisle of Bucklow

My Lords, I should point out to my noble friend the Minister that my question was whether the tariff was meant to equate with the sentence that the judge would have passed if it were not a case that came within the mandatory life sentence. Alternatively, is the tariff meant to equate with the length of sentence which that person in practice would have served; in other words, is it to be equated with the sentence, less that which the person would get off for good remission? If not, it puts up the sentence by 18 per cent.

Baroness Blatch

My Lords, I shall deal with my noble friend's points in a moment. However, I want now to refer to a point made by the noble and learned Lord, Lord Ackner, relating to medical advice. There is absolutely nothing in the Bill which precludes the court taking any advice it needs, which would include medical advice, before passing sentence—or, in this case, it would be the tariff period. In determining the length of tariff to be served in custody as part of a life sentence, I cannot see why the courts should be precluded from taking any form of advice.

The point made by the noble and learned Lord, Lord Ackner, provides a link with that made by my noble friend. I refer to the 207 cases of repeat violent offenders who were not subjected to a life sentence. The noble and learned Lord was concerned as to why it was that the Attorney-General did not make application to the Court of Appeal because of lenient sentences. The important point that we do not know about the 207 cases of repeat violent offenders is whether, when they were released from prison, they were in fact safe in the community. We do not know how many of those people went out, having repeated an offence not just once but twice, and repeated yet again.

From those opposed to the Bill in this House, there appears to be a dogged determination not to accept that the purpose of the automatic life sentence for repeat violent and sexual offenders is that they should be subject to release arrangements which consider the protection of the public, because they are repeat offenders, and which provide life-long supervision for repeat violent and sexual offenders.

Lord Ackner

My Lords, I apologise for interrupting the Minister. However, the whole point of the Attorney-General intervening in a case where there is a long determinate sentence and arguing for a life sentence is to protect society. It is on the basis that the determinate sentence does not do that adequately that the Court of Appeal changes the determinate sentence to a life sentence. That is what happened in reported cases on the Attorney-General's reference. The fact that the Attorney-General has not sought to do so when all the material is there, I should have thought indicates that either the Attorney-General is grossly incompetent, which I do not accept, or that these are cases which were properly dealt with by the determinate sentence. It must be one thing or the other. If the Minister is complaining that some or all of the 207 cases should have received life sentences, then she is indirectly alleging that the Attorney-General has failed to carry out his statutory duty.

Baroness Blatch

My Lords, I am doing no such thing in my response. The noble and learned Lord quite properly asked me why the Attorney-General did not refer 200 or more cases in 1994 involving serious violent or sexual offences. The answer is straightforward. Perhaps I may quote the judgment of the then Lord Chief Justice, Lord Lane, who held in 1989 that a sentence would be unduly lenient only, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably have imposed". That means that the Attorney-General may only refer cases which are outside the range of sentences. It is the tariff which reflects the seriousness of the sentence. The purpose of the automatic life sentence, as I keep having to repeat, is to ensure that a dangerous offender will be released only if and when it is safe to do so. There is no determinate sentence, however long, that can provide the protection for the public which is associated with a life sentence.

When a determinate sentence reaches the point where the prisoner is automatically released, he is released. I have visited prisons and spoken to prison officers who have looked me in the face and said, "Lady Blatch, I have to tell you that it is only a matter of when this person commits the next crime, not if he commits the next crime". They know that that person will be automatically released from prison when he is unsafe to be released into the community. We have made a proper response to this issue of the safety of the public. I make no apologies to the noble Lord, Lord Thomas of Gresford, in respect of a man on top of a bus or in a market square. There is much community concern about the incidence of violence and in particular about repeat acts of violence. We shall continue to speak for those people against the learned voices in this House who have spent much time and energy to try to ensure that we make it more difficult to put in place measures that determine the safe release of prisoners into the community.

Lord Ackner

My Lords, I wish to give the noble Baroness, who is sitting down, two references—

Baroness Blatch

My Lords, this is Report stage of this Bill. So far noble Lords have intervened as though it were the Committee stage.

Lord Ackner

My Lords, I always understood that even on Report stage one can ask a question before the Minister sits down. I am not making a speech; I am asking a question in regard to the questions which I raised earlier. In view of her answer I was merely asking her to make sure that those advising her look at the Attorney-General's reference no. 34 of 1992 where the noble and learned Lord, Lord Taylor, then the Lord Chief Justice, substituted a life sentence at the suit of the Attorney-General, taking the view that the sentence was unduly lenient having regard to the danger which the offender posed.

The other case is that of the Attorney-General's reference no. 6 of 1993 where again the noble and learned Lord, Lord Taylor, said, Where the court is considering whether the sentence was wrong in principle in that it should have been a life sentence for the protection of the public, in our judgment the paramount consideration must be the risk to the public".

Baroness Blatch

My Lords, I rise with some diffidence to take issue with the noble and learned Lord because I respect enormously his experience in these matters. However, he is missing the point. This matter is not about lenient sentences and it is not about appealing against lenient sentences. There is a concern in the mind of the public, and in particular in the mind of those people who have been at the receiving end of violence in the community. This measure is a response to those who repeatedly commit violent or sexual offences. The mechanism that has been put in place is not to give someone a longer period in custody but to ensure that a prisoner will not be released at the end of the tariff period until there has been a proper assessment of the risk he poses and it is considered safe to send him back into the community. If noble Lords who have supported these amendments get their way we shall again impose determinate sentences whereby at the automatic release point prison officers and probation officers knowingly release people back into the community who are repeat violent offenders without having conducted any proper risk assessment at all. The situation is even worse than that—

Earl Russell

My Lords—

Baroness Blatch

My Lords, I hope the noble Earl will allow me to finish this point. The situation is even worse than that because if most noble Lords who have spoken had their way we would retain the provisions of the 1991 Act and there would be automatic release at the halfway or two-thirds point of a sentence. Repeat offenders would be sent back out into the community at that point. My noble friend shakes his head but that would be the consequence of all the amendments that my noble friend is supporting in this Bill.

Earl Russell

My Lords, is the noble Baroness telling us that she wishes to extend the process by which the—

Noble Lords

Order!

Baroness Blatch

My Lords, I have said that this is the Report stage of the Bill. No one must intervene unless he asks leave of the House. He may intervene only with the leave of the House and usually only in the form of a question.

Earl Russell

My Lords, I understood the noble Baroness had sat down to give way to me. May I ask a question before the noble Baroness sits down?

Noble Lords

Yes!

Earl Russell

My Lords, is the noble Baroness telling us that she is setting out a process by which the executive takes more and more control from the judiciary as regards the length of time people spend in prison, because if so not all of us find that reassuring?

Baroness Blatch

No, my Lords, I am certainly not. That is an absurd interpretation of what I have been saying and it is certainly an absurd interpretation of what is in the Bill. I have explained why in Clause 2 we are making a mandatory life sentence available to the courts with the caveat, of course, of exceptional circumstances. That is to ensure that those who repeat violent or sexual offences should be subject to proper release arrangements. The period to be spent in custody will be a matter for the courts. The courts determine guilt or innocence and the tariff period. The Parole Board will determine the release arrangements and set the conditions for recall following release arrangements. The Probation Service will manage the supervision period. There is no way in which one is removing the rights of the court. It is certainly not a case of the executive taking over. I am not sure that the noble and learned Lord will welcome this, but I pray in aid the noble and learned Lord the Lord Chief Justice on this point who said at the outset this afternoon that it is the right of Parliament, not the executive, to set the framework for the courts. The courts operate within the framework set down by Parliament.

I now discuss reviewable sentences and the Butler Report. As was made clear at Committee stage of this Bill, the Butler Report's proposals on reviewable sentences added nothing to discretionary life sentences which can currently be imposed for serious offences whether or not the offender has previous convictions. Its defect was that no part of the proposals provided for punishment and deterrence. Indeed, an amendment is tabled for later this evening which will bring us to that point; namely, reviewable sentences and releasing people who are safe without considering punishment and deterrence. As for reviewable sentences being a more accurate label than life sentences, that is not the case, for reasons given by the noble and learned Lord, Lord Bingham. The noble and learned Lord said that under either sentence there is a lifelong liability to prison.

The noble Lord, Lord Rodgers referred to statistics on prisons. I refer him to the Official Report col. WA14 of 10th March 1997 where I gave a Written Answer to a question from the noble Lord, Lord McIntosh, about the impact of this Bill on prison places. Some 8,900 places will be in place by the year 2000. That takes account of the natural growth in the prison population irrespective of this Bill. The noble Lord, Lord Rodgers, referred also to the use of police cells. Every effort is being made to avoid the use of police cells. We are hopeful that we shall be successful in that. However, as I have openly admitted before in this debate and to the noble Lord, Lord Harris of Greenwich, there is a tension in that regard.

I return to the tariff point. The tariff is the minimum period to be served for retribution and deterrence. That is what has to be decided by the court. It should be broadly the same as the determinate sentence which the court would previously have imposed. In setting the tariff the court should apply the provisions of Clause 23 of the Bill. Once the tariff has been served, the question of whether to release the offender will be determined by the Parole Board and the normal early release arrangements do not apply.

It is perhaps worth pausing for a moment to reflect on what Clause 2 would provide if all the amendments of the noble Lord, Lord Rodgers of Quarry Bank, were accepted. I put all three together. A court would then be required to impose the automatic life sentence unless, in the interests of justice, it was of the opinion that there were specific circumstances relating either to the offences or the offender which would make the imposition of a life sentence unjust in all the circumstances. I hope that on reflection even the noble Lord himself would agree that such a formula is neither elegant nor a satisfactory way of providing guidance to the courts on parliamentary intentions.

6.30 p.m.

Lord Rodgers of Quarry Bank

My Lords, we will have to wait until 1st May to discover what the man on the top of the bus really believes, but I have greater respect for him than has the Minister.

If the Motion before the House, but not your Lordships' House, was that courts should impose a life sentence unless, in the interests of justice, there are specific circumstances which justify them not doing so, I believe that the man on the top of the bus would be in favour of it in the interests of justice. Were circumstances to be different, I would be very happy to debate that elsewhere.

If any attempt had been made to explain this clause and indeed this Bill to the public, and if the alternatives which we have ventilated in your Lordships' House had been placed in juxtaposition, I believe that the man in the street would have understood something other than the policies embodied in this Bill and in a great deal more of the legislation which we have had from Her Majesty's Government. I believe, and this has been the view of successive Home Secretaries except the present one, that it is important to present to the public an alternative view to that which the public may in the first instant feel to be the case. Leadership of the public on these issues is important. It is not the duty of governments to follow. However, I do not believe that we can pursue these matters a great deal further.

The noble and learned Lord, Lord Bingham of Cornhill, said that this would be an obvious and very modest addition to the Bill. I am prepared to accept that it is obvious and, in that case, I hope that the Minister will accept the amendment. I am prepared to believe that it is very modest, too. However, it is far too important an issue to leave undecided in your Lordships' House. Earlier this day we said that we believed that legislation—in particular, this Bill—should be properly scrutinised and that your Lordships could not abdicate that responsibility. Equally, we believe that there should be no unreasonable delay. To debate the amendments further might result in that, but I ask leave to test the opinion of the House.

6.33 p.m.

On Question, Whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 76; Not-Contents, 138.

Division No. 3
CONTENTS
Ackner, L.	Kinnoull, E.
Addington, L.	Kirkwood, L.
Ampthill, L.	Kitchener, E.
Baldwin of Bewdley, E.	Lester of Herne Hill, L.
Belstead, L.	Lockwood, B.
Bingham of Comhill, L.	Longford, E.
Blease, L.	Lowry, L.
Bledisloe, V.	Mackie of Benshie, L.
Bridge of Harwich, L.	McNair, L.
Broadbridge, L.	McNally, L.
Byron, L.	Mar and Kellie, E. [Teller.]
Calverley, L.	Masham of Ilton, B.
Carlisle, E.	Monson, L.
Carlisle of Bucklow, L.	Norton, L.
Chichester, Bp.	Ogmore, L.
Clancarty, E.	Oliver of Aylmerton, L.
Cocks of Hartcliffe, L.	Onslow, E.
Colville of Culross, V.	Palmer, L.
Craigavon, V.	Park of Monmouth, B.
Dahrendorf, L.	Rea, L.
Darcy (de Knayth), B.	Redesdale, L.
Ezra, L.	Robson of Kiddington, B.
Geraint, L.	Rochester, L.
Grey, E.	Rodgers of Quarry Bank, L.
Hacking, L.	Russell, E. [Teller.]
Hampton, L.	Saltoun of Abernethy, Ly.
Hamwee, B.	Sefton of Garston, L.
Harris of Greenwich, L.	Shannon, E.
Harris of High Cross, L.	Simon, V.
Harrowby, E.	Swinfen, L.
Hilton of Eggardon, B.	Taylor of Gosforth, L.
Hindlip, L.	Thomas of Gresford, L.
Hutchinson of Lullington, L.	Thomas of Walliswood, B.
Kilbracken, L.	Thurso, V.

Tope, L.	Warnock, B.
Tordoff, L.	Weatherill, L.
Varley, L.	Wigoder, L.
Walpole, L.	Williams of Crosby, B.

NOT-CONTENTS
Addison, V.	Jenkin of Roding, L.
Alexander of Tunis, E.	Kenilworth, L.
Allenby of Megiddo, V.	Keyes, L.
Anelay of St. Johns, B.	Kimball, L.
Archer of Weston-Super-Mare, L.	Kintore, E.
Astor of Hever, L.	Knutsford, V.
Attlee, E.	Laing of Dunphail, L.
Balfour, E.	Lindsay, E.
Banbury of Southam, L.	Lindsey and Abingdon, E.
Barber of Tewkesbury, L.	Long, V.
Beaverbrook, L.	Lucas, L.
Belhaven and Stenton, L.	Lucas of Chilworth, L.
Berners, B.	Luke, L.
Bethell, L.	Lyell, L.
Birdwood, L.	McConnell, L.
Blatch, B.	Mackay of Ardbrecknish, L.
Blyth, L.	Mackay of Clashfern, L. [Lord Chancellor.]
Bowness, L.
Brabazon of Tara, L.	Mackay of Drumadoon, L.
Bradford, E.	Macleod of Borve, B.
Brentford, V.	Marlesford, L.
Bridgeman, V.	Massereene and Ferrard, V.
Bridges, L.	Merrivale, L.
Brookeborough, V.	Middleton, L.
Brougham and Vaux, L.	Miller of Hendon, B.
Bruntisfield, L.	Milverton, L.
Burnham, L.	Monk Bretton, L.
Byford, B.	Montgomery of Alamein, V.
Cadman, L.	Mountevans, L.
Campbell of Alloway, L.	Mowbray and Stourton, L.
Campbell of Croy, L.	Munster, E.
Camegy of Lour, B.	Murton of Lindisfame, L.
Carnock, L.	Napier and Ettrick, L.
Chadlington, L.	Northesk, E.
Chalker of Wallasey, B.	O'Cathain, B.
Charteris of Amisfield, L.	Perry of Southwark, B.
Chesham, L. [Teller.]	Pilkington of Oxenford, L.
Clanwilliam, E.	Platt of Writtle, B.
Clark of Kempston, L.	Rankeillour, L.
Cochrane of Cults, L.	Reay, L.
Courtown, E.	Renton, L.
Craigmyle, L.	Renwick, L.
Cranborne, V. [Lord Privy Seal.]	Romney, E.
Cross, V.	Rotherwick, L.
Cumberlege, B.	Rowallan, L.
Dean of Harptree, L.	Saatchi, L.
Denbigh, E.	Saint Oswald, L.
Denham, L.	Sandford, L.
Denton of Wakefield, B.	Seccombe, B.
Donegall, M.	Selsdon, L.
Downshire, M.	Sharples, B.
Erroll, E.	Shaw of Northstead, L.
Fairfax of Cameron, L.	Skelmersdale, L.
Ferrers, E.	Skidelsky, L.
Fraser of Carmyllie, L.	Soulsby of Swaffham Prior, L.
Geddes, L.	Stevens of Ludgate, L.
Gisborough, L.	Stewartby, L.
Goschen, V.	Strange, B.
Gray, L.	Strathclyde, L. [Teller.]
Gray of Contin, L.	Strathmore and Kinghorne, E.
Haig, E.	Swinton, E.
Harmsworth, L.	Teviot, L.
Harris of Peckham, L.	Teynham, L.
Hemphill, L.	Thomas of Gwydir, L.
Henley, L.	Trumpington, B.
Holderness, L.	Ullswater, V.
HolmPatrick, L.	Vivian, L.
Inglewood, L.	Wharton, B.
Jeffreys, L.	Whitelaw, V.

Resolved in the negative, and amendment disagreed to accordingly.

6.41 p.m.

[Amendments Nos. 3 and 4 not moved.]

Lord Hacking moved Amendment No. 5:

Page 2, line 10, at end insert—

("(4A) Where a person is convicted of an offence which falls within subsection (1) above and the conditions mentioned in section 37(2) of the Mental Health Act 1983 are satisfied, the court may if it sees fit conclude that the satisfaction of those conditions constitutes exceptional circumstances which justify it not imposing a life sentence.").

The noble Lord said: My Lords, in moving the amendment, I shall address your Lordships on Amendments Nos. 11 and 12. I shall also address consequential amendments, Amendments Nos. 132, 133 and 134.

When I moved this amendment and spoke to the other amendments in Committee, I described the amendments as being very important. Therefore I was pleased when the Minister replied that she was at least able on that point to come to an agreement with me. In her opening words, she said, This is an issue that we take very seriously indeed. It is an extremely important subject".—[Official Report, 13/2/97; col. 416.] The fundamental issue that I now ask your Lordships to consider on Report is a disturbance of the principle that has been in English penal law for many years; that when a person is suffering from an identifiable psychiatric illness he is not punished but treated. In Committee I referred noble Lords to the Mental Health Act 1983. In that Act, and under previous mental health Acts, a clear position has been set out. Under the Mental Health Act 1983 there are clear procedures when a person is suffering from an identifiable psychiatric illness (based, in the court proceedings, on the evidence of two medical practitioners). Instead of sending that person to prison, he is made subject to a hospital order. When there is concern over the public safety, the court at the same time can apply restriction orders. That is under Section 41 of the Mental Health Act 1983. There are further powers resting with the Secretary of State to make sure that the persons are not released when they are under a hospital order of indeterminate length; and under a restriction order of indeterminate length. These powers resting with the Secretary of State are that the person is not released from prison so long as there is concern relating to the safety of the public.

My noble friend having replied, I said that I should like to consider with care the speeches made in Committee and the speech of my noble friend. In reply, my noble friend said that, The amendments would have the effect of upsetting the balance that the Bill provides between the need to ensure that the public are protected from repeat offending and the need to enable effective medical treatment to be given to mentally disordered offenders". With reference to the first of my amendments—it is in identical form to the amendment before the Committee—my noble friend said: The life sentence is needed to protect the public from further repetition of the most serious sexual and violent offences and to ensure that people who have a history of committing such offences repeatedly, for whatever reason, receive supervision for life". [Official Report, 13/2/97; col. 416.] I thought the best way to approach the advice that my noble friend gave in Committee was to seek assistance from those outside your Lordships' House who have much more experience in these matters than I do. I therefore posed the question to the Penal Affairs Consortium: would not the public, as my noble friend suggested, be sufficiently protected under existing legislation, and, most specifically, under the provisions of the Mental Health Act? This is the Act to which I have drawn your Lordships' attention. If I may, I shall read the advice that I received: most offenders given hospital orders combined with restriction orders are detained in hospital for longer than they would otherwise have spent in prison. A restriction order can be made in cases where the court considers it necessary to protect the public from serious harm. Most restriction orders are made without limit of time. They subject the offender to indeterminate detention; decisions on release are made by a Mental Health Review Tribunal; and the patient is discharged under conditions which entail permanent liability to recall to hospital".

I thought that further advice should be sought. I sought it from the Royal College of Psychiatrists and the Law Society which have a Mental Health and Disability Sub-committee. I shall read the advice that I received from that joint sub-committee of the Law Society and the Royal College of Psychiatrists. I believe that it is important. It is as follows: While the Committee agrees that the public needs protection against persistent offenders, it believes that this will not be achieved by sending mentally disordered offenders to prison … Indeed, imprisonment is likely to have the opposite effect, since the mental health of the offender is likely to deteriorate while in prison, before being released untreated and unsupported into the community … Those mentally disordered prisoners who are eventually released are more likely to continue to pose a risk to the public, since their disorder may well have remained untreated during their imprisonment and it will prove far more difficult to ensure continuity of effective care from prison to the community, than from hospital to the community".

One of my concerns in the truncated proceedings that your Lordships are going through is that noble Lords have not taken the benefit of listening sufficiently to the advice from those who are very close to this matter; namely, members of the judiciary. Another of my concerns in taking a truncated course on this Bill is that your Lordships are not seeking to benefit sufficiently from a great deal of advice that has been received from persons who have immense experience in dealing with the issues arising from the Bill. I refer, for example, to the Royal College of Psychiatrists on those who are mentally disordered. It seems to me that your Lordships should equally well note the advice received in some excellent briefs. It has not been a question of round-robin letters being sent to us but of careful and considered advice received from a number of the concerned bodies. I know that the noble Lord, Lord McIntosh, has also received such advice.

Perhaps I could clear up one matter. My noble friend was able to say that a person suffering from a mental disorder would not fall under an exceptional circumstance within the meaning of the Bill. It therefore occurred to me after the amendment was passed by your Lordships' House resulting in Clause 1 of the Bill to wonder whether the position would in any way be changed. Unless any noble Lord takes a different view, it is my submission that the position is not changed and therefore it is as necessary at Report stage as it was at Committee that this amendment be agreed to.

My noble friend has shown her sympathy to this amendment. I hope that, having heard the detailed argument in Committee and having had the opportunity to read it, she will realise that it is fundamentally wrong for someone to be sent to prison who is found, on the evidence of two doctors given before the court, to have an identifiable psychiatric illness. Whatever the new provisions 45A and 45B of the Mental Health Act 1983, the problem is not solved. In the first place, the accused is sent to prison and in the second place the hospital direction, as it is called under the proposed new Section 45A, can only be used as long as there is a reasonable prospect of treatment providing benefit. That is not the case with certain psychiatric illnesses and therefore the only consequence of the Bill is that Section 45A will not keep in hospital those who have a psychiatric illness. Notwithstanding their psychiatric illness, they will be moved back to prison. We already have evidence that that will make matters worse rather than better.

One then looks to the release provisions. Although my noble friend advances the benefits of a supervision order after the period of imprisonment under a life sentence, it is nothing like as effective or as good as the existing and well-tried provisions of the Mental Health Act 1983. I beg to move.

Lord Renton

My Lords, my noble friend Lord Hacking has raised an extremely important matter and we must get it right. I hope that my noble friend Lady Blatch will agree, for the reasons given by my noble friend, that we should accept these amendments. Before this debate she kindly drew my attention to Clause 45, but there are two problems there. The first is that it applies only in the case of a person convicted before the Crown Court of an offence the sentence for which is not fixed by law.

What is worrying is that the sentences under Clauses 2, 3 and 4 of the Bill are to be fixed by law. Under Clause 2 it is to be a life sentence; under Clause 3 it is to be at least seven years' imprisonment, which comes near to being fixed by law; under Clause 4 it is at least three years' imprisonment, which seems to me to be fixed by law. Under Clause 2 there is no doubt whatever about the position. It is arguable that under Clauses 3 and 4 there is still a discretion on the part of the court, but it is a very limited discretion and to an extent fixed by law.

Be that as it may, my noble friend the Minister has invited my attention to a provision on page 32 in subsection (10) of new Section 45A of the Mental Health Act 1983 which states that: The Secretary of State may by order provide that this section shall have effect as if the reference in subsection (2) above to psychopathic disorder included a reference to a mental disorder of such other description as may be specified … That is very good; that gives the opportunity of applying the provisions of Clause 45 to, for example, mental handicap, people suffering from hallucinations, people who have no control over their willpower or perhaps even over their actions.

We are dealing here not with first offenders but, as my noble friend the Minister said, with people who have committed third or further offences. All the same, we must be very careful. I am worried about people suffering from mental impairment, mental handicap or, as it is euphemistically called, learning disability, and people suffering from other kinds of mental illness—I mentioned hallucinations, for example—because nothing can be done for such people in prison, where they will merely be the sport of other prisoners. They must be put in hospitals, for life if necessary. Mental illness is sometimes curable but it is a well-established medical proposition that no form of mental handicap is curable. I have some knowledge of this because I have a daughter who is severely handicapped and I am a past president of MENCAP.

We must get this right. I hope that my noble friend will be able to assure us that, soon after the Bill comes into force, the Government will use their power to extend the application of Clause 45 to other kinds of mental disorder. However, because Clause 45 applies only to offences the sentence for which is not fixed by law, we must be very careful, especially with regard to Clause 2 under which the court has no discretion and the sentence has to be imprisonment for life.

Lord Swinfen

My Lords, I support this group of amendments so ably moved by my noble friend Lord Hacking. I also support the points mentioned by my noble friend Lord Renton. As he said, there are no facilities in prison for the treatment of those incarcerated who have a mental disorder. If they are the subject of orders under the Mental Health Act 1983 they can be treated in a secure hospital where their condition is likely to improve, as a result of which they are likely, upon final release, to be of little or no danger to the public. However, if they spend their time in gaol, their condition is likely to deteriorate. It certainly will not improve and they are likely, when they finally come out, to be of similar if not greater danger to the public.

Speaking about mentally disordered offenders, sentencing and discharge arrangements, the Royal College of Psychiatrists, in a response to the Home Office and Department of Health discussion paper in 1996, said about mentally disturbed offenders being transferred back from hospital to gaol: Many clinicians will be unhappy about transferring such individuals back to prison because of the risks to mental health which follow such a transfer … It makes no clinical sense for prisoner-patients to be transferred back to prison prior to release into the community; this will be entirely detrimental to their rehabilitation". One of the reasons for gaoling offenders is to rehabilitate them. Therefore, I feel that we should take every step with mentally disordered offenders to ensure that rehabilitation takes place and is not destroyed by the way in which they are incarcerated.

7 p.m.

Lord Pearson of Rannoch

My Lords, I too should like to support the amendments. I do so as president of the National Society for Mentally Handicapped People in Residential Care and as the father of a mentally handicapped daughter. Therefore, I speak more on behalf of the 156,000 mentally handicapped people in this country than for the people who suffer from the other forms of mental disorder covered by the amendment.

I say to my noble friend on the Front Bench that the proposals in the Bill once again go directly against stated government policy. The Home Office/Department of Health guidance accompanying Home Office Circular 12/95 states that: those suffering from mental disorder who require specialist medical treatment or social support should receive it from the health and social services". Again it states: Detention in prison is likely to be damaging to the mental health of a mentally disordered person, and the Prison Service is not equipped to provide treatment equivalent to that available in hospital". Quite so. I have to say to my noble friend that the Government now appear less concerned with providing appropriate care and treatment but instead seek to hold all mentally disordered offenders fully legally culpable and responsible for their actions by imposing mandatory sentences.

The combined effect of Clause 2(2) and Schedule 4 paragraph 12(1) as drafted means that the court has no discretion to consider whether detention and treatment under the Mental Health Act, with or without restrictions, may be a more appropriate disposal. The court must impose a life sentence unless there are "exceptional circumstances". The definition of mental disorder under the Mental Health Act clearly includes mental illness, mental impairment and severe mental impairment, which I take to mean mentally handicapped people.

I have to agree with the comment of the Law Society and the Royal College of Psychiatrists referred to by my noble friend Lord Hacking when he so ably moved the amendment that the imposition of a punitive element into the treatment of people with learning disabilities or mental handicap is morally repugnant and contrary to the values of a humane society.

As other noble Lords mentioned, the Government have argued that some of those concerns will be met by the introduction of the new hospital direction set out in Clause 45 of the Bill, which empowers the court, when imposing a prison sentence on an offender suffering from psychopathic disorder, to direct that the offender should first be detained in hospital. But as the Bill is drafted, the hospital direction will apply only to people with psychopathic disorder, with the effect that only those offenders for whom the benefits of treatment are doubtful will get the chance to be treated. Other offenders with mental illness or learning disabilities will automatically be sentenced to imprisonment.

Further to what my noble friend Lord Renton so wisely said about the limitations of Section 45A, I refer my noble friend on the Front Bench to Section 45A(2)(c), where it is a condition of the offender being sent to hospital that the treatment: is likely to alleviate or prevent a deterioration of his condition". As my noble friend Lord Renton said, that cannot possibly apply to the mentally handicapped, who are, by definition, incurable.

Summing up, the Government's proposals are certain to lead to a huge increase in the number of mentally disordered offenders, inappropriately placed in prison, making enormous demands on the Prison Service. As I mentioned at Committee stage, that very unfortunate situation is certain to be made still worse by the Government's community care policy, under which it is evicting mentally handicapped people from the long-stay institutions and forcing them to live, sometimes inappropriately, in an ordinary house in an ordinary street. Indeed, there are now only some 11,000 mentally handicapped people left in long-stay institutions, where they are waiting to be evicted and now, as this Bill is drafted, waiting to be sent to prison.

Lord Annaly

My Lords, I rise to support the amendment of my noble friend Lord Hacking. I speak with particular reference to the deaf. I have an interest to declare, in that I have a younger sister in her thirties who is totally deaf. The problem, whether it was deafness, brain damage or whatever, was not established until she was 10 years of age and went to various experts. It turned out to be deafness. On the strength of that, before he died my father and my stepmother started a charity, of which I am now a trustee. It is called SIGN and campaigns for deaf people and people with mental health problems. I am certainly no expert on this subject but I have had a little to do with it. We have started a number of small residential units in Manchester and London—at Balham, where we have taken over an old church. The ground floor houses a psychiatric unit, which is literally in the street. That all came out of Springfield Hospital. Upstairs is residential. People who have had problems perhaps go into the psychiatric unit on a day basis or a residential basis but there are long-term residents upstairs. We are also involved with deaf clubs.

That leads me to ask the Minister a question. I do not know whether she will be able to answer it. Understandably, people who are totally deaf have behavioural difficulties. They become very frustrated and do things out of sheer frustration. One might say that that is not a mental health problem but perhaps we can all relate to it. Through frustration, those people may end up doing something which would be caught by the present Bill. If somebody fell into that category, can the Minister say whether they would be sent to prison for committing such an offence? I should sincerely hope not, because it would do no good. There would be no facilities for dealing with the deaf, who need specific treatment, medication and the relevant psychiatrists to help them. So I am greatly concerned that they might fall into that particular sphere.

Often, deaf people who have never heard a word, like my sister—and there must be many thousands of others—cannot speak either. They rely totally on sign language. In the deaf world there are two schools of thought: whether to lip read or whether to use sign language. But I know that there is a great shortage of people who are qualified at the top level to sign. When somebody who is totally deaf gets into difficulties and the police are involved, they have to find a qualified sign language expert to communicate with the deaf person, who is probably distressed, to find out what the problem is. There is a great shortage of those experts, which is just another problem. Perhaps the Minister could say whether deaf people come within the amendment.

Baroness Blatch

My Lords, I hope that I shall be able to address many of the anxieties expressed by noble Lords and my noble friends. The amendments would have the effect of upsetting the balance which the Bill provides between the need to ensure that the public are protected from repeat offending and the need to enable effective medical treatment to be given to mentally disordered offenders. I repeat to my noble friend: it is an extremely important issue and it is essential that we get it right. The provisions in the Bill are not inconsistent with our concern for such people.

The first effect of the amendments would be to enable the courts to regard evidence of mental disorder as a reason for not applying the automatic life sentence provided by Clause 2. But again the life sentence is needed to protect the public from further repetition of the most serious sexual and violent offences; to ensure that people who have a history of committing such offences, for whatever reason, receive supervision for life. A disposal under the mental health legislation cannot achieve that. It would therefore frustrate the purpose of the mandatory sentence in protecting the public if evidence of a mental disorder could be regarded as an exceptional circumstance, thus enabling the life sentence to be avoided.

My noble friend may be concerned to ensure that mentally disordered offenders who come to be sentenced under the provision can receive treatment for their disorder. That can be achieved by way of the hospital direction power at Clause 45. Initially that will be available only for psychopathically disordered people, but there is a provision to extend its scope to all categories. Until that happens those people can be transferred to hospital by the Home Secretary if the doctors recommend it. My noble friend Lord Pearson of Rannoch was concerned about this point. If people fall outside that category, and before the extension powers are used, on advice from the medical professionals to the Home Secretary they can be removed to hospital.

Under Clauses 3 and 4 the courts need not apply the mandatory sentence if they think it inappropriate in the light of specific circumstances relating to the offender. The Bill also provides that they retain the power to make a hospital order as an alternative to the mandatory sentence. Paragraph 12(2) of Schedule 4 provides that the courts retain the power to make a hospital order as an alternative to the mandatory sentence. There is therefore no need for a mental disorder to be regarded as an exceptional circumstance if a hospital order appears to be the most appropriate sentence.

My noble friend Lord Renton thought that the test applied would be "exceptional circumstances" in the way we have been discussing hitherto. That is not the case. If the courts believe that the mandatory sentence should be set aside for these purposes, they have the power to do that and substitute the hospital order.

The final effect of my noble friend's amendment would be to enable the courts to substitute a guardianship order under the Mental Health Act 1983 for the mandatory sentences provided by Clauses 2 to 4. My noble friend did not speak to this amendment, but I am assuming that they are all in the same group. The guardianship order is a provision intended to ensure that vulnerable people receive care and support. It is in no way a custodial disposal nor one which provides any sanction over repeated criminal behaviour. A guardian order would be entirely inadequate to provide the public with protection from further repetition of the serious and distressing crimes with which the mandatory sentences are intended to deal. I say again that some psychopathic people are extremely dangerous and a guardianship order would not be appropriate.

My noble friend Lord Hacking referred to disturbing the principle that when a person is suffering from an identifiable psychiatric illness they should not be punished; they should be treated. Perhaps I may pose the following question to my noble friend. What happens if that person is a repeat violent offender who has either completed treatment or is untreatable, or the medical profession claims that treatment is having no effect whatever? Should that person, who may be dangerous, be released into the community?

If my noble friend is suggesting that hospital beds should be kept in cases where the medical profession says that a person is untreatable, cannot be treated further or that treatment is having no effect, he is suggesting that hospitals be turned into secure units for mentally disordered offenders. I have no doubt that my noble friend will respond to that. What is happening at the moment is that people are being released into the community who are dangerous; they are reoffending, and the Bill is attempting to answer that point. Under my noble friend's amendment, where the medical profession itself believes that the person cannot be treated further, he would be released back into the public domain if we did not have the provisions in Clause 2 and therefore the public would not be safe.

My noble friend referred to the fact that under a hospital direction the mentally disordered offender would be returned to prison. That will only be the case on the advice of the responsible medical officer that the offender no longer needs to remain in hospital. Again, my noble friend misunderstands the purpose of the provision. He was suggesting that prison sentences for such people should involve only treatment and not punishment and deterrent. But some people who fall into that category are determined by the courts to be culpable for the crimes that they commit. If they are not culpable for the crimes that they commit, "exceptional circumstances" can be invoked by the courts.

On another point, my noble friend Lord Hacking said that it was fundamentally wrong for a mentally ill person to be sent to prison at all. Except for sentences passed under Clause 2, the court will retain the power and the option of making a hospital order under the Mental Health Act—a point I made for the benefit of my noble friend Lord Renton. Sentencing under Clause 2 is for repeat violent offences from which the public must be protected by supervision for life—it is supervision for life which is important in those circumstances—which cannot be provided by a Mental Health Act disposal.

The options under Clause 2 are that the courts must, for repeat offences, pass a life sentence. They may add a hospital direction under Clause 45 initially for psychopathically disordered offenders but there is the power to extend that. Even if it were not extended, the courts may recommend that the Home Secretary transfer to hospital under Section 47 of the Mental Health 1983. Only if the court accepts other exceptional circumstances for not making a life sentence can it make a hospital order under Section 37 of the Mental Health Act 1983.

Of itself, mental disorder is not an exceptional circumstance. It can be; but it is not of itself. The options under Clauses 3 and 4 are that the court may make a hospital order under Section 37 of the Mental Health Act 1983; it may pass the mandatory sentence and add a hospital direction under Clause 45; it may decide that mental disorder constitutes a specific circumstance which would make it inappropriate to pass a mandatory sentence; it may pass a mandatory sentence to recommend that the Home Secretary transfer to hospital again under Section 47 of the Mental Health Act 1983; or it may simply pass a mandatory prison sentence. Again, it would depend on the court's determination of the culpability of the person.

One can only very much sympathise with the point made by my noble friend Lord Annaly about his sister who is profoundly deaf. However, someone who is profoundly deaf is rather different from the mentally disordered offenders about whom we are talking and to whom these amendments apply. My noble friend referred to behavioural difficulties. We are talking about people committing serious violent or sexual offences. Being profoundly deaf would not necessarily be a reason for exonerating someone in those circumstances. It would still be important for the courts to deal with that case. However, if, as my noble friend went on to say. there were medical needs to be met for that person, the options for the courts under Clauses 2, 3 and 4 would apply and hospital treatment would be afforded.

My noble friend Lord Pearson of Rannoch referred to proposals and said that they would lead to an increase in mentally disordered offenders being sent to prison. Given the flexibility of the provisions under the Bill as proposed, there is no reason why that should be so. The hospital order remains available for all offenders except those receiving a mandatory life sentence. Those sentenced under Clause 2, which is the mandatory life provision, can be sent to hospital under a hospital direction or, before it becomes available for categories other than psychopathic disorders, they can be transferred to hospital on the advice of the courts or the medical profession by warrant of the Home Secretary of the day.

I believe that what we have here is certainly more flexibility than we have in the courts at the moment. The provision prevents anyone being released into the community who is a repeat violent and/or sexual offender without having a proper assessment of risk. It is important that it ensures that the medical needs, whether they are mental health needs or physical needs, are properly met by the medical profession.

Lord Pearson of Rannoch

My Lords, before my noble friend sits down, I have to say to her that she has addressed her remarks largely to psychopaths and mentally ill offenders. Perhaps she will briefly address herself to new Section 45A(2). It is absolutely clear that that cannot apply to mentally handicapped offenders. Mentally handicapped people are not suffering from a psychopathic disorder. The subsection states: that the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and"— the word "and" is important— that such treatment is likely to alleviate or prevent a deterioration of his condition". None of that can apply to a mentally handicapped offender.

Baroness Blatch

My Lords, the point I have made to my noble friend is that under Clause 45 we have a power to extend to other categories; and it could be to the category that my noble friend is referring to. Under Clauses 3 and 4 we have said that the courts can set aside mandatory sentences and substitute a person going to hospital by using the Mental Health Act. If a hospital direction is not made or extended to other categories, it is also possible for the medical profession and/or the courts to recommend to the Home Secretary that a hospital provision is needed.

Lord Hacking

My Lords, before my noble friend sits down, I wonder whether she can help the House on two matters arising out of what she has just told us. In the light of the answer that she has just given to my noble friend, is she able to give an undertaking relating to the proposed Section 45A(10) as to when the Secretary of State will bring in an order to extend the reference under subsection (2) beyond psychopathic disorder? It would certainly enormously help me if she could give an answer to that. I have another subsidiary question but perhaps it would be easier if my noble friend answered that one first.

Baroness Blatch

My Lords, with the leave of the House, I am happy to come back to my noble friend. I cannot give him a specific date by which that power would be extended. What I can say to him is that in the meantime we would cover the concerns that my noble friend has, in that the courts could recommend to my right honourable friend that he directs to hospital in the absence of this extended power rather than the courts themselves using the hospital direction. Either way, if there were medical needs to be met, whether mental or physical, in the absence of the power being extended beyond those who have psychopathic disorders, it would be for the courts and/or the medical profession to recommend that the Home Secretary of the day should use his powers of direction.

Lord Hacking

My Lords, my noble friend treats the House with her normal courtesy. I am grateful to her for answering that question before she sat down. Indeed, before she is too firmly in her seat, I have a second question which arises out of her remarks. This is an important question. I thought I heard my noble friend say that, in view of the amendment that your Lordships agreed to in Committee, which is now in Clause 1 of the Bill, those with mental illnesses would fall under the provision which says that the court shall have regard to the specific circumstances relating to the offender. If my noble friend was saying that, I should be grateful to know that before I reply.

Baroness Blatch

My Lords, I am not in a position to say what, given the discussions that are going on at the moment, the fate of Clauses 2, 3 and 4, which were Clauses 1, 2 and 3 at the Committee stage of the Bill, will be. Therefore, I am unable to tell my noble friend that. What I would like to do is make a general point as opposed to the specific point relating to Clauses 2, 3 and 4. It would be for the courts to determine the degree of culpability where the mental condition of a person may actually have a direct bearing. If culpability is determined by the courts, the sentence follows. But it may well be that the actual condition of the person has a direct bearing on culpability and it may well fall—but it would be a decision for the court—into the category of exceptional circumstances.

Lord Hacking

My Lords, this is a difficult moment in your Lordships' House. I am grateful to those noble Lords on this side of the House who have spoken in my favour. I greatly regret, looking towards the noble Lord, Lord McIntosh, that I have not had support from his side of the House, although I appreciate that the noble Lord, Lord Alderdice, is unavoidably absent. I greatly regret to say that it makes it a very frustrating experience for those in your Lordships' House who are still trying to improve the Bill and are still trying to obtain the support of the House in our efforts to improve the Bill that we no longer have support from the Labour Benches. I am very sorry, however these things are agreed among the usual channels, in which I have never taken part. that the result has been that we have lost the support of the noble Lord from the Labour Front Bench and also of Peers who sit on the Benches behind him.

However, if I were to call a Division now, I have no doubt that there are sufficient Peers who are still in the Library, the Dining Room and other parts of the House who have not come to listen to the argument and who would therefore be voting ignorant of the argument. I have no doubt—I do not say this in a disrespectful sense—that a whole lot of ignorant Peers, ignorant only in the sense that they have not listened to the argument, would vote against it. Faced with that it seems that I have no alternative but to withdraw the amendment.

Noble Lords

Hear, hear!

Lord Hacking

My Lords, I am hearing too many "Hear, hears" from the Government Front Bench, which does not encourage me to withdraw the amendment. If I hear any more "Hear, hears" from the Government Front Bench I shall divide the House. This is a very important matter. I believe that your Lordships have given the right advice to the Government. The Government are not following that advice. However, I reserve my right to come back on this matter at Third Reading.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved.]

7.30 p.m.

Baroness Blatch moved Amendment No. 7:

Page 2, leave out lines 33 and 34.

The noble Baroness said: My Lords, in moving this amendment I am speaking also to Amendments Nos. 8, 8A and 9. The automatic life sentence in Clause 2 of the Bill may be imposed on an offender convicted for a second time of a serious violent or sexual offence, whether the first conviction was in England and Wales, Northern Ireland or Scotland. Clause 2 lists the relevant qualifying offences in each jurisdiction. Certain of the qualifying offences in Scotland and Northern Ireland are specified by reference to the corresponding statutory offence in England and Wales. However, a number of the Scottish offences are common law offences. Therefore, to avoid any possibility of debate about whether Clause 2, as drafted, has the intended effect in respect of Scottish qualifying offences, we have decided that each of the Scottish offences be listed separately in Clause 2 rather than specified by reference to the equivalent statutory offence in England and Wales. That is what Amendments Nos. 7, 8 and 9 do.

Amendment No. 8A makes a minor and technical change to the description in Clause 2(6)(d) of one of the Scottish qualifying offences. At present, it refers to, sodomy, or an attempt to commit sodomy, where one of the parties does not consent". Amendment No. 8A substitutes for the words, one of the parties does", the words, the complainer"— which is a very Scottish phrase— that is to say, the person against whom the offence was committed, did". It is intended to make the same change to the relevant provision in the Crime and Punishment (Scotland) Bill as a result of debate at Committee stage of that Bill. Amendment No. 8A keeps the provision in the Bill in line with the Scottish Bill. The change does not alter the meaning of the subsection, but it makes it easy to understand. These amendments are simply for clarification and they do not change the intention of the clause.

I raise an informative additional note. I may be asked why the Northern Ireland offences are not listed. That is unnecessary because the statutory definition of the Northern Ireland offences, which are specified by reference to England and Wales, is the same as the definition of England and Wales offences and covered by the same legislation. I beg to move.

Earl Russell

My Lords, perhaps I may ask for a little clarification of this amendment. I apologise for doing so, but I hoped that a noble and learned Lord in the Scottish discipline would be in the Chamber, but he is not. Am I right in thinking that these amendments arise from the speech made by the noble and learned Lord, Lord Hope of Craighead, at Second Reading of this Bill? I believe that he drew attention to Clause 2(6)(f), which is the offence of, lewd, libidinous or indecent behaviour or practices". If my recollection is correct, he pointed out that that may be tried in Scotland either in the lower or the higher court. He suggested that it should be the effect of this Bill that the mandatory sentence should be clocked up only by an offence dealt with in the higher court. Have the Government accepted that suggestion; have they taken any further thought about it and what action do they propose to take?

Baroness Blatch

My Lords, there has been an extensive discussion between the noble and learned Lord, Lord Hope, and my noble and learned friend the Lord Advocate. He did have concerns, all of which have been met at this stage. These amendments refer to a different point from the one that the noble Earl referred to. That has also been discussed with the noble and learned Lord, Lord Hope. My understanding is that he has accepted the amendments.

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 8, 8A and 9:

Page 2, line 35, at end insert— ("() attempted murder, incitement to commit murder or conspiracy to commit murder; () rape or attempted rape;").

Page 2, line 37, leave out ('one of the panics does") and insert ("the complainer, that is to say, the person against whom the offence was committed, did").

Page 2, line 43, at end insert— ("() 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 the Firearms Act 1968; () an offence under section 16 (possession of a firearm with intent to injure). section 17 (use of a firearm to resist arrest) or section 18 (carrying a firearm with criminal intent) of that Act;"). On Question, amendments agreed to.

The Earl of Courtown

My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that the Report stage begins again not before twenty-five minutes before nine o'clock.

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