HL Deb 19 March 1997 vol 579 cc936-45

4.46 p.m.

Report received.

[Amendment No. 1 not moved.]

Clause 1 [Imprisonment for life on further conviction for certain offences]:

The Lord Advocate (Lord Mackay of Drumadoon) moved Amendment No. 2: Page 2, line 16, leave out from ("opinion") to ("decline") in line 19 and insert ("that it would be in the interests of justice for it to pass a sentence other than the sentence which that subsection would require it to pass, it may").

The noble and learned Lord said: My Lords, in moving this Amendment, I should like to speak also to Amendments Nos. 3, 4, 5, 19 and 19A.

At the outset, it may assist our deliberations this afternoon if I inform your Lordships that, following discussions which have taken place over the past 48 hours and following reflections on the time that remains before Parliament is to be prorogued, the Government have decided to table amendments which they believe will command the support of your Lordships' House. If that belief turns out to be correct, it will enable an appropriate course to be followed to allow the Bill to reach the statute book and enable the Government's desire that the provisions that command widespread support should be on the statute book not to fall when Parliament is prorogued. The detail of the amendments will become apparent as we go through them on the Marshalled List.

I regret that the first group of amendments involves considering a number of complicated and inter-related amendments at a very late stage in the Bill's proceedings. But that need has arisen, as I said, in view of the state of play over the past few days. It might be simplest for me to deal first with Amendments Nos. 3 and 5.

Amendment No. 3 is a technical amendment designed to make the list of qualifying offences for the purposes of Clause I more comprehensible. It follows discussion at Committee stage when points were raised by the noble and learned Lords, Lord Hope and Lord McCluskey. I trust that it will prove acceptable to your Lordships.

Amendment No. 5 again is a minor technical amendment. It amends an inappropriate reference to a "qualifying" offence in Clause 2, which deals with a minimum sentence of seven years' imprisonment for a third or subsequent Class A drug trafficking offence, by replacing it with a more accurate reference to a "Class A drug trafficking" offence. The phrase "qualifying offence" is relevant for the purposes of Clause 1, but not for Clause 2. That is why we tabled the amendment.

Now that Amendment No. 1 has not been moved, Amendment No. 2 is of importance. It is tabled in my name and seeks to replace the "exceptional circumstances" test in Clause 1 with a test based on the court's consideration of the interests of justice. In relation to Clause 2, Amendment No. 4 in my name would introduce an "interests of justice" test to that clause as well.

We are mindful of both the emphasis we have placed on the need for cross-Border consistency in sentencing for drugs and concerns expressed by your Lordships in relation to the desirability of such consistency. The amendment therefore seeks to replicate for Clause 2 the precise terms of the provisions in Amendment No. 1 relating to Clause 2. It therefore mirrors the terms of amendments already passed by your Lordships to the provisions for minimum mandatory sentences for drug traffickers which are to be found in the Crime (Sentences) Bill.

It may be helpful to noble Lords if I confirm now that I do not intend moving Amendment No. 4, but intend to commend manuscript Amendment No. 3A to your Lordships in its place. Likewise, Amendments Nos. 19 and 19A are to some extent alternative. I do not intend to move Amendment No. 19 but will move Amendment No. 19A instead, which makes for a simpler provision overall.

Lastly, Amendments Nos. 2 and 3 together provide essentially for the same effects as the effects to Clauses 1 and 2 of Amendment No. 18A tabled in the name of the noble and learned Lord, Lord McCluskey. I understand that the noble and learned Lord is sitting in court in Scotland today and for that reason cannot be with us. However, I trust that those amendments would have proved acceptable to him had he been present.

The question may arise as to where all that leaves us. It may not be helpful at this stage to say too much, but perhaps I can summarise it in these terms. If the amendments I have indicated I intend to move are accepted by your Lordships, Clauses 1 and 2 will require the courts to consider imposing a life sentence in the case of Clause 1 or a minimum sentence in the case of Clause 2 when the appropriate provisions apply. But the amendments will also ensure that the courts retain a discretion, which they presently have, not to impose such sentences in the interests of justice.

Clearly this is not as large a step as the Government were hoping to make. The reasons for that are obvious. I hope noble Lord on all sides will accept that the package of amendments put forward today is both an appropriate and a responsible way to proceed. We believe that in the broad scheme of things the Bill nevertheless involves a small step forward. It may be helpful to encourage those who sit as senators in the High Court constantly to have under review, as I am sure they normally do, their own sentencing practices. In particular it may serve to remind them of the existence of the power of the Appeal Court to issue sentencing guidelines and, if that power were to be used following the passage of this Bill, it would be beneficial to all concerned. It would also encourage the courts to send the right message to those who repeatedly commit serious sexual or violent offences or who repeatedly traffic in Class A drugs. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 3: Page 3, line 2, leave out ("one party does") and insert ("the complainer, that is to say the person against whom the offence was committed, did").

The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 2. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved manuscript Amendment No. 3A: Page 5, leave out lines 8 to 15 and insert— ("(3) The court shall not impose the sentence otherwise required by subsection (2) above where it is of the opinion that there are specific circumstances which—

  1. (a) relate to any of the offences or to the offender; and
  2. (b) would make that sentence unjust.").

The noble and learned Lord said: My Lords, manuscript Amendment No. 3A was spoken to with Amendment No. 2. I beg to move.

On Question, manuscript amendment agreed to.

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

[Amendment No. 4 not moved.]

Lord Mackay of Drumadoon moved Amendment No. 5: Page 5, line 18, leave out ("qualifying") and insert ("class A drug trafficking").

The noble and learned Lord said: My Lords, Amendment No. 5 was spoken to with Amendment No. 2. I beg to move.

On Question, amendment agreed to.

Clause 4 [Imposition of supervised release orders on conviction of qualifying offence]:

Lord Mackay of Drumadoon moved Amendment No. 6: Page 7, line 11, at beginning insert ("Subject to subsection (11) below,").

The noble and learned Lord said: My Lords, in moving Amendment No. 6, with the leave of the House I shall speak also to Amendment No. 7. The two amendments are intended to ensure that supervised release orders are used only in appropriate circumstances. Specifically it relates to the powers of the court to make supervised release orders. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 7: Page 7, line 22, at end insert— ("(10) For the purposes of this section "court" does not include a District Court except where constituted by a stipendiary magistrate. (11) No court may impose a supervised release order for a period longer than the maximum period of imprisonment which that court may impose for a common law offence.".").

The noble and learned Lord said: My Lords, Amendment No. 7 was spoken to with Amendment No. 6. I beg to move.

On Question, amendment agreed to.

Clause 5 [Restriction of liberty orders]:

Lord Sewel moved Amendment No. 8: Page 7, line 28, after ("person") insert ("of 16 years of age or more").

The noble Lord said: My Lords, in moving Amendment No. 8 I shall speak also to Amendments Nos. 9 to 12 and Amendment No. 16. These amendments have the effect of removing from the Bill a provision which was inserted into it at Committee stage in another place; that is, the extension of electronic tagging to persons aged 16 years of age and under.

It is fair to say that that was almost a last-minute addition to the Bill in the other place and was inserted after a limited amount of consultation. In so far as there was consultation, it was overwhelmingly hostile to the idea of electronic tagging being extended to those people aged under 16, mainly because a number of people recognised that it was likely to be counter-productive as well as being ill-conceived in the first place.

The other great threat that many of us saw was that the proposal would erode the strength of the Scottish children's panel hearing system, which is recognised as one of the great advantages of the Scottish criminal justice system, especially in relation to juveniles. I am hopeful and pleased that the Government now feel able to accept these amendments. They significantly improve the Bill. I beg to move.

The Earl of Mar and Kellie

My Lords, perhaps I may speak briefly to Amendments Nos. 13 to 15 in my name. They too are concerned with the removal of children from the remote monitoring system—"electronic tagging" as it has been nicknamed. I acknowledge that the amendments moved by the noble Lord, Lord Sewel, go further than my amendments. That may well be appropriate, in that operational experience should be gained with the new community sentence by applying it to adults and young offenders rather than to children. Perhaps some element of monitoring by humans may be tried later.

Amendments Nos. 13 and 14 are aimed at excluding children from the remote monitoring and will allow human monitoring. Amendment No. 15 is aimed at all offenders and not just children. Remote monitoring may well be a viable alternative to custody but I am keen that it be part and parcel with supervision, preferably through a probation order. I shall be interested to see how the pilot projects work out, especially with regard to the comparison between remote and supervised restriction of liberty orders.

5 p.m.

Lord Mackay of Drumadoon

My Lords, it may be helpful if I deal with the amendments separately. With regard to the amendment moved by the noble Lord, Lord Sewel, the Government's view is that electronic tagging may in the future have a role to play in dealing with some of the small number of young offenders who come before the courts. As I think all noble Lords will appreciate, it was not proposed that electronic tagging should apply to offenders who are dealt with before the children's panel. Therefore we do not accept that this posed any threat to the valuable work which that body does. Nevertheless, the Government are aware that there is a degree of nervousness about the option of tagging offenders dealt with in the courts who are under 16 years of age. We are aware of the view that was expressed that this disposal should be piloted first with adult offenders before being piloted with young offenders. We have therefore taken the view that it is sensible to accept the amendments in the name of the noble Lord, Lord Sewel, and no opposition is offered to them.

I turn to the amendments spoken to by the noble Earl, Lord Mar and Kellie. Amendments Nos. 13 and 14 would have no effect if we agree, as I have already indicated we do, that child offenders should not be liable to receive any form of restriction of liberty order. Amendment No. 15 would remove discretion from the courts. In the courts' view, the courts ought to be left with discretion in this area at least until such time as we have received the results of the proposed pilot schemes. If those results were to indicate that discretion was not being exercised appropriately, the issue would require to be looked at again. However, at this stage, I believe it would be premature to assume that the courts cannot be trusted with the discretion which Clause 5 makes available to them. For that reason, the noble Earl's amendment is unacceptable.

On Question, amendment agreed to.

Lord Sewel moved Amendments Nos. 9 to 12: Page 8, leave out lines 4 to 11 and insert ("for any period up to 12 months."). Page 8, line 45, leave out from beginning to end of line 2 on page 9. Page 9, line 38, leave out ("or (4)"). Page 10, leave out lines 1 to 5.

The noble Lord said: My Lords, these amendments have already been spoken to. I beg to move.

On Question, amendments agreed to. [Amendments Nos. 13 to 15 not moved.]

Lord Sewel moved Amendment No. 16: Page 12, line 7, leave out ("or, as the case may be, (4)").

On Question, amendment agreed to.

Clause 13 [Increase in sentences available to sheriff and district courts]:

The Deputy Speaker

My Lords, I call manuscript Amendment No. 16A in the name of the noble and learned Lord, Lord McCluskey.

The Earl of Mar and Kellie

My Lords, the noble and learned Lord, Lord McCluskey, has sent me a message asking me to apologise on his behalf for his inability to be present due to his sitting in court in Edinburgh.

[Manuscript Amendment No. 16A not moved.]

[Manuscript Amendments Nos. 16B to 16G not moved. ]

Clause 15 [Driving disqualifications]:

The Earl of Mar and Kellie moved Amendment No. 17: Page 21, line 44, at end insert— ("(4) A court shall not order an offender to be disqualified for holding or obtaining a licence to drive a motor vehicle under this section unless it has obtained a report as to the circumstances and character of the offender.").

The noble Earl said: My Lords, in moving this amendment, I wish to speak also to Amendment No. 18. These amendments are aimed at ensuring that the courts have a full appraisal of their intended sentencees' circumstances. This will enable them to understand the implications of such a sentence and so to understand the severity of such a sentence. There is nothing new in the idea of the courts seeking suitability reports. This happens with probation, community service, intensive probation and other programmes such as domestic violence projects. The reason for seeking suitability reports is obvious. These sentences need to be accurately imposed. Since I am known to be in favour of effective community-based sentences, I am bound to argue for the accurate targeting of this new community sentence. I believe it to be limited in its application but worth exploring carefully. I understand that the Government have been giving further thought to the administration of this disqualification measure. I am looking forward to hearing the noble and learned Lord the Lord Advocate telling the House about these reconsiderations and new considerations. I beg to move.

Lord Mackay of Drumadoon

My Lords, the appropriateness of this new disposal and when the court will use it or could use it have been discussed at some length during the earlier stages of the Bill both in your Lordships' House and in another place. As I have previously explained, the court can already call for whatever reports it requires to reach a conclusion about how to deal with any offender. In cases of fine default, the court will inquire into the offender's means before deciding how he or she is to be dealt with. That is well-established practice. I can see no reason why the court will not adopt the same approach when contemplating the use of this new disposal.

It is an innovative step and we want to be sure that the new arrangements have the desired positive effect. That is why we have provided for trials of the new measure first through pilot schemes before consideration is given to its more widespread introduction. We shall consult fully on the proposals for pilot schemes before any action is taken. Equally, when the results of the pilot schemes become known, those, too, will be available for public discussion.

I have given a full explanation of what will be involved in the pilot schemes. On that basis I hope that the noble Earl will be satisfied that it would he wrong at this stage to alter what is proposed. If the need for that arises at a later stage, it can certainly be addressed then. On that assurance I trust that he will withdraw the amendment.

The Earl of Mar and Kellie

My Lords, I thank the noble and learned Lord for that assurance that the courts will approach this matter seriously. It sounds to me as though suitability reports will be very much part of the pilot projects. I hope that that will end up in the guidance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 18 not moved.]

[Manuscript Amendment No. 18A not moved.]

Clause 18 [Automatic sentences: jurisdiction and appeals]:

Lord Mackay of Drumadoon moved manuscript Amendment No. 19ZA: Page 26, line 12, leave out from ("decision") to end of line 14.

The noble and learned Lord said: My Lords, this amendment was spoken to with Amendment No. 2. I beg to move.

On Question, amendment agreed to.

[Manuscript Amendment No. 19A not moved.]

Clause 20 [Transfer of rights of appeal of deceased person]:

The Deputy Speaker

My Lords, I call Amendment No. 20 in the name of the noble and learned Lord, Lord Mackay of Drumadoon.

Lord Harris of Greenwich

My Lords, before we go any further, as we are cheerfully agreeing to a number of manuscript amendments and as a number of us do not have the good fortune to have them in front of us, it would be desirable for us as a revising Chamber at least to know what we are talking about.

Lord Mackay of Drumadoon

My Lords, I hope we are aware of what we are talking about. Printed versions of the manuscript amendments are available to noble Lords. I know that a number of noble Lords have them. If they do not all have them, that is a matter of regret. But I think they have been available for some time, albeit that they became available this morning, which is of the very nature of manuscript amendments. I can certainly assure the noble Lord that manuscript amendments in my name were sent, and physically delivered, to the office of the noble Lord and his colleagues.

Lord Harris of Greenwich

My Lords, the point is that if we are to have any more manuscript amendments, it would be extremely helpful if the noble and learned Lord could tell us what their effect will be.

The Earl of Balfour

My Lords, the manuscript amendments are in the Printed Paper Office. They have been available for some time, but not necessarily at either end of this House.

Lord Mackay of Drumadoon moved Amendment No. 20: Page 28, line 30, leave out ("must") and insert ("may").

The noble and learned Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 21. These two amendments would allow the High Court to grant a person authorisation at any time to institute or commence an appeal in respect of a deceased person if cause for that course of action can be shown. These amendments follow from the commitment which I gave to the noble Lords, Lord Macaulay and Lord Sewel, when this Bill was in Committee on 10th March, in response to their own amendment. I stated then that I would be happy to take the amendment away, giving a clear commitment that the Government would come forward with an amendment which took account of certain technical, drafting concerns. That is what these amendments do. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 21: Page 28, line 32, at end insert ("or at such later time as the Court may, on cause shown, allow.").

The noble and learned Lord said: My Lords, I have already spoken to this amendment with the previous amendment. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 22: Page 28, line 33, leave out ("Secretary of State") and insert ("Commission").

The noble and learned Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 23, 26, 43, 45 to 47, 50 to 53 and 55.

Your Lordships will be aware that the Government have been of the view that the need for a commission to review allegations of miscarriages of justice in Scotland, of the type recently set up in England, had not been clearly established. The evidence which the Sutherland Committee had received on this matter was divided and there was no clear evidence that the present appeal system and the procedure for the Secretary of State to refer cases to the Court of Appeal was failing. The committee's main concerns were with the appeals criteria. We believed that our acceptance of virtually all of the recommendations on appeals criteria would effectively address the main concerns of those interested and concerned about alleged miscarriages of justice in Scotland.

We believed that the terms of the committee's report on whether there should be an independent review body did not demonstrate any overwhelming pressure or compelling case for this to be set up. We accepted, like the committee itself, that the arguments for and against change seemed fairly evenly balanced". Ultimately, we came down on one side on this issue whilst the committee came down on the other.

After further consideration and taking account of the views expressed in your Lordships' House at Committee stage, we are prepared to accept that an independent body to review alleged miscarriages of justice should be set up, replacing the current statutory involvement of the Secretary of State.

This group of amendments and in particular Amendment No. 26 provide for that. In general they are based on the recommendations put forward by the Sutherland Committee, but some of the detail and mechanics of what is proposed correspond to some of the provisions of the Criminal Appeal Act 1995, which established the Criminal Cases Review Commission in England and Wales. These have required to be adjusted, where appropriate, for the Scottish context. I am not sure that it is necessary to go through these in detail. I shall be happy to answer any points raised by noble Lords in speaking to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 23: Page 28, line 34, leave out ("124(3)") and insert ("194B").

The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 22. I beg to move.

On Question, amendment agreed to.

5.15 p.m.

Lord Mackay of Drumadoon moved Amendment No. 24:

Page 30. leave out lines 41 to 44 and insert— ("60A.—(1) This section applies where the court, in respect of a person charged or brought before it, has made—

  1. (a) an order under any of paragraphs (a) to (d) of subsection (2) of section 57 of this Act or such a decision as is mentioned in paragraph (e) of that subsection; or
  2. (b) a hospital order, guardianship order, restriction order or a hospital direction.
(2) Where this section applies, the prosecutor may appeal against any such order, decision or direction as is mentioned in subsection (1) above—")

The noble and learned Lord said: My Lords, in speaking to this amendment, I shall speak also to Amendments Nos. 25, 49 and 54. Clauses 20 and 21 of the Bill make provision for rights of appeal by the prosecutor. All possible disposals following conviction, including mental health disposals, are now covered by these two clauses. However, on closer examination it has been appreciated that the provisions do not cover disposals following a finding of insanity of the accused. The purpose of these amendments is to correct that anomaly. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 25: Page 30, line 45, after ("order") insert (", decision").

The noble and learned Lord said: My Lords, I spoke to this amendment with the previous amendment. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 26: After Clause 24, insert the following new clause—

SCOTTISH CRIMINAL CASES REVIEW COMMISSION

(".—(1) After Part X of the 1995 Act there shall be inserted the following new Part—

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