HL Deb 24 February 1998 vol 586 cc573-618

4.35 p.m.

House again in Committee.

Schedule 2 [Procedure where persons are sent for trial under section 42]:

Lord Falconer of Thoroton moved Amendment No. 208: Page 83, line 45, at beginning insert ("Subject to paragraph 10A below").

The noble and learned Lord said: With the leave of the Committee, I should like to move Amendment No. 208 and speak at the same time to Amendments Nos. 209, 210 and 211.

Before the Statement on Iraq we were dealing with Clause 42 of the Bill, which permits indictable-only offences to go fast track to the Crown Court without the usual stages in the magistrates' court. The amendments I shall move relate to those provisions. Much of Schedule 2 of the Bill, to which these amendments relate, is concerned with what should happen to related charges where the indictable-only charge which caused the case to be sent to the Crown Court is for some reason no longer being pursued. In those circumstances, it would clearly be unjust for the either-way charges automatically to be retained in the Crown Court. It may be that, but for the effect of the indictable-only charge, both the magistrates and the defendant would have been content for them to he dealt with in the lower court: hence the rather complicated provisions in paragraph 5 onwards, which are modelled on the mode of trial provisions in the Magistrates' Courts Act 1980 as amended by Section 49 of the Criminal Procedure and Investigations Act 1996.

Those provisions which are mainly in paragraph 5 onwards are not, however, appropriate in the case of young people to whom the mode of trial procedure does not apply. The objective once again is to ensure that the defendant is not disadvantaged when he or she finds himself or herself in the Crown Court for an either-way charge through the accident of its having been associated with an indictable-only charge which is no longer being pursued. It follows that the considerations which determine whether the Crown Court should deal with a juvenile should be the same as those which would normally be used by the magistrates in deciding whether to commit him to the Crown Court for trial. That is the effect of the amendments.

The amendments provide for a young person in such a case to be remitted to the magistrates' court for trial except in two circumstances. These are either that he is charged with an offence which is a grave crime for the purposes of Section 53 of the Children and Young Persons Act 1933 and the court considers that it should be possible for him to be sentenced under that provision, or that he is charged jointly with an adult on an either-way offence and it is necessary in the interests of justice that they should both be tried at the Crown Court. Once the indictable-only charges have gone, in only those two circumstances will the juvenile stay in the Crown Court. There is a further amendment. No. 210, but that simply corrects a typographical error. I beg to move Amendment No. 208.

Lord Waddington

Perhaps I can take this opportunity of making some general comments on Schedule 2 and then invite the noble and learned Lord to correct me if I have the situation wrong, which may well be the case.

The procedures set out in Schedule 2 remind us that doing away with committal proceedings may place a considerable additional burden on the Crown Court. It may be worth while reminding ourselves as practitioners that Clause 42 does not mean that, every time a person is brought before a magistrates' court charged with an offence triable on indictment, the case must go to the Crown Court. When a defendant appears before a magistrates' court charged with an offence triable only on indictment and on reflection it appears to both the defence and the prosecution that a lesser charge could meet the justice of the case, there is no reason why the charge should not be withdrawn, a lesser charge put to the defendant and the matter dealt with summarily on the same day.

I can remember cases where I appeared before a magistrates' court and committal proceedings were commenced. It then became apparent that not only was the major charge misconceived, but also that the lesser charge which was covered by the statements was one which could conveniently be tried by the magistrates. On those occasions the committal proceedings were terminated; the magistrates' court changed its identity from being committing magistrates to magistrates sitting summarily; the lesser charge was put to the defendant; he elected to have the case dealt with by the magistrates and the matter was dealt with on that day. Just because a person has been charged with an offence which is only triable on indictment, there is no reason why practitioners should not bear in mind that that does not mean an end to the matter; in other words, that they can all sit back and let the matter go to the Crown Court with all the attendant burdens on the Crown Court that that entails.

One further point should be made clear, though I do not recommend this course for one moment. There is nothing in Schedule 2 to prevent a defendant turning up on the day the case is listed for trial and, before arraignment, arguing that the statements do not disclose an offence. Obviously that is highly undesirable and messes up the court list. But it surely is not right to give the impression that the only way in which a trial can be aborted is by initiating the procedures set out in Schedule 2; making a special application to the court before the day of trial and then there being some hearing before the court or some determination by the judge that there is no case to answer.

I hope that I am right on those two points. They may allay some people's fears that the new procedure is hound to put a considerable additional burden on the Crown Court.

Lord Henley

I rise briefly to say that we have no objection to these amendments. I take the opportunity also to thank the noble Lord, Lord Williams, for helpfully writing to us at an early stage with details of the various government amendments that were to be proposed. Those were dealt with in his letter of 30th January.

The noble Lord mentioned three amendments in his letter—Amendments Nos. 208, 209 and 211—and no mention was made of Amendment No. 210. However,I worked out for myself, as the noble and learned Lord the Solicitor-General stressed, that it only corrects a typographical error. I am grateful for the assistance the Government provided on this occasion and we have no objection to the amendments.

Lord Falconer of Thoroton

I am grateful for the intervention of the noble Lord, Lord Waddington. He is right when he says that these provisions only apply where there is an indictable-only offence. It means that if the indictable-only offence drops away, there is specific provision within Schedule 2 for the matter to revert to a less elevated mode of trial; namely, a summary trial.

I believe that deals with the noble Lord's first point and it is a point worth underlining; namely, the fact that one starts off on an indictable-only route, does not mean that one must stick with it if a lesser charge, which is not an indictable-only one, looks more appropriate. I am grateful to the noble Lord for reminding us, and practitioners in the wider world, of the position.

In relation to the position of applications for dismissal, the noble Lord has seen paragraph 2 of Schedule 2, which provides for applications to be made to dismiss charges on the papers. I draw attention to the fact—I am not sure that this is what the noble Lord had in mind but it may be—that such an application can he made either orally or in writing to the Crown Court. It can therefore be made at any time, subject to the rules. I hope that meets the noble Lord's second point. I am not sure that it does, but it is the best that I can do at the moment. If I have not met the point, perhaps he will raise it with me.

Lord Waddington

It seemed an obvious point and hardly one worth making. Leaving aside Schedule 2 entirely, there is nothing in the new Bill which prevents a person appearing on the day of trial, when the case is listed for trial and before arraignment, arguing that he should not stand trial for the offence because the papers before the court do not reveal an offence.

Lord Falconer of Thoroton

That is absolutely right and that is a right that any person standing trial on indictment has in any event at the moment. It is an important point and I am sorry that I did not pick it up quicker. I believe that deals with the points made by the noble Lord, Lord Waddington. I am grateful to the noble Lord, Lord Henley, for indicating his support for the amendments.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 209 to 211: Page 84, line 21, at beginning insert ("Subject to paragraph 10A below"). Page 85, line 24, after ("if"') insert ("he"). Page 85, line 43, at end insert— ("10A.— (1) This paragraph applies, in place of paragraphs 5 to 10 above, in the case of a child or young person who—

  1. (a) has been sent for trial under section 42 of this Act but has not been arraigned; and
  2. (b) is charged on an indictment which (following amendment of the indictment, or as a result of an application under paragraph 2 above, or for any other reason) includes no offence that is triable only on indictment.
(2) The Crown Court shall remit the child or young person for trial to a magistrates' court acting for the place where he was sent to the Crown Court for trial unless—
  1. (a) he is charged with such an offence as is mentioned in subsection (2) of section 53 of the 1933 Act (punishment of certain grave crimes) and the Crown Court considers that if he is found guilty of the offence it ought to be possible to sentence him in pursuance of subsection (3) of that section; or
  2. (b) he is charged jointly with an adult with an offence triable either way and the Crown Court considers it necessary in the interests of justice that they both be tried for the offence in the Crown Court.
(3) In sub-paragraph (2) above "adult" has the same meaning as in section 42 of this Act.").

The noble and learned Lord said: With the leave of the Committee, I shall move these amendments en bloc. I beg to move.

On Question, amendments agreed to.

Schedule 2, as amended, agreed to.

4.45 p.m.

Lord Falconer of Thoroton moved Amendment No. 212: Before Clause 44, insert the following new clause—


(". For section 7A of the 1985 Act there shall be substituted the following section—

"Powers of non-legal staff.

7A.—(1) The Director may designate, for the purposes of this section, members of the staff of the Crown Prosecution Service who are not Crown Prosecutors.

(2) Subject to such exceptions (if any) as may be specified in the designation, a person so designated shall have such of the following as may be so specified, namely—

  1. (a) the powers of a Crown Prosecutor in relation to decisions whether to institute or continue criminal proceedings;
  2. (b) the powers and rights of audience of such a Prosecutor in relation to—
    1. (i) applications for, or relating to, bail in criminal proceedings;
    2. (ii) the conduct of criminal proceedings in magistrates' courts other than trials.

(3) A person so designated shall exercise any such powers subject to instructions given to him by the Director.

(4) Any such instructions may be given so as to apply generally.

(5) For the purposes of this section—

  1. (a) "bail in criminal proceedings" has the same meaning as it has in the Bail Act 1976 by virtue of the definition in section 1 of that Act; and
  2. (b) a trial begins with the opening of the prosecution case after the entry of a plea of not guilty and ends with the conviction or acquittal of the accused."").

The noble and learned Lord said: Amendment No. 212 inserts a new clause in the Prosecution of Offences Act 1985, with a view to giving the Director of Public Prosecutions the power to designate persons who are not lawyers and give them power to conduct criminal proceedings in magistrates' courts and also to review cases.

The new clause gives effect to two recommendations in the report, Reducing Delay in the Criminal Justice System. One was that the Director of Public Prosecutions should confer on staff of the Crown Prosecution Service who are not lawyers, the power of a crown prosecutor to review files; the other, that such lay staff should be able to present uncontested cases in magistrates' courts.

The new clause enables the DPP to designate members of CPS staff who are not legally qualified for two purposes. The first is making decisions whether to institute or (more usually) continue cases; at present a decision to prosecute cannot be taken by any member of staff of the CPS who is not a crown prosecutor. The second is conducting criminal proceedings in magistrates' courts other than contested trials. Such proceedings include bail applications, which non-qualified staff can already be designated to deal with under Section 7A of the Prosecution of Offences Act 1985.

A lay member of staff who has been designated under this clause will have the same powers and rights of audience as crown prosecutors. Such a person would be required to exercise those powers subject to instructions given by the DPP, which would cover (among other things) the circumstances in which it would be appropriate for proceedings to be discontinued. Lay presenters are already successfully used in substantial numbers of cases brought in the magistrates' courts by prosecuting authorities other than the CPS; for example, HM Customs & Excise and the Health and Safety Executive.

I should like to emphasise that the effect of this provision is not to extend the rights of lay presenters to review cases or to appear in cases beyond the proposals advanced by Narey in his review of delay in the criminal justice system. In effect, that would deal with uncontested cases of a relatively minor sort. I beg to move.

Lord Meston moved, as an amendment to Amendment No. 212, Amendment No. 212A: Line 32, at end insert— ("(6) The Director, when exercising his powers under this section—

  1. (a) shall act in accordance with the general principle, and
  2. (b) shall not act in any way which would he incompatible with the statutory objective.
established by section 17 of the Courts and Legal Services Act 1990.

(7) The Director shall only exercise his power to confer on members of the staff of the Crown Prosecution Service the powers and rights referred to in subsection (2)(a) and (b)(ii) above if and to the extent that the Crown Prosecution Service has qualification regulations and rules of conduct which have been approved pursuant to Part I (or, in respect of any alterations thereto, Part II) of Schedule 4 to the Courts and Legal Services Act 1990.

(8) For the purposes of this section. Parts I and II of Schedule 4 to the Courts and Legal Services Act 1990 shall apply as if the Crown Prosecution Service were—

  1. (a) in the case of Part I. a body seeking designation as an authorised body; or
  2. (b) in the case of Part q, an authorised body.'"').

The noble Lord said: The Royal Commission report which led to the introduction of the Crown Prosecution Service proposed that it should be set up in such a way as to recognise the importance of independent legal expertise in the decision to prosecute and to make the conduct of the prosecution the responsibility of someone who is legally qualified. That was the basis upon which the Prosecution of Offences Act 1985 was passed, setting up the CPS.

The first inroad into that came with the introduction of Section 7A of the 1985 Act through the Courts and Legal Services Act 1990. That was confined to bail applications, more limited than the new Section 7A which the Government now propose in their amendment. When the 1990 Act was in Committee on 29th January 1990 my noble friend Lord Hutchinson of Lullington argued powerfully against it. He said: Competence, experience and knowledge are all essential".—[Official Report, 29/1/90 col. 14.1

He was supported by the noble Lord, Lord Mishcon, who stated the need for a professional person with professional experience and knowledge. Later in debate the Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, said that it was not the intention to allow unqualified staff to screen cases. He went on to say: Provided that the person handling this kind of application is competent and adequately trained, and provided that the appropriate controls arc there, it is clear that an unqualified person can provide the service that the courts require".—[Official Report, 5/2/90; col. 682.]

Now that it is intended to replace Section 7A with a new version allowing extended powers of delegation, it is, I suggest, even more important that the non-legal staff who may be given power to decide whether to institute or to continue criminal proceedings and to conduct proceedings other than trials in the magistrates' courts should have sufficient skill and experience and recorded, ascertainable training.

The decision whether to commence or to continue criminal proceedings involves considerable responsibility, with implications for defendants, victims and the courts. Uncontested criminal proceedings in the magistrates' courts are not necessarily trivial or straightforward. Even what seems routine to those who work in the courts is not routine to those before the courts, particularly for the first time. The liberty of the individual can be at risk. Decisions by prosecutors can require judgments about what is an acceptable plea and an acceptable basis for plea. The proposed new section gives no indication that there will be independent, professional judgment provided at any stage. There is nothing to indicate any level of legal professional supervision or monitoring. The new Section 7A(3) and (4) merely provides for instructions to be given which may be of general application.

The amendment which I move comes from the Bar Council. But, so as not to upset my noble friend Lord Thomas of Gresford, I emphasise that the concerns underlying it are not the preservation of professional positions. The Association of First Division Civil Servants has also expressed concern, pointing out that Amendment No. 212 has little connection with speeding up the criminal process but is a cost cutting measure. If it is to become reality, safeguards must be built in. Hence Amendment No. 212A seeks to make the exercise of the powers under the new Section 7A referable to the framework for legal services in this country, which provides for qualifications, training and enforceable rules of professional conduct. In other words, at the very least we should have some assurance of the competence, adequate training and appropriate controls mentioned by the then Lord Chancellor in 1990. I beg to move.

Lord Windlesham

It is fitting that these two amendments relate to a clause which raises for the first time the status and functions of the Crown Prosecution Service which are not otherwise covered by the Bill. I regret that there has been much criticism of the CPS in recent years, not all of it by any means well informed and some of it wide of the mark. That led to the establishment of a wide ranging review under a former Lord Justice of Appeal, Sir lain Glidewell, which has yet to report. I am sure I am not alone in the House in paying tribute to the very distinguished public servant, Dame Barbara Mills, who serves as Director of Public Prosecutions.

We should not forget that experienced, fair minded and competent prosecutors, who are not associated with the investigative process prior to charging, are as essential to the proper working of the process of justice as are defence lawyers. At the same time it is reasonable to accept that in the interests of improving efficiency, minimising delays and controlling costs there is an argument for devolving some of the prosecution responsibilities and functions on to non-legally qualified staff. But I ask the Solicitor-General whether it is wise to do this before Glidewell has reported. I accept that there is a legislative window. Hence, presumably, the fact that this complete new clause arrives by way of an amendment to the Bill. But the issues are currently being subjected to careful and independent scrutiny, and I think it is unfortunate to act in advance of hearing what Sir lain Glidewell has to say and the Government's response to whatever recommendations he may make.

The reservations expressed by the Association of First Division Civil Servants have already been referred to by the noble Lord, Lord Meston. The FDA argues that in the clause the Government are going further than the recommendations last year of the Narey report on reducing delay in the criminal justice system, to which the Solicitor-General has already referred. That inquiry, as its title implies, dealt with the issue of delay. Glidewell is looking at the operations, the structure and the working of the Crown Prosecution Service far more widely.

The FDA concerns can be summarised in a list of questions which I wish to put to the Solicitor-General. If he cannot manage to answer all of them without notice off-the-cuff, I should be grateful if he could write to me. Will the designated lay staff be suitably trained and qualified? Is enough time being allowed for this? Will they be members of a professional body external to the CPS? Will they be acting under the direction of a legally qualified crown prosecutor, as recommended by Narey'? Will their responsibilities be restricted to guilty pleas in magistrates' courts? Will they be working at premises separate from police stations; and if not, does the Government consider that there would be a risk of their independent status being prejudiced?

Lord Ackner

As has just been said, it seems to me that the Government are pre-empting what the Glidewell Committee may decide; and more so since the FDA has made representations to that committee. One could well find that when the committee comes to provide its decision it has upheld the very submissions that have been made in this House. That would be most unfortunate.

I suspect that this suggestion is not designed essentially to deal with delay. It seems to me that it is a proposal that could well be directed principally towards saving money. If one sets out to do that in this type of situation, then one is running a serious risk of prejudicing the quality of the justice that results. I know that saving money has been a criticism directed at the CPS—Certainly by the Bar—who have suggested that some of the unfortunate failures in prosecutions (and many have been referred to) have resulted from the CPS not being allowed, I expect, to pay appropriately for the services that it seeks to retain. The CPS has been the subject of considerable criticism and no doubt some of it is not justified. I know that criticism comes not only from the Bar, but also from the circuit Bench, which is much involved in work which is presented to it by the CPS.

I have already mentioned as regards another amendment that there exists a procedure for extending rights of audience. It may be that the Lord Chancellor does not like it, but the fact of the matter is that it exists. There is a statute which says that it is only through recourse to that procedure that rights of audience should be granted. I refer to Section 27 of the Courts and Legal Services Act 1990.

I support the amendment of the noble Lord, Lord Meston, because he seeks to make the necessary provision adaptable to the Director of Public Prosecutions so that an application can be made to the Lord Chancellor's Advisory Committee and the procedure then put in place. I support the amendment and I respectfully resist the amendment proposed by the Government.

Lord Henley

We all share the concerns of the noble Lord, Lord Meston, about the government amendments. If this amendment is to be accepted by the Committee, I hope that the Government will very seriously consider accepting the noble Lord's amendment or something on its lines. As has been made very clear, decisions on whether or not to prosecute are among some of the most difficult that a prosecutor will have to make. They require very difficult assessments of the legal sufficiency of the evidence, its reliability and calibre, together with the application of factors which are relevant to the public interest including the nature of the defendant's record, the effect on the behaviour of the victim and other public considerations.

I also share the concerns expressed by the noble Lord, Lord Meston, my noble friend Lord Windlesham and by the noble and learned Lord, Lord Ackner, as regards the motives behind the government amendments and the reasons for them. Are they merely about cost and administrative convenience? We are also concerned about what training will be offered to those who will be affected by the government amendments, whether that training will be sufficient and what experience of court work will those involved have.

My noble friend Lord Windlesham also made the very valid point that the report commissioned from the former Lord Justice, Sir lain Glidewell, has not yet been produced and therefore the government amendment was possibly premature. I agree with my noble friend on that point, and it seems to be something with which the Government themselves agree. When the noble Lord, Lord Thomas, moved his amendment earlier relating to an extension of rights of audience for solicitors, it was resisted by the noble and learned Lord the Lord Chancellor on the grounds that he was to report to the House fairly soon on an entire review of the question of the rights of audience of solicitors in the courts. Therefore, it was said that it would be premature for the noble Lord, Lord Thomas, to move his amendment.

For much the same reason, in advance of the report of Lord Justice Glidewell, it would also be premature for the Government to press ahead with their Amendment No. 212. As my noble friend Lord Windlesham argued, it may be that the Government will argue that this is a suitable legislative opportunity. I have not noticed the Home Office being slow in coming forward with legislation. I am fairly sure that there will be further legislation next year. If the Government are looking for a suitable opportunity they will have no difficulty in finding one. For that reason I very much hope that, if the noble and learned Lord the Solicitor-General is not prepared to accept the amendment of the noble Lord, Lord Meston, he will consider very seriously whether he ought to press ahead with his amendment at the moment or whether it might be better to leave that to another Bill in another year.

Lord Falconer of Thoroton

My Lords, I am very grateful to Members of the Committee for their various contributions to this significant debate. I hope that I shall be able to put their minds at rest as to what the Government propose. I shall deal first with the point raised by the noble Lord, Lord Meston. He referred to the Philips Royal Commission which emphasised the need for lawyers to consider whether or not people should be prosecuted. That was said, but it also considered whether in the less complicated guilty plea it would be appropriate for lay presenters to be used. The report said that there had been wide consultation on the issue and found no objection to the point in principle, but that the problem was a practical one, it being that in the magistrates' court there was not a simple, uncontested case list. Therefore, there was not much point in using lay presenters because one could never isolate a list in the court that they could deal with. In his proposals Narey seeks to deal with that by proposing that, in order to speed up justice, there should be co-ordination with the magistrates' courts and the police whereby one can identify guilty pleas in moderately straightforward cases. They would be dealt with in a very short time on the basis of an abbreviated file, which could be reviewed by a lay presenter. If the appropriate co-operation could be obtained then the objections that Philips identified, which were practical and not of principle, could be overcome. I share, as do the Government and Narey, the belief that if these practical difficulties can be overcome then, subject to appropriate safeguards, there is no reason why one should not have lay presenters dealing with that kind of case. This is not the thin end of the wedge, but a sensible use of resources.

The noble Lord, Lord Meston, went on to ask—

Lord Belstead

I have listened carefully to what the noble and learned Lord has been saying, but where is that repeated on the face of the Bill?

Lord Falconer of Thoroton

It is not repeated on the face of the Bill because the Bill gives the DPP an enabling power to designate people to be lay presenters in the circumstances that I have outlined. It would be genuinely difficult to seek to define, within the terms of the section, something which is sufficiently precise to give effect to what I have just said. But I have set out the intention. We shall consider whether it can be made more perfect in terms of the draft amendment, but that is the intention. I hope I have made that clear. There is no sinister purpose or hidden agenda behind this, but to give effect to Narey whose report, as the noble Lord knows, has been published.

Lord Henley

Does the noble and learned Lord imply from that answer to my noble friend that he would consider amendments to the new clause that the Government are adding to the Bill, but might limit the powers of the director in terms of whom he could or could not designate?

Lord Falconer of Thoroton

Although I cannot give any guarantees or assurances, we shall consider any proposed amendment and its purpose.

It may be helpful to answer the point raised by the noble Lord, Lord Meston, by going through the questions asked by the noble Lord, Lord Windlesham, because they broadly overlap. Will the staff be trained? Yes, they will be. No staff member will be involved who has not had appropriate training. Will they be qualified? Not in the sense of being legally qualified, but they will be used only once they have had appropriate training. However, there will be no formal qualification of any sort. Will the staff belong to any external professional organisation? There is no requirement at present, but we shall consider whether or not there should be some external force. Will they be acting under supervision? Yes, they will—the supervision of the chief Crown prosecutor. Will they deal with guilty pleas only? Yes, they will. Indeed, the wording of Amendment No. 212 specifically restricts their activities to guilty pleas. Will they be working at premises separate from police stations? The answer to that is, "Not completely necessarily" because the Narey proposals specifically involve possible arrangements whereby presenters, both qualified and unqualified, could be present at police stations in order to assist the process. If a lay member of staff is at a police station, he will always work alongside a chief Crown prosecutor. I emphasise the Government's intention that the presenters should not in any way compromise the independence of the Crown Prosecution Service—that is, independence inter alia from the police.

I genuinely hope that my answers deal with all of the understandable anxieties that noble Lords have mentioned in relation to this proposal. I should add that the system will be piloted before it is rolled out throughout the country, so there will be opportunities to see how it works and what changes or amendments need to be made.

The noble Lord, Lord Windlesham, asked why we do not wait until Sir lain Glidewell has produced his report on the Crown Prosecution Service. The answer is that in July 1997 my right honourable friend the Home Secretary indicated in another place that we were accepting Narey's recommendations in his report on delay. One of those recommendations was the use of lay presenters. We need to use lay presenters to give effect to the Narey proposals because that package of proposals includes, for example, the indictable-only offences going straight to the Crown Court. If one cannot use lay presenters on the simple cases, there will not be the resources available within the CPS to do the other things proposed by Narey in relation to dealing with delay. That is why we accepted those proposals in July 1997 and that is why we have not waited until Sir Iain Glidewell has reported. In fact, Sir Iain's review team is intending to report towards the end of next month. His report will be available before the Bill becomes law, so if anything in that report requires us to look again we shall have the time to do so.

Finally, I come to the point that underlay both the intervention of the noble and learned Lord, Lord Ackner, and the amendment tabled by the noble Lord, Lord Meston—the question of why we do not use the existing 1990 Act procedure which provides all the protections. My noble and learned friend the Lord Chancellor indicated how that works. It grinds extremely slowly and it would literally take years before any progress was made. In the Government's view, there are genuine and legitimate concerns about the speed with which criminal justice moves in this country. Resolving those legitimate concerns should not have to await the extremely cumbersome process of the 1990 Act. That is why we do not accede to the amendment proposed by the noble Lord, Lord Meston. In the circumstances, I respectfully ask the Committee to accept my amendment and the noble Lord. Lord Meston, to withdraw his amendment.

5.15 p.m.

Lord Belstead

Before the noble and learned Lord sits down, I wonder whether I might put a suggestion to the Government. As far as I am concerned, the noble and learned Lord the Solicitor-General has been very informative and persuasive, but what he has said does not appear on the face of the government amendment. If it is impossible for that to happen and impossible also for the Government to accept the amendment proposed by the noble Lord, Lord Meston, have the Government considered the desirability of making the amendment subject to order by affirmative or even, if the Government prefer, by negative resolution? That would be a way of tackling some of the criticisms that have been made and it would not require further primary legislation.

Lord Falconer of Thoroton

The way in which the amendment works is to give the Director of Public Prosecutions the power to designate certain people, subject to exceptions, to have the power to exercise all of the powers of the Crown prosecutors. I do not think that it would be appropriate to exercise that power by either an affirmative or a negative order. Amendment No. 212 states: The Director may designate, for the purposes of this section, members of the staff of the Crown Prosecution Service who are not Crown Prosecutors". That would be much more appropriately dealt with as a managerial matter by the DPP rather than by a negative or affirmative order. Therefore, although I am grateful for that suggestion, I do not think that it is necessarily an appropriate way of dealing with the problem.

Lord Belstead

I am guilty of not making myself clear. I am suggesting that as the scheme is to be trialled—a piece of information that we have not heard previously—the trials could take place and it could then be possible to bring the provisions of the amendment into force, by order, subject to either the affirmative or the negative resolution.

Lord Falconer of Thoroton

We could not pilot it without the legislation. We would need the power to be able to use lay presenters. The amendment has been tabled precisely because the First Division Association brought a court case in 1989 which effectively prevented the DPP from designating lay presenters to review and present cases. In the light of that divisional court case, it is plain that we need legislation to be able to move forward even in relation to the piloting. I do not think that what the noble Lord is suggesting is possible as a way forward.

Lord Ackner

I wonder whether the noble and learned Lord can help me with one point. Narey's recommendation was as follows: I recommend that the Prosecution of Offences Act be amended to grant the DPP the necessary powers to confer on lay staff the powers of a Crown Prosecutor,"— I emphasise the next words— subject at all times to direction by legally qualified staff". Why was not that included on the face of the Bill?

Lord Falconer of Thoroton

Because the legislative authority that is required is to give the lay presenters the power to act as Crown prosecutors. That is what the DPP cannot do at the moment because of the FDA case in 1989. As a matter of legislative drafting, that is what we took to be all that was required in relation to the Bill. That is the answer.

Lord Ackner

I do not think that the noble and learned Lord has answered my question. Why was there not included on the face of the Bill the proviso that Narey provided, that those powers were, subject at all times to direction by legally qualified staff'?

Lord Falconer of Thoroton

Because the only authority that is required is to give the DPP the power to designate. With respect to the noble and learned Lord, I think that that point is dealt with in what will be new Section 7A(3)—perhaps I should have referred the noble and learned Lord to this earlier—which states: A person so designated shall exercise any such powers subject to instructions given to him by the Director". That may well meet the point. It must be subject to such instructions as are given to him by the director. That will include appropriate instructions in relation to who supervises him and what kinds of cases he can deal with.

Lord Windlesham

The noble and learned Lord will have sensed apprehension in the Committee about this late proposal. The Government propose the insertion of a completely new clause at Committee stage. The noble and learned Lord informed the Committee that the report by Sir Lain Glidewell was due shortly. I ask the noble and learned Lord whether he will consult the Home Office and ask that department to be more precise as to when it expects to hear from Sir lain Glidewell. Will he urge the department to process the report internally very speedily so that it does not get delayed in the Home Office—something that has occurred from time to time in the past—and that the findings of the report on this aspect are made available to the Home Office Minister who takes this Bill through Standing Committee in the Commons?

Lord Falconer of Thoroton

The Glidewell team is to report to the Law Officers, not the Home Office. I am sure that the noble Lord, Lord Windlesham, is far more aware than I am that reports that go to the Home Office often become lost; the Law Officers' Department has so few reports that they are never lost. We are literally on the edge of our seats awaiting Sir lain Glidewell's report. I can give the noble Lord an assurance that the moment the final report of Sir lain Glidewell is available we will consider all of it with immense care and expedition. If and in so far as there are any parts of it that relate to this particular provision as soon as reasonably practicable we shall bring them to the attention of the Minister who is to deal with the matter in the Commons so that the other place has the benefit of any comments that Sir lain may have on this aspect.

I have noted the concerns expressed by the Committee in relation to this matter. It may be that the most appropriate course is to ensure that the guidelines to be applied in relation to the appointment of lay presenters are published at a stage when they can be considered either in this place or in another place before the Bill finally becomes an Act. It is to be hoped that that will lay to rest many of the concerns that have been raised in the course of this very useful debate.

Lord Thomas of Gresford

I have been waiting to hear from the noble and learned Lord why delay will be cured by the proposals to bring in lay presenters. Until quite recently there was a useful way of dealing with the backlog of Crown Prosecution Service cases whereby young barristers were given a day's list for a fixed fee. They cut their teeth on a variety of cases. The advantage of such a method of dealing with delay was that, first, it got rid of the backlog; secondly, it gave very valuable experience to young members of the Bar; and, thirdly, it maintained the quality of independence from the investigation authorities that is so very important.

What troubles me about the present proposal is that it has nothing to do with delay; it is to do with cost cutting. It is cheaper to have lay presenters do this work than to employ young members of the Bar, as happened in the past. These proposals therefore appear to be a return to the old days when prosecution was in the hands of the police inspector and the decision making of the prosecutor, the local policeman, was always subject to query. The introduction of lay prosecutors in a similar way closely attached to police stations, as they will be in many instances, is a throwback to the past. I thought that we had got away from that, thus ensuring the independence of the prosecutor from the investigation. This is not in any sense a plea for restrictive practices by the legal profession as a whole; it is to do with the quality of decision-making. It is worth paying for the quality of decision making by prosecutors to ensure that justice is done in cases that can affect so many members of the public whose confidence in the criminal justice system must be maintained.

Lord Falconer of Thoroton

I hope that nothing I have said has in any way denigrated the importance of decisions about prosecutions and the importance of proper presentation of cases even where there are relatively minor charges because they can affect the reputation and liberty of individuals.

I should like to deal with the three points just raised by the noble Lord, Lord Thomas of Gresford. How does it affect delay? As I thought I had explained earlier, the Government accepted the Narey proposals which involved a package of measures. It would not be possible to do the other things proposed by Narey—for example, that indictment-only offences should go to the Crown Court—without greater flexibility in the resources available to the CPS thereby using lay presenters to do the more simple guilty pleas so that lawyers can do the cases that require the attention of a qualified lawyer.

Secondly, the noble Lord suggested that this was a throwback to the past and independence might be threatened. We believe that that is not so. We are concerned here with straightforward guilty pleas that will be reviewed and presented by lay presenters under the direction of a Crown prosecutor only after suitable training. We do not believe that that significantly threatens the quality of justice in those cases.

Thirdly, the noble Lord, Lord Thomas of Gresford, like all barristers, referred to the halcyon days of his youth when at the last moment barristers were provided with a long list of simple cases in a magistrates' court. He omitted to point out that the trouble with such a long list of cases was that there was no proper opportunity to consider the detail of all those cases. Although I do not believe that the quality of presentation was excellent, I am sure that that was necessarily a handmaiden of justice in those circumstances. For all those reasons, and with the greatest respect, I reject the criticisms of the proposals that have been made by the noble Lord, Lord Thomas of Gresford.

Lord Meston

I am particularly grateful to the noble Lord, Lord Windlesham, for suggesting that it would have been better to await the completion of the work by Sir Lain Glidewell, and also for articulating the concerns that underlay my amendment to the Government's amendment. I take some comfort from the fact that it appears the Law Officers are likely to receive, at least in draft, the conclusions of Sir lain Glidewell's work before the Bill completes its passage through Parliament, if not its passage through this House, and that at least some consideration will be given to a further amendment of the proposed new clause.

I am also grateful to the noble and learned Lord, Lord Ackner, for his unqualified statement of the risks of cutting costs in this particularly difficult area. I received some reassurance from the noble and learned Lord the Solicitor-General, who indicated that in practice there would be safeguards, and clearly this is only an enabling measure. But the fact that the DPP needs authority by statute to do what cannot be done at the moment does not mean that appropriate safeguards cannot be provided in some way on the face of the Bill.

The noble and learned Lord the Solicitor-General referred to the intended new Section 7A(3), which I referred to in my opening remarks. I do not find it very comforting. I am not wedded to the wording of my amendment to the Government amendment or to the 1990 Act analogy which, in any event, is to be reviewed. It may well be that a less sophisticated, more straightforward amendment is called for and I reserve my position at Report stage. Meanwhile, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

On Question, Amendment No. 212 agreed to.

5.30 p.m.

Clause 44 [Bail: increased powers to require security or impose conditions.]

Lord Henley moved Amendment No. 213: Page 34, line 10, leave out subsection (1).

The noble Lord said: I had some problems this morning trying to remember why I put down this amendment. Clause 44(1) refers to the Bail Act. When one considers that Act, the subsection appears not so soft as I originally thought because it deletes the words: If it appears that he is unlikely to remain in Great Britain until the time appointed for him to surrender to custody". That leaves Section 3(5) of the Act reading, he may be required, before release on bail, to give security for his surrender to custody".

I want an explanation from the Government as to what precisely they are doing. Are they merely extending the ability to require security to everyone rather than just those who are unlikely to remain in Great Britain until the time appointed? In other words, is the use of that requirement to give security becoming more general? Or have I misunderstood it?

I would be grateful for an explanation from the noble Lord because it might assist me to work out why I put down this amendment and whether it serves any purpose. I beg to move.

Lord Williams of Mostyn

This is an amendment of great utility because it gives me the opportunity of confirming what the noble Lord has decided in his own mind. He is quite right. At the moment the courts have very limited powers to require a security—that is a sum of money or an item of value—against a defendant's surrender to custody in due time. The noble Lord is also right about those powers being limited to the belief of the court that the person granted bail is unlikely to remain in Great Britain. We want to extend that. It is anomalous that the powers are so limited. It is notorious that many cases are over-long delayed because bailed defendants simply do not bother to turn up on the due date. It is a constant feature and blemish, not least in magistrates' courts.

We want to remove the limitation to give the court the opportunity to exercise its discretion. The option available at the moment is limited in the way I have mentioned, as identified by the noble Lord, and this is a useful tool to ensure that justice runs smoothly, expeditiously and without delay. It is something that is within the discretion of the court; it is not an obligation on the court to insist on security in every case.

On the basis of that explanation, I hope that the noble Lord is content.

Lord Henley

I am absolutely content with the explanation given by the noble Lord. I apologise if I originally thought that the noble Lord and new Labour were going soft on these matters. I am grateful for the confirmation that we still have a very firm line emerging from head office. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Thomas of Gresford moved Amendment No. 214: Page 34, line 14, leave out subsection (2).

The noble Lord said: The purpose of this amendment is to give the noble Lord, Lord Williams of Mostyn, another opportunity to explain what he has in mind by adding to Section 3(6) of the Bail Act a condition that the person bailed should attend for an interview with an authorised advocate or authorised litigator. Whether this is designed to drum up business for the legal profession I am not sure. It is extraordinary that it should be made a condition of bail that a person should attend to see his solicitor or counsel. I simply ask the noble Lord to explain. I beg to move.

Viscount Tenby

I was the only speaker during Second Reading to express reservations about an accused being obliged to seek legal advice as a condition of bail. I intimated that such a condition might impair the future relationship between an accused and his legal adviser.

Memory can play tricks, especially with one of advanced years. I thought that the noble and learned Lord, the Solicitor-General, with his usual courteousness and incisiveness, had calmed my fears but on returning to the Official Report today I find that that is not so and that he kept his own counsel on the point, probably quite rightly because in the intervening period I have come to think that my earlier fears were unfounded. I am sure that the Government team will not infer from this that lack of response on any point at Second Reading will always happily result in the matter going away and not being subsequently raised.

My change of heart lies principally in the fact that the Bill's preoccupation with reducing the time between the commission of an offence and the sentence is absolutely right. Provided that justice is not compromised in any way, relatively minor points should be subservient to that objective. Knowledge of a failure to secure legal advice would come not from a defence solicitor—who would not have been appointed at the time—but from inquiries by police or the justices' clerk. In such circumstances it is difficult to see how such a development would blight the future relationship between the defence and the client.

For that reason I do not support the amendment which has been hesitantly put by the noble Lord, Lord Thomas of Gresford. I apologise for what might appear to be a volte face between Second Reading and Committee.

Lord Williams of Mostyn

The noble Viscount is right; he did raise this matter. We gave it consideration bearing in mind his experience and expertise.

The purpose of the provision is plain. Again, it is notorious that some defendants simply do not take legal advice, have an adjournment on bail and come to the next hearing and say, "I haven't been to see my solicitor." That is a device that everyone who has been to a magistrates' court is familiar with. I recognise that it is less of a feature in the Crown Court for different and obvious reasons.

What we are saying is that in some circumstances the charge against a defendant requires that he should be legally represented or at least legally advised, normally, of course, at public expense, and quite rightly too in appropriate cases. But a defendant often pays no attention to the fact that he also has obligations. If the state has an obligation to provide him with legal advice or legal representation, he has a corresponding obligation to take legal advice.

This is a perfectly simple scheme saying to a defendant that the court may say, "A condition of your bail is that you take legal advice and have legal representation before the next hearing, which will be in 28 days." That will deal with an obvious, well-known blemish on the system which leads to endless, unjustified delays.

As the noble Viscount pointed out, it is true that, if there is a failure, thereafter the defendant will be required to indicate when his bail term expires whether or not he has seen a solicitor. There is no sinister plot to enrich barristers, and certainly not any plot to enrich solicitors. It is just a device of practical utility which should commend itself, and I, for one, am heartened that the noble Viscount, with all his experience, sees the virtue of it. I hope that that explanation will satisfy the noble Lord, Lord Thomas of Gresford.

Lord Thomas of Gresford

I am grateful to the Minister for that explanation. It is the follow-through that concerns me; that is, if a person fails to see his solicitor or counsel, presumably his bail will be withdrawn and he will find himself locked up. I would find that an unhappy position in which to be, especially if one were then required to visit a disconsolate client who had just, perhaps through illness or for some other reason, failed to take the legal advice that was offered to him. I do not wish to press the amendment, and with that caveat I seek leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 44 agreed to.

Clause 45 [Use of live television links at preliminary hearings]:

The Earl of Mar and Kellie moved Amendment No. 215: Page 34, line 28, after ("court insert (", and with his legal representative.").

The noble Earl said: Amendments Nos. 215 and 216 seek to improve and clarify what is intended in the Bill. The use of live television links at preliminary hearings is a sensible administrative measure which, among other things, eliminates the often complicated procedure of making remand prisoners available to the court, usually so that they can be remanded for a further period. As the court appearance may take moments, the effort involved in making them available is disproportionate.

The two amendments clarify what the prisoner may do in connection with a television-linked court appearance. He should clearly have some discussions with his defence agent, and he should be given the chance to consent to the televised process. There seems to be some tension in subsection (1) between, after hearing representations from the parties", and, direct that the accused shall be treated as being present".

I wish to find out whether the court can make a direction to use the televised link only if both parties, and not just one of them, agree to its use. I beg to move.

Lord Falconer of Thoroton

As the noble Earl pointed out, the purpose of Clause 45 is to reduce the delay and the associated costs caused by defendants in custody travelling back and forth between prison and court for what are preliminary hearings often lasting only a few minutes. By reducing the number of journeys between prisons and courts the measure is also expected to contribute to greater security. Indeed, it is an outstanding recommendation of the Learmont Report.

The effect of the amendments would be to give the defendant a veto on whether or not the television link is used. That is not the intention of the present draft. So the answer to the noble Earl's question as to whether the consent of both parties—that is, prosecution and defence—is required that it is not.

I should make clear that it is the Government's intention, before introducing the measure more widely, to pilot the arrangements. The pilots will be designed to ensure that defendants are not disadvantaged by the new procedure. Early trials of the TV-linked equipment have satisfied us that the necessary technology is available and good enough to allow all parties to participate fully in the hearings. If, despite that, defendants were allowed to veto such arrangements for no good reason, the real gains to be made for the court and prison services would be seriously undermined.

The noble Earl spoke also to Amendment No. 216. It has always been the intention that the defendant would be able to communicate with all relevant parties to the proceedings, including his or her legal representatives. We recognise that advocates often use preliminary hearings for further discussions with their clients, and that those need to be confidential. Although it is not directly relevant to the measure itself, the pilot projects will be looking at ways to allow such discussions to take place. One possibility is the availability of a confidential telephone line. Obviously, for open questions during the hearing itself the advocate will be able to use the TV link, along with any other party to the proceedings.

It is important to remember that the court retains a discretion as to whether to allow the use of the television link. If there is a good reason for the defendant to be present physically, the court can hear representations from the defendant or his legal representative and can then exercise that discretion and require the defendant to be produced from custody. I hope that my explanation answers the noble Earl's questions, and allays his concerns, and that in those circumstances he will feel able to withdraw the amendment.

5.45 p.m.

The Earl of Mar and. Kellie

I am grateful to the Solicitor-General for that answer. I am certain that those who encouraged me to table the amendments will be interested in what he had to say. I do not intend to press the amendment. The pilot projects will produce some interesting results. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 216 not moved.]

Clause 45 agreed to.

Clause 46 [Sentences extended for licence purposes]

Lord Windlesham moved Amendment No. 217: Page 35, line 12, leave out ("custodial").

The noble Lord said: Amendments Nos. 217 and 218 are the first amendments which refer to Part IV of the Bill. In dealing with offenders, the side note to Clause 46 refers to: Sentences extended for licence purposes". The two amendments may appear to be somewhat arcane and technical. They call for some explanation, which I shall attempt to give as clearly as possible.

The purpose is to avoid the confusion that can result from using the same description to refer to what are two essentially different types of sentence. Until abolished by the Criminal Justice Act 1991, the courts had a power to impose a sentence of imprisonment longer than the maximum prescribed for a particular offence if certain conditions were satisfied.

The provision fell into the category of what had seemed to some in Parliament at the time of its original enactment—although not to many in the judiciary—to be a good idea, but it was little used in practice. By 1991 it had become virtually obsolete, and the provision was repealed in that year.

Now the same description has been resurrected in Clause 46(2) to refer, not to an extended period in prison, but to an extension in the length of time a person convicted of a sexual or violent offence would be subject to supervision on licence after release from custody.

The reasoning, as set out in what I think we must all regard as the complicated drafting of Clause 46, is that the custodial term represents the penal element in the sentence—that is, the proportionate punishment deserved by the circumstances of the crime—whereas the extended period spent on licence in the community after release, and subject to recall to prison, is intended to prevent the commission of further offences, and, in the wording of the clause, to secure the offender's rehabilitation. One might note that it is good to see that word coming back into criminal justice statutes.

The purpose of my amendments is to clarify the distinction by deleting the word "custodial" in line 12 of Clause 46(2) and substituting the word "duration" for the word "term" in the same line. It may not have escaped the notice of some of your Lordships—certainly, I hope those on the Front Bench—that the amendments are supported by the noble and learned Lord, Lord Bingham of Cornhill. Since his public duties do not enable the Lord Chief Justice to be present in person, and in order to avoid the risk of misrepresenting his views, I shall quote his words when writing to indicate his support for the amendments. He stated: The point to he made is that the second component of the sentence described in Clause 2(b) as the 'extension period' should not be described as a 'custodial' sentence because it is not a period spent in custody, unless of course the offender breaks the terms of his licence and is recalled. For the same reason the expression 'duration' is preferable to 'term', again making it plain that during 'the extension period' the offender is not in custody".

It will be seen that the amendments do not strike at the intention of the Government's policy, nor do they alter in any way the manner of its implementation. They are solely designed to clarify the wording of a new law which the courts, the Probation Service, the Parole Board and others will have to apply.

Ministers on the Front Bench have invariably been patient and courteous in their responses to more than 200 amendments. But, government amendments apart, few or possibly none have been accepted as they stand. This is the time to show what they can do, even if the brief is marked "resist". Often, parliamentary draftsmen do not have the most open minds, and I stress that this is purely a matter of drafting. Although there is an important distinction behind the amendment, it is a drafting amendment. Bearing in mind the fact that the noble and learned Lord the Lord Chief Justice has given his support in the words which I have quoted, and the respect which we understand is accorded by the Government Front Bench to the views of the higher judiciary, I hope that the amendments will be accepted. I beg to move.

Lord Ackner

This application for leave to amend, so to speak, should be an undefended application. The opening words of the clause make the position. so admirably explained by the noble Lord, perfectly clear. It states: This section applies where a court which proposes to impose a custodial sentence for a sexual or violent offence considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation". Therefore, right from the outset the clause is contemplating extending the licence period, not the custodial period. From that, all else follows.

Lord Mackay of Drumadoon

I offer a measure of support to the amendment and perhaps a face-saving way out of the dilemma which will undoubtedly face the Minister who is to reply. Clause 70 deals with the proposed new Section 210A of the Criminal Procedure (Scotland) Act 1995, which seeks to introduce a similar provision into the law of Scotland. The approach followed by the draftsman in that clause goes a long way to meeting what is sought by my noble friend and supported by the noble and learned Lord, Lord Ackner. In particular, it makes it clear that the custodial description is applied only to the term of imprisonment and not to the whole sentence.

It may well be that further reflection by the draftsman, having regard to what his colleague has done in drafting Clause 70, may meet the point.

Lord Belstead

I support the amendment and give the warmest welcome to Clause 46 which provides for extended sentences for licence purposes. It increases the protection of the public as a result of increased supervision and increases the period of time during which a prisoner on release licence under Clause 46 will be liable to recall. At the same time, it will also assist with the rehabilitation of offenders and so, it is to be hoped, prevent reoffending. With respect, and I hope not appearing to be presumptuous, I warmly congratulate Ministers opposite and the Secretary of State on producing Clause 46.

However, I fall into the same category as my noble friend Lord Windlesham and the noble and learned Lord, Lord Ackner, in believing that the wording is not entirely clear. The Committee stage is not about taking the Bill away having changed nothing. The brownie points are always for Ministers who listen, as do these Ministers, and take action where necessary. I hope that they believe that this is an appropriate occasion to do so.

Lord Falconer of Thoroton

Although the noble Lord, Lord Windlesham, was so seductive in moving the amendments, referring to his distinguished supporter the noble and learned Lord, Lord Bingham, and although the noble Lord, Lord Belstead, wished to give us an opportunity to win brownie points, my instructions say "resist".

With great respect to the noble Lord, Lord Windlesham, and the noble and learned Lord, Lord Ackner, I believe that as a matter of law it is correct to resist. Perhaps before explaining why, it is worth emphasising that there is no disagreement between any of us that the purpose and effect of this section is correct. It is simply a matter of which descriptive words are used to achieve that end.

As the noble Lord, Lord Windlesham, pointed out, the Bill states: that is to say, a custodial sentence the term of which is equal to the aggregate of', what is described as "the custodial term" and a further period described as "the extension period". The noble Lord wishes the provision to read: that is to say, a sentence the duration of which is equal to the custodial term and the extension period". The clause currently describes an extended sentence as "a custodial sentence", the term of which is equal to a custodial term of a certain length, plus an extension period. I can see why the noble Lord suggests removing the word "custodial". An offender with an extended sentence would normally spend the greater proportion of that sentence in the community on licence rather than in prison. As the noble Lord said, he thinks that it is inapt to refer to that as a custodial sentence and believes it to be better to replace the word "term" with the word "duration".

However, the clause is correct to refer to an extended licence period as part of a custodial sentence. That is because during the extended licence period an offender is subject to recall to prison, in exactly the same way as one released on licence as part of any other custodial sentence under the Criminal Justice Act 1991. The new Section 44(3) and (4) of the 1991 Act, inserted by Clause 47, makes it clear that the licence may be revoked during the extension period. So the extended sentence is a single custodial sentence to which Part II of the 1991 Act applies.

In other words, you have a sentence which is one custodial sentence. You can be recalled during the licence period, which is the extension period. That is done by reference to the 1991 Act. Such a sentence under that Act would be a custodial sentence so described in that Act. That is why the terms are used in the way that they are in Clause 46 of the Bill.

Also, by virtue of Clause 69(5), the phrase "custodial sentence" takes its definition from Section 31(1) of the 1991 Act. It thus includes both a sentence of imprisonment and the various analogous disposals available in respect of offenders under 21, such as detention in a young offenders institution or under Section 53 of the Children and Young Persons Act 1933.

I therefore believe that the description of an extended sentence in Clause 46 is correct—namely, as a custodial sentence. It is right to refer to it as a "term" rather than "duration". To suggest that an extended sentence is not a custodial sentence might be misleading and create uncertainty because of its relationship with the 1991 Act. Therefore, despite the seductive and persuasive way in which the amendment was advanced, I hope that the noble Lord will agree to withdraw it.

6 p.m.

Lord Windlesham

I shall study that explanation with great care. I still find it difficult to understand how the description "custodial sentence" can be used to cover a sentence, the extended part of which is not served in custody. It would seem simpler and more comprehensible to say that it is a sentence and part of it is custodial and part of it is non-custodial. In that case, why cannot it be described as a sentence of the court rather than as a custodial sentence?

The noble and learned Lord has his authority on a matter of law in the shape of the parliamentary draftsmen. I have mine in the shape of the most senior judge in England and Wales who will have to implement the provisions. Therefore, I should like to refer back to my legal source while the noble and learned Lord refers back to his.

Lord Ackner

Before the amendment is withdrawn, perhaps I may ask the Solicitor-General to explain to us exactly what the judge should say to a defendant in a case to which this applies. I offer my suggestion and the noble and learned Lord can deal with it. I assume that the judge will say to the accused, "I am imposing upon you a custodial sentence of 10 years but that is not the end of the matter. For the protection of the public, I am going also to impose upon you a licence which will oblige you, during the period of five years following your release, to be … ", and then he will deal with the matter of good behaviour and so on. Therefore, the only period of custody to which the judge will refer is the initial 10 years.

Lord Falconer of Thoroton

It would be presumptuous of me to say how the judge will sentence when it comes to a Clause 46 sentence. I simply draw attention to the fact that it is a custodial sentence with two parts to it: a custodial term and an extension period. I am sure that the judges will be able to explain that in appropriate language.

Lord Windlesham

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 218 not moved.]

On Question, Whether Clause 46 shall stand part of the Bill?

Lord Belstead

As the noble and learned Lord the Solicitor-General said, during the extension period under Clause 46 there will be the ability to recall those who are under extended supervision. Therefore, I had a quick look at the financial effects of the Bill and I see that it is said that although Parts IV and V will have increased financial effects in relation to the Probation Service and electronic monitoring costs, additional costs to the Parole Board and the police as a result of recalling to prison those who have breached their licence conditions are expected to be minimal. I do not know that I would disagree fundamentally with those words, but there will be some increased costs.

But then, looking at the Marshalled List, I looked over the page to page 6 and see that Amendment No. 218A attempts to abolish Section 2(5) of the Crime (Sentences) Act 1997 which is to do with mandatory life sentences for second serious offences of wounding or causing grievous bodily harm. Of course, those life sentences will be subject to the Parole Board deciding, after the tariff has expired, when those particular offenders will be allowed out. I know from a previous existence, when I was connected with the Parole Board—and I must declare that interest—that extra resources have never been considered for that work by the Home Office.

Therefore, I beg Ministers not to consider that the Parole Board can continue on and on carrying additional responsibilities with no extra resources. Section 2(5) of the Crime (Sentences) Act 1997 will cost the Parole Board additional resources and Clause 46 will cost something in terms of extra recalls. I merely rise to draw attention to what is a small but significant point.

Lord Williams of Mostyn

I am grateful for the way in which those observations were made. I undertake to the noble Lord that I shall make a particular point of transmitting those concerns to the Secretary of State.

Lord Belstead

I am most grateful to the noble Lord.

Clause 46 agreed to.

Clause 47 [Effect of extended sentences]

Baroness David moved Amendment No. 218ZA: Page 36, line 12, at end insert— ("(4A) Where a prisoner to whom this section applies is recalled to prison, he may make representations in writing at annual intervals with respect to his continued detention. (4B) The Secretary of State shall refer to the Parole Board the case of a person who makes representations under subsection (4A) above.").

The noble Baroness said: This is a probing amendment designed to establish the Government's intention concerning the review of cases of offenders recalled from the extended supervision period which Clause 46 provides.

These extension periods could be up to 10 years in the case of sexual offences and five years in the case of violent offences. We support this measure, but in view of the serious implications for individual liberty of recall for such extended periods, we consider that such offenders should have the right to request a review of their continued detention at regular intervals. I beg to move.

Lord Williams of Mostyn

This is a matter of some importance and I shall deal with it at greater length than would otherwise be the case because I recognise the noble Baroness's underlying concern. This amendment would give those who have been recalled on extended sentence licence an opportunity to make written representations on an annual basis. We agree that offenders who are made subject to extended periods of supervision on licence should not find themselves recalled to prison for what might be a long period of time—as the noble Baroness said—without any recourse to challenge their continued detention. We believe that the existing provisions provide adequate opportunities for representations to be made. I can assure the Committee that an offender recalled while on an extended period of supervision is to be treated in the same way as any other recalled licensee, and that includes the right to make written representations about detention and the right to apply for release on parole.

Clause 47 inserts a new Section 44 in the Criminal Justice Act 1991 which makes provision for extended sentences. It will mean that the same period of imprisonment will be available, followed by a considerably longer period of post-release supervision. The provisions as they already stand provide for this. All offenders on licence who are recalled to prison in the circumstances specified by the noble Baroness under Section 39(1) or (2) of the 1991 Act, which will include those recalled during an extended period of supervision, are entitled to make written representations with respect to their recall, and the Secretary of State has a duty to refer such representations to the Parole Board. This is provided for by subsections (3) and (4) of Section 39. In addition, subsection (3) provides that an offender who is returned to prison shall be informed of the reasons for his recall and of his right to make representations. All written representations must be referred to the Parole Board for consideration, and Section 39(5) provides that if the Parole Board recommends that the offender should be released immediately, the Secretary of State shall give effect to that recommendation.

Section 39 does not provide for such representations to be made on an annual basis. However, under Section 35(1) of the 1991 Act, all long-term prisoners are entitled to apply for release on parole once the half-way point in their sentence has been reached. Offenders who have an extended sentence of four years or more are to be treated as long-term prisoners, by virtue of subsection (7)(b) of new Section 44. For the purposes of applying for release on parole under Section 35(1), the half-way point of their sentence is taken to be the half-way point of the period served in custody, the custodial term. As any recall to prison will always be after that half-way point, because that is the earliest point at which the offender may be released in the first place, this means that an offender recalled while on an extended licence will be eligible to apply for release on parole at any point during the extension period. If an application is turned down by the Parole Board, the offender may apply again the following year. Therefore offenders given an extended sentence will be in exactly the same position as those who are recalled to prison while serving a normal sentence. I have taken a little time to explain the position as I recognise the legitimate concern that lay behind the probing amendment.

6.15 p.m.

Baroness David

I thank my noble friend the Minister for his full and careful response. It obviously needs some study and I should like to talk about it with those who were anxious for me to table this amendment, and decide whether it will be necessary to return at the next stage of the Bill. I believe that it will probably not be necessary. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 47 agreed to.

Lord Windlesham moved Amendment No. 218A: After Clause 47, insert the following new clause—


(". In section 2(5) of the Crime (Sentences) Act 1997, paragraph (d) shall cease to have effect.").

The noble Lord said: This amendment, which has cross-party support, relates to one of the most outdated and widely criticised provisions of the criminal law and, not for the first time, questions its appropriateness as a basis for triggering mandatory sentences of life imprisonment under the Crime (Sentences) Act 1997. Like the noble Lord, Lord Williams of Mostyn, who has just spoken, I wish to speak for a little while—unlike the admirable brevity of the noble Baroness—because the introduction of mandatory sentences into our criminal law for the first time in modern times other than for homicide offences is a fundamental change and one of profound importance.

As a preliminary comment, it is generally agreed that reform of the 137 year-old statute defining offences against the person, passed in 1861, is long overdue. It has been criticised by the Law Commission for its "antique language", its "irrational arrangement" and the likelihood that a law which is muddled, irrational and unclear—those are the words of the Law Commission—is almost certain to produce injustice. Those sentiments have been echoed by the Home Secretary in his foreword to a consultation paper published as recently as two weeks ago. In that document the Government accepted the case for reforming the Offences Against the Person Act 1861, and published a draft Bill together with the consultation paper.

This recent development adds force to the argument which has been rehearsed previously that it is no longer appropriate or tenable to include the Section 18 offences of wounding, or of causing grievous bodily harm, with intent, in the list of offences in the 1997 Act which automatically attract a sentence of life imprisonment on second conviction. I remind your Lordships that there are eight offences, or categories of offence, which trigger the mandatory life sentence on second conviction. I refer to offences of violence or sexual offences. However, we are talking about just one of that long list.

This is not a novel argument, nor should it have any party political overtones. If my amendment sounds familiar to the Committee, it is because it is in substance almost identical to one moved from the Opposition Labour Front Bench—I speak from the Opposition Benches this evening but not from the Opposition Front Bench—in the course of the Committee stage of the Crime (Sentences) Bill on 13th February 1997. The mover of that amendment was eloquent and concise. He said, It seems to us that wounding under Section 18 is of such a variable nature that it ought not to he a triggering mandatory offence".—[Official Report, 13/2/97; col. 372.1 It is no surprise that the mover should be so eloquent and concise because it was none other than the noble Lord, Lord Williams of Mostyn, who I see is suffering from such prickings of conscience that he needs a glass of water to calm himself. I hope that he will reply to this amendment and not rely on his trusty friend the noble and learned Lord the Solicitor-General. The noble Lord knows perfectly well what the policy of his party was when in Opposition; it is identical with what I put forward now. I could quote extracts of the speech of the present Home Secretary, Jack Straw, in the House of Commons on 4th November 1996 on the Second Reading of the Crime (Sentences) Bill, but there is no need to embarrass the noble Lord further.

Of course it is true that some Section 18 offences of causing grievous bodily harm, with intent, are serious indeed. They are the most serious offences, short of homicide. Nothing should be taken as implicit in this amendment which detracts from that in any way at all. They rightly carry up to a maximum sentence of life imprisonment, not simply on second conviction but on first conviction if the gravity of the offence warrants it. But because of what the Law Commission has criticised so strongly and because of what the Government have now accepted—namely, the drafting of Section 18—at the other end of the scale of this same section is a large cluster of relatively minor incidents, not of causing grievous bodily harm, but of wounding, and not always with prior intent, since attempting to resist or prevent arrest is also included. As the noble Lord, Lord Williams, pointed out last year, a wound simply means a breaking of the skin. So it can have what he described as no more than a trivial physical consequence.

Although the law has been in an unsatisfactory state for many years, until 1997 the courts had discretion to distinguish between the seriousness of the offence and relate it to the sentence passed, whether on first or subsequent convictions. The most cursory scrutiny of some recent Section 18 appeal cases reveals sentences as low as six months, upheld on appeal for biting an opponent's ear during a rugby match. There was also a probation order, increased to six months' imprisonment by the Court of Appeal on an Attorney-General's reference. After careful scrutiny by the Court of Appeal, the court decided that a probation order was a touch too low and that the offence warranted a custodial sentence, but only of six months. The convicted person might already have spent a period in pre-trial detention and we do not know whether or not he needed to go straight to prison. Those are examples at the lowest end of the sentencing range. That is why I have brought them out in this debate.

The Home Office figures in the 1996 Protecting the Public White Paper, published by the previous government, cited an average length for all offences of wounding with intent to do GBH, in the Crown Court and the magistrates' court, as 3.2 years. That was the whole range up to very serious offences indeed, whether on first or subsequent conviction; 79 per cent. of convictions resulted in a custodial sentence.

Many of these offences, from the most serious to the least serious, have at least one characteristic in common. They are impulsive rather than premeditated. In addition to loss of temper in sporting encounters (the two examples I have cited already) there are incidents of road rage and numerous disputes at licensed premises as anyone who has had experience either in the courts or, like my noble friend Lord Belstead and I, of reviewing Parole Board cases is only too aware. I have left out of this catalogue my noble friend—if I may call him that, although he very properly sits on the Cross-Benches because of his judicial appointment—the noble Viscount, Lord Colville of Culross, who succeeded me as chairman of the Parole Board and preceded my noble friend Lord Belstead. So there is a trinity of former chairmen in the House this evening.

This is an extremely serious issue. It touches on one of the most fundamental sentencing issues before our community at this stage in our penal history. I invite the Minister to explain to the House: what is the rationale for persisting with the inclusion of such an undifferentiated category of offences which, as we all accept, varies so widely in gravity in the list of serious offences (that is how they are described) which trigger an automatic mandatory sentence of life imprisonment on second conviction?

At the very least, will the Minister consider replacing the present Section 2(5)(d) of the 1997 Act, which embraces all offences under Section 18, with the proposed new offence—in the Government's own Bill published with the consultation paper—of causing intentional serious injury, the most serious of the new categories of offences against the person? The noble Lord, Lord Williams, gave me a moderately helpful reply when I raised the implications of the reform of the Offences Against the Person Act 1861 during debate on the third day in Committee. I hope he will go further today.

Without holding up the proceedings of the Committee unduly, perhaps I may be allowed a final reflection. Penal policy in the United States has been blighted for nearly two decades by mandatory minimum sentences for repeat, or in some cases first, offenders convicted of certain violent crimes and drugs offences. For these categories discretion to treat each case on its merits has been removed from the sentencing courts. Blatant inequities have resulted. They are got round, and the system of justice has continued to function only by the highly undesirable device of prosecutorial decisions after plea bargaining in private as to the nature of the offence charged. The prisons have filled to overflowing, with more and more capacity added at huge expense each year. In 1995 there was a total of 1.5 million prison inmates in the United States, a rate per 100,000 of population five times higher than that for England and Wales; and our prison population was already at a high level in that year.

Less than a year ago the introduction into our own law of mandatory sentences for non-homicide offences was a terrible mistake. It is one that will have far-reaching consequences. By accepting this amendment, the Government could begin to undo part of the harm done to our system of criminal justice. I beg to move.

Lord Ackner

This amendment is a modest and very limited one. It leaves intact the bulk of the provision which deals with automatic life sentences. It only extracts from it this small triggering series of offences.

In the White Paper issued by the previous government in 1990 entitled Crime, Justice and Protecting the Public, whose proposals, principles, and policies were embodied in the Criminal Justice Act 1991, the following statement is to be found: The Government rejects a rigid statutory framework, on the lines of those introduced in the United States or a system of minimum or mandatory sentences for certain offences". I know that it is water under the bridge and now part of our law, but this is the part of the White Paper statement that I wish to stress: This would make it more difficult to sentence justly in exceptional cases. It could also result in more acquittals by juries, with more guilty men and women going free unjustly as a result". Since the Home Secretary said in another place on 30th July, at col. 341 of the Official Report of the other place, My overriding priority is to secure the safety of the public", one should consider the validity of the statement, It could also result in more acquittals by juries, with more guilty men and women going free unjustly as a result". The statement is valid. I give five instances where what had happened could have that consequence.

First, there will be occasions when, if the jury are aware—as they could well be—that the defendant faces a mandatory life sentence if convicted, they will for that reason not convict. Where you are dealing with a relatively minor triggering offence, that must be a risk. Secondly, there will be refusals by defendants to enter, as they should and would have done, a plea of guilty. That will add enormously to the congestion of trial lists. It would be a source of great distress to victims who will be required to give evidence, often in sexual cases, which would of course cause them greater tension and unpleasantness. Also, with the heavy onus of proof, the guilty person will on occasions unjustly go free.

Thirdly, it is not difficult to imagine cases where witnesses, particularly those in close relationship with the defendant and knowing the consequences of a conviction, will either refuse to give evidence or will prove unreliable. Fourthly, there is the danger, referred to by both judges and politicians in the course of debates on the previous legislation, of the victim being actually killed by the defendant in order to avoid the risk of detection and subsequent life imprisonment.

Fifthly, in order to be sure of obtaining conviction, there will be cases in which the prosecution will find itself obliged to accept an unrealistic plea bargain. This is well known to be the case in America. Thus the discretion in sentencing will largely be transferred from the judiciary, where it should be, to the prosecution.

The previous government hid behind the potential injustice which the automatic life sentence would perpetrate by saying, "Ah well, there is a discretion with the judiciary. When the judge imposes a sentence of life he must say what the period for punishment and deterrence is." With the accent upon openness in sentencing, there will be a positive obligation to do so.

Let us take the case which the noble Lord, Lord Windlesham, mentioned of the wounding attracting only a sentence of six months. This is how it goes in practice: "Mr. Brown, you have been found guilty of two offences—" and they will be referred to—"and I am obliged by Parliament, as a result of that, to sentence you to life imprisonment. I am also obliged by Parliament to explain to you what in reality that means. In reality it means this: I have to decide what is the tariff, the period which you should serve by way of punishment and deterrence. I do so decide, having regard to the mitigation which has been outlined at some length by your counsel. I decide that the tariff should be six months. So although I have imposed a sentence upon you for life, it will be, so far as punishment and deterrence are concerned, six months. Of course, at the end of the tariff period your case will have to be considered by the Parole Board. But you need not be too anxious about that. I have had the clearest of evidence that you are not in any way a danger to society and it is only on that basis that the Parole Board would prolong your incarceration. Therefore, with considerable confidence, you can expect to be released from your life sentence in fact in probably less than six months, having regard to the parole or other provisions which may exist at the time."

That situation was castigated, very rightly, by the noble Lord, Lord Williams of Mostyn, on the Second Reading of the Crime (Sentences) Bill. He said: An unjust sentence is also one which allows and recognises no difference in cases and therefore sentences between one crime, one criminal, and another. Putting a tick in a box is no way to sentence in crime. Life is not that simple, and neither is crime". He went on to say: I am going to take a citation from one noble and learned Lord present this evening who is the object of our affection and regard".—[Official Report, 27/1/97: co1.1061.] He continued quickly to say, in case there should be any mistake, that he referred to the Lord Chief Justice Lord Taylor of Gosforth. The noble Lord, Lord Williams, quoted Lord Taylor as saying, at the same column inHansard: It cannot be right for sentence to be passed without regard to the gravity, frequency, consequence or other circumstances of the offending". The coup de grâce comes in the following few lines at column 1063, when the noble Lord, Lord Williams of Mostyn, said: The sentencing regime for which we contend should, as many noble Lords have said, be open and transparent; hut it is nonsensical to invite a High Court judge to say, 'I am sentencing you to life imprisonment. By the way, you can expect to serve 18 months'. That is a perversion of the system. It will bring the whole system into disrepute. If it brings it into disrepute on that basis, it will have brought it rightly into disrepute on that basis". I should be interested to hear what the noble Lord says. It may confirm the rumour which I hear exists on the Wales and Chester circuit that the noble Lord's bardic title is now Di Chotomy.

6.30 p.m.

Lord Thomas of Gresford

If I am brief, it is because I have the good fortune or the misfortune to follow the noble and learned Lord, Lord Ackner, who has the habit of making every single point that one could possibly make on the matter. Perhaps I may express support for the amendment which was moved with such thought and imagination by the noble Lord, Lord Windlesham. I also support his expression that the legislation was a terrible mistake. We on these Benches contended that that was the situation then and we still contend it today.

I wish to raise three matters. First, experience shows that where there is an indictment, where Section 18 is charged, the first thing that happens—provided identity is not an issue—is that discussions take place between counsel. As a rule of thumb, as a prosecutor, one would maintain a Section 18 charge if a weapon had been used, if it was a knife, a bar or something of that serious nature. Very rarely would one maintain, as a prosecutor, a Section 18 charge if it were a question of fists or even kicking. That is the first stage.

The second stage that one has to consider is this. If in the future it becomes known to a jury that life imprisonment is to be the effect of a guilty verdict when a person is charged with a Section 18 offence, it is highly unlikely, save in the most exceptional circumstances, that a jury will convict on Section 18 at all. That means that the prosecutor's temptation to reduce the charge to Section 20 will be that much greater. It seems to me that in practice Section 18 trials will become rare, Section 20 pleas will be accepted and people who are guilty of more serious conduct, which today would merit a Section 18 conviction, will get away with it.

Finally, may I underline the views that were put forward by the noble and learned Lord, Lord Ackner, about the sentencing process. He has said it all. For a judge to tell a defendant in his sentencing remarks that "I am sentencing you to life imprisonment and that means six months" makes a nonsense of the system. As we said when this legislation went through, it undermines public confidence in the criminal justice system when nonsenses like that can occur. I support the amendment.

Baroness David

My name is attached to this amendment, and I support it really strongly. The case has been put so eloquently by the noble Lord, Lord Windlesham, but there was one point I was going to make about the tariff argument, which was made by the noble and learned Lord, Lord Ackner. It would seem very strange if my noble friend Lord Williams of Mostyn, the present Home Secretary, Jack Straw, and Alun Michael, now a Minister of State in the Home Office, who all spoke in favour of this amendment only a year ago, had now changed their minds. I should be most interested to hear their arguments. I do hope that the Home Office has not had this terrible influence within less than a year to make them change their minds. I have sometimes been a bit suspicious about some of my noble friends who seem to be rather more under the influence of the Home Office than I would have hoped, but in this case I very much hope that they will be able to accept the noble Lord's amendment; or, at any rate, the serious suggestion that he made at the end of his speech.

Lord Henley

I find myself in something of a quandary over this amendment and I rather think that the noble Lord, Lord Williams, will feel very much the same about his situation; indeed, he will be in an even greater quandary than I. Normally, I like to support my noble friends Lord Windlesham and Lord Carlisle of Bucklow and on some occasions I would even wish to support the noble Baroness, Lady David, although, as she will recognise, I do not always support amendments which she puts forward. Sadly, on this occasion I cannot offer my support from these Benches to my noble friends over this particular amendment. As my noble friend has reminded the Committee, it is only a little over a year since these new provisions were introduced by my right honourable friend Mr. Michael Howard and we have only had a year to see them in operation. Having been introduced into both Houses of Parliament and agreed to, it would be premature to remove these provisions at this stage.

Having said that, I find myself, as I say, in something of a quandary. I suspect that the position of the noble Lord, Lord Williams, is somewhat worse. He has been reminded by my noble friend Lord Windlesham of his words a little over a year ago, as the earlier Bill was proceeding through both Houses of Parliament. The noble and learned Lord the Solicitor-General reminded us that on top of one of his earlier notes was the word "resist". We have all seen that word on a great many notes prepared for us by officials as Bills pass through Parliament. No doubt the noble Lord has "resist" written very firmly at the top of his brief. Of course, I do not know whether or not that is the case and certainly it is not for me to put forward the arguments against this particular amendment. However, I am looking forward to hearing the noble Lord, with his usual eloquence, putting forward those arguments. I have no doubt that he will do so after I have sat down.

Lord Harris of Greenwich

The reason an absurdity of this kind was put on to the statute book was because of the frenzied pre-election atmosphere obtaining at that time. It was a nonsense; this House knew it was a nonsense when it was debated; and unhappily it remains on the statute book. Here is an opportunity for making some limited progress in putting this matter right.

The noble Baroness, Lady David, and I agree with one another almost always on criminal justice issues, but the one matter on which I am afraid I cannot possibly agree with her concerns this fancy that Ministers are surrounded by right-wing officials in the Home Office, all of whom are intent on bending Ministers to their will. That, I can assure the noble Baroness, has no connection with reality at all. Those of us who have been Home Office Ministers know that to be the position and I am sure she will not persist in that argument.

Lord Henley

I feel bound to support the noble Lord. I did not think it was officials who bent the ear of Ministers in the Home Office. I suspect that it is the Ministers themselves in the Home Office who have changed the views they held a little over a year ago and have come to pursue some of the policies previously advocated by my right honourable friend Mr. Michael Howard.

Lord Hylton

I should just like to ask the noble Lord, Lord Henley, the following questions. Does he not see some risk of automatic sentences turning out to be idiotic sentences? Does he really want English prisons to become clogged up in the same sort of way as American prisons?

Lord Henley

As I have said, these matters were debated at some length a little over a year ago and, as I was putting forward, the provisions have only been in place for a year. Therefore, it is right to give them a little longer to have an effect so that we can see exactly how they operate. I do not think it is right that Parliament, less than a year after these provisions were passed, should seek to repeal them.

6.45 p.m.

Lord Williams of Mostyn

It is not "resist" that is written on the top of my note; it is the words, "explain helpfully", and I have just written them on myself!

What this amendment seeks to do is to remove one part, and one part only, of the automatic life sentence offences. As the noble Lord rightly pointed out, this is simply one of 10 and relates to Section 18 wounding or causing grievous bodily harm with intent. I think one needs to pause a moment and consider the full definition. It is not wounding or causing grievous bodily harm; it is committing either of those two offences with the overriding intent of causing grievous bodily harm. In the language of today: some really serious physical injury. The first deployment—

Lord Windlesham

I am sorry, but before the noble Lord leaves that point, could I ask him to elucidate it? In my reading of paragraph (d) of Subsection (5), the words in brackets referring to wounding or causing grievous bodily harm with intent are merely a short description of every offence covered under Section 18 and do not limit certain offences within Section 18. Is that not correct?

Lord Williams of Mostyn

I am not contending to the contrary. What I am saying is what I believe to be a correct summary of the law: that simple wounding or simple grievous bodily harm is not sufficient to constitute Section 18 under the Offences Against the Person Act. One has to have the added component of intent, and -intent" there means the intent to cause grievous bodily harm. Of that there can be no doubt, because if the prosecutor fails to prove intent Section 18 cannot be the foundation of a guilty verdict.

Perhaps I may turn to the various ways in which the argument was deployed. First, the noble Lord rightly said that the language of 1861 is likely to be archaic and unhelpful in 1998. The purpose behind the Home Secretary's remarks is that the whole question of the offences under the Offences Against the Person Act needs to be reviewed. Of course, it would necessarily follow that, if the draft Offences Against the Person Bill is enacted in its present form, we shall have to redefine paragraph (d) of Section 2(5) of the Crime (Sentences) Act 1997. But that is an inevitable consequence about which I personally see no difficulties.

The noble Lord, Lord Thomas of Gresford, said that a jury would be unwilling to find a verdict of guilty on a Section 18 offence if it knew that it meant life imprisonment. But life imprisonment is for a second offence. In those circumstances, how is the jury to know that it is a second offence?

Lord Thomas of Gresford

Perhaps I may reply to the noble Lord. This was an issue which I recall being taken up by the noble Baroness, Lady Blatch. She felt that it was impossible that a defence counsel would ever reveal to a jury a previous conviction for a similar offence. I pointed out to her that in practice it is frequently done—I am sure the noble Lord has done it—if there is an advantage to be gained for the defendant. In a situation where there was a second Section 18 charge, which did not involve permanent injury to a person but came within the definition of the offence, one would certainly tell the jury what the result of a guilty verdict would be.

Lord Williams of Mostyn

If one told the jury that, it would be professional misconduct, as has plainly been set out by the Bar Counsel and I believe by the Court of Appeal, Criminal Division. The introduction of a previous conviction to establish that life imprisonment was the likely sentence on conviction of the present charge, would be wholly wrong, as it was found to be wholly wrong by the Court of Criminal Appeal as it then was, when murder was still a capital offence, for counsel to say to the jury, "It is hanging for my client unless you make a recommendation for mercy". There is no doubt about that professional position.

Lord Ackner

That is perhaps a bit simplistic. If the facts fit, one can ask the accused, "Have you committed any previous offence?" and his character can be put in. He may say, "Yes". Let us say that one of the offences is a triggering offence; he can then be asked, "Are you aware what might be the consequences to you, having that previous record, if you committed an offence of the type with which you are charged?". He may answer, "Yes". He can then be asked, "Did you know that before the offence charged here?".

Lord Williams of Mostyn

A judge properly conducting a trial in those circumstances would want to know the relevance of the inquiry. I suggest that it has no more relevance than asking a defendant charged with rape, "Do you know what the maximum sentence for rape is?"; answer, "Yes, life imprisonment". "Do you think you would have raped this woman knowing that you were likely to get life imprisonment?".

In practice I do not see any sensible distinction and I retain my position that it is professionally improper to seek that sort of advantage as opposed to a legitimate advantage when putting the defendant's character in on a different basis.

I turn from that because it leads to a further point. Many of the propositions put forward are the usual shibboleths which are brought out on these occasions when there is no better argument to hand. For instance, if juries know that life imprisonment is the maximum sentence for rape at the moment—which they may or may not do—I doubt, in the absence of jury research, that jurors ponder, when having a quick knit or a cigarette, what the sentence is likely to be. Jurors do not work in that way. It demeans the conscientiousness of jurors who have taken their oath to suggest that. Jurors do not say in rape cases, "If we convict, it means life imprisonment", any more than they do in cases involving the difference between murder and manslaughter.

Lord Thomas of Gresford

The noble Lord knows that there is no research on the way in which jurors come to their conclusions. However, one would have thought that speculation in a jury room as to what will happen to a defendant forms a serious and important part of their deliberations.

Lord Williams of Mostyn

I said that there is no research and, there being no research, I am not sure that the noble Lord is any better qualified than I am to speculate what goes through jurors' minds. I am simply therefore attending to argument as opposed to speculation.

The present maximum for Section 18 offences is life imprisonment, and it has been that for a long time. The purpose of the amendments for which we struggled—and it was a struggle—was to make sure that the automatic life sentence (so-called wrongly, but it is a useful shorthand) was not to be absolute. The amendment for which we contended was that, in respect of any of the 10 offences specified by the noble Lord, Lord Windlesham, there was no obligation on the sentencing judge to pass an "automatic life sentence". The proviso was there. We urged it and we received much Cross-Bench support. No judge had to impose such a sentence if there were exceptional circumstances relating either to the offences or the offender which justified the court in not passing the "automatic life sentence".

That was the amendment for which I contended. I withdraw no word that I uttered on that occasion. Fortunately, Members of your Lordships' Chamber tended to agree with what was then the Opposition and supported our amendments which were eventually Passed and became part of the Bill. Therefore, when we speak of "automatic life sentences" it is a useful shorthand, but it is not fully accurate.

Lord Ackner

I may be wholly wrong, but I thought that the amendment which we managed to pass in this Chamber and which was castigated by the government as driving a horse and coaches through the Bill—I believe that that is the amendment the noble Lord has in mind—related to the automatic minimum sentences. In regard to the life sentences, I thought that the let-out which the Government provided and which the Opposition were not allowed—if I may so put it in this Chamber—to mitigate, was the tariff system; hence the observation which the noble Lord, Lord Williams, made and which I quoted. The amendment related to the automatic minimum sentences.

Lord Williams of Mostyn

There were two amendments. One referred to the fact that an automatic sentence does not have to be imposed if there are exceptional circumstances relating to either the offences or the offender. That relates to the 10 in the sub-category identified by the noble Lord, Lord Windlesham. The amendment to which the noble and learned Lord, Lord Ackner, refers, is whether such a sentence would be unjust. That is a different amendment relating to the minimum tariffs.

Lord Ackner

I am sorry to prolong this matter. The exceptional circumstances had been put in by the government and the government said, "Do not get too excited about this because, as the law stands, 'exceptional circumstances' means once in a blue moon". That is how it came about that "exceptional circumstances" was not considered adequate.

Lord Williams of Mostyn

I believe that the noble and learned Lord is mistaken. However, I shall revisit this as part of my research. My present understanding is quite plain. Exceptional circumstances relating to this subgroup of 10 was an amendment which was passed relating either to the offences or the offender; and the question of whether it would be unjust related to the minima in respect of repeat burglaries and repeat drug offences. But I shall check that. It is possible that it is I who am wrong and not the noble and learned Lord. Whichever one of us is in error, I dare say that we shall feel quite mortified.

Lord Windlesham

This is an important part of our debate because the Minister has to use every argument he can find to defend something which is difficult to defend. The two examples which I gave of six-month sentences were convictions under Section 18; that is why they went to the Court of Appeal and that is why they were upheld after an Attorney General's reference. Leaving aside whether it comes under the exceptional circumstances or a custodial sentence which would be unjust in all the circumstances, does the Minister think that those saving clauses could be used by the courts not to apply the mandatory life sentence? I should have thought that the guidance given to sentencing judges by the Lord Chief Justice—I look to my noble and learned friend Lord Ackner for confirmation—would probably say that that could not amount to exceptional circumstances or to a sentence that was unjust in all the circumstances. What answer can the noble Lord give to that speculation?

7 p.m.

Lord Williams of Mostyn

The exceptional circumstances proviso relates to this subgroup of 10.

Lord Windlesham

I am sorry to interrupt the noble Lord. He keeps referring to a subgroup of 10. I think it is a subgroup of eight.

Lord Williams of Mostyn

The noble Lord is quite right. It is a subgroup of eight. It is the same subgroup. We are dealing with paragraph (d) of one subgroup.

I go to my point. The court is not required to pass the mandatory life sentence, which therefore is not a mandatory one if properly so considered, if there are exceptional circumstances relating either to the offences or the offender. If I understand that correctly, it relates to either of the offences—number one or triggering two—or the offender himself. It is for the courts to decide. But it seems to me that if there are two relatively minor examples of qualifying offences, that could legitimately amount to exceptional circumstances which would justify the sentencer in not imposing the automatic life sentence. That is a matter, of course, for the courts to decide—originally at first instance and then to have the guidance and the guidelines from the Court of Appeal.

Lord Thomas of Gresford

Is the Minister aware that special and exceptional circumstances were considered in the case of Beedie (reported in 3Weekly Law Reports, on page 768, last year, 1997) and that it was held by Lord Justice Rose that they do not mean good reasons; they mean exceptional circumstances so as to take the case completely outside the general rule which is to be applied. "Good reasons" are not enough. "Exceptional circumstances" means exactly what it says.

Lord Williams of Mostyn

I accept that Lord Justice Rose came to the unexceptional conclusion that exceptional circumstances means precisely what it says. I do not know the date of Beedie. I wonder whether it was before or after—

Lord Thomas of Gresford

It was 1997.

Lord Williams of Mostyn

As I was about to say, I do not know whether it was before or after 1st October 1997.

Lord Thomas of Gresford

It was in March.

Lord Williams of Mostyn

I thought that might be so because 1st October 1997 was when the provisions first came into effect. Since then there has been, so far as our researches indicate, only one case where an automatic sentence has been imposed. It was a case in which a man was guilty of armed robbery. On the very first day of release from prison he set about another resident at the hostel where he was staying and stabbed him with a knife in the back, the ribs and the chest in an attack that lasted 30 minutes. That happened on the first day out of prison—an automatic life sentence and a tariff of six years was set.

I do not wish to look for support in unlikely quarters, but I believe the noble Lord, Lord Henley, was right in saying that we do not know how these things will work in practice. The experience in practice is so very limited. The commencement date of the provision was 1st October.

It is not entirely plain to me, if this is to be a principled machine-gunning of this subgroup of eight, why paragraph (d) has been selected. I can understand why no attempt has been made to impeach the automatic sentence for attempted murder, soliciting murder, and manslaughter, but what about unlawful sexual intercourse with a girl under the age of 13, or robbery in possession of an imitation firearm, which might just be a plastic water pistol? Is this a principled attack, or is it—dare I question?—simply an opportunist attempt to focus on one part of the provisions? Those with more metropolitan minds than my own might think that opportunism rather than principle was driving some of these observations—not all of them.

Lord Thomas of Gresford

Has the noble Lord changed the principles that he enunciated so clearly and that have been quoted so well by the noble and learned Lord, Lord Ackner? Has his view changed; and if so, why?

Lord Williams of Mostyn

My view has not changed. I believe there ought to be transparency in sentence; I believe the public ought to know what sentences mean; I believe that the present Home Secretary, when in opposition, was quite right in that, in a sense, there has been for too long a collusion between the courts and the lawyers about what sentences really mean.

The noble and learned Lord, Lord Ackner, is always a ready friend in time of trouble because he helpfully reminds me of those words, from which I do not resile. I said that the system should be open. That has been attended to as recently as 22nd January of this year. The Lord Chief Justice issued his practice direction. He said, in respect of what the sentence means in practice, that the judge must explain it, he must set the tariff, he must tell the offender—just as importantly, the victims, the complainants and the public—what the tariff is going to. be, and he will have to spell out what it means in practice.

I believe that is entirely consistent and consonant with what I said ought to be an important central aspect of the criminal justice system, particularly in sentencing. I believe that sentencing is not putting a tick in the box, as is done in some North American jurisdictions, where there is no margin for the court to sentence appropriately. There is a margin here—exceptional circumstances relating to the offences or the offender. There is a margin on the mandatory drugs sentences—unjust in all the circumstances. Personally, I do not agree with tick in the box sentences, but this scheme does not allow for tick in the box full-stop. It allows for the reasoned introduction by the judge of the consideration of whether the circumstances are exceptional in relation to the offences or the offender so as to make the sentence not appropriate.

To sum up, as they say in other places, I do not resile from anything I have said in the past. I believe in judicial discretion. I believe that if one changes the law one ought to see how it works in practice as opposed to the basis of prejudiced preview. In all the circumstances, I invite the noble Lord to withdraw the amendment.

Lord Harris of Greenwich

Will the noble Lord explain the advice given to him at the top left-hand part of his brief, where he reassured us that the word was not "reject" but "explain helpfully"? It sounded to me as though he had misread what was at the top left-hand side of his brief.

Lord Williams of Mostyn

Since I myself wrote down "explain" and underlined "helpfully", I believe that is what I have done. What I have done is to point out quite plainly some facts. The commencement of this section was as recent as 1st October last year. The second proposition is that we have had little opportunity to see this in action. The third is a gentle injunction to see how things actually work out; whether they work satisfactorily or not; and if they do not, they will have to be reviewed. But from October to February—I am not about to break into song—is not really a very long time.

Lord Windlesham

I thank the noble Baroness, Lady David, who is a co-sponsor of the amendment, for her effective speech from the Government's own Benches. My noble friend Lord Carlisle of Bucklow, who made such a powerful contribution in the earlier stages of the Committee, asked me to apologise on his behalf to the Committee for his inability to be present. I dare say that his absence has been appreciated more by the noble Lord who replied because he would have had to face another extraordinarily vocal and experienced critic. I thank the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Thomas of Gresford, both practitioners with long experience in the criminal courts, and the noble Lord, Lord Harris of Greenwich, who I left out from my earlier litany of former chairmen of the Parole Board. He held that office as my immediate predecessor.

We have heard tonight the speech of a skilled advocate making the best of an extremely difficult task. We appreciate and enjoy the way in which he did it. He asked whether this was an amendment based on principled objection or whether it was simply an opportunity to embarrass the Government and indeed to embarrass him, although he did not put it quite in those terms. Why did we select paragraph (d) out of the list of eight offences which trigger a mandatory life sentence on second conviction? We selected it for the same reason that he selected it when he spoke just a year ago. It is the strongest example of the inappropriateness of this particular section of our criminal law. That is why it was chosen.

In my opening speech I made it abundantly clear that I am totally and absolutely opposed to the entire section. I believe that it was wrong; and that it was the most serious mistake that has been made in our criminal justice system for many years. I shall continue to do everything I can to undermine it. The experience shared with others in this House as regards the mandatory life sentence for murder—another subject for another day—is that the progress made over the past two decades has been inch by inch, bit by bit. The edifice has been eroded until there is only the last plank left. Some of that has been achieved in the courts and some in Parliament. A large part has been the result of decisions by the European Court of Human Rights. That is how changes are made in our criminal law.

I did not expect the noble Lord to say this evening, "I still stick to what I said before and I have persuaded my good friends now". I did not expect to carry this amendment. It may be that we could do so, but I do not propose to call a Division. It is to call attention to the irrationality and deep injustice of mandatory sentencing that I have selected this particular example for debate tonight. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.15 p.m.

Clause 70 [Extended sentences for sex and violent offenders]:

Lord Mackay of Drumadoon moved Amendment No. 218B: Page 55, line 32, leave out from ("court") to ("and") in line 33 and insert ("considers appropriate taking into account—

  1. (i) the seriousness of the offence, or of the offence combined with other offences associated with it, and
  2. (ii) any previous conviction of the offender").

The noble and learned Lord said: This is a probing amendment directed at the provisions of Clause 70 of the Bill. It seeks to explore, if it can, one aspect of government policy that lies behind this clause, and in particular to explore how the Government propose that the courts should take account of the need to protect members of the public when exercising the new sentencing powers that the clause will give them.

It is my understanding from the discussions that took place earlier today in relation to the corresponding English provision that it is intended that this new provision should deal with serious offenders; namely, those who have been convicted on indictment of either sexual or violent offences.

When this Bill was debated at Second Reading very little was said in any of the speeches about these clauses and about their English equivalents. The noble Lord, Lord Williams of Mostyn, described the clauses as extending the supervision of offenders, but they go somewhat further than that in making those who are subject to them the subject of the full rigours of the licence system. In particular it affords the opportunity to the courts to impose periods of licence far in excess of the custodial term of the sentence concerned. I stand to be corrected if I am wrong, but as far as I am aware the reasoning behind the new provisions has not been explained in any consultation document or in any other statement of government policy on the matter.

As regards protecting the public at the present time, that can arise in two instances. First, when one is dealing with a determinate sentence it is possible for the court to take into account the need to protect the public as well as the need to punish the offender. The need to protect the public can be taken into account in determining the length of sentence. That is one of the factors that goes into the total sentence.

Secondly, another area in which the issue arises is in deciding whether or not to impose a discretionary life sentence. The fact that an accused is established to be a danger to the public can clearly be a justification for exercising such an option, which is open in every case where the maximum sentence is life imprisonment. If the latter option is exercised by the court, then in fixing the relevant part the judge is directed by statute to leave out of account the issue of protecting the public. In fixing the relevant part all the judge takes account of is the seriousness of the offence and any previous conviction of the accused. That is how the relevant part is fixed. Therefore—to use the word that we heard a moment ago—there is a dichotomy between the approach following the determinate sentence, namely, taking it into account, and in life sentences leaving it out of account.

I seek to explore the provisions of the new Section 210A(2)(b). If the court chooses to follow that route it is charged with imposing a further period: namely, the extension period, for which the offender can he subject to a licence and which is, subject to the provisions of this section, of such length as the court considers necessary for the protection of the public from serious harm. In other words, it is the fixing of the extension period and the need to protect the public for a particular period that is very much before the court. But in fixing the custodial sentence the court is charged with imposing the term of imprisonment which it would have passed on the offender otherwise than under this section. In other words, the need to protect the public is taken into account in that matter as well. That is in contra-distinction to the approach which is followed in setting the relevant part in a discretionary life sentence.

When my noble friend Lord Windlesham discussed an earlier amendment he spoke of the English equivalent provision falling into two parts; namely, the custodial part, which was the penal element, and the extended part, which was intended to prevent the commission of further offences. I assume that the noble and learned Lord the Lord Advocate will reply. Was my noble friend Lord Windlesham correct in drawing a distinction in those terms? Alternatively, as I suggest, is the natural construction of the clause as presently framed that it is the Government's policy that if there is held to be a need to protect the public from serious harm from the offender on his release that is one factor which should be taken into account in the custodial term and in fixing the extension period? I beg to move.

The Lord Advocate (Lord Hardie)

The amendment as framed would have the unintended effect of limiting judicial discretion by restricting the range of facts which the sentencing judge would be entitled to take into account in deciding the appropriate length of the custodial element of the sentence. For that reason, the amendment is unacceptable to the Government.

Having said that, I appreciate the fact that, as the noble and learned Lord said, this is a probing amendment. To answer the question shortly, it is our position that the sentencing judge would take into account the question of protection of the public at both stages, so that in deciding the appropriate custodial element of the sentence, the judge would take into account the same factors as he or she would take into account, apart from this provision. As the noble and learned Lord properly observed, the protection of the public is a proper consideration in determining the length of a custodial sentence.

However, this provision goes further. Having decided on the appropriate length of the custodial sentence which the court would otherwise have imposed but for this provision, the court also has to consider whether it would be appropriate to have a further period, the extended period, during which the accused or convicted person would be on licence. That period is not to be seen as an additional prison sentence, but as a period on licence when the accused will, we hope, have the support of the appropriate authorities and be under supervision. Obviously, if he or she breached the terms of the licence, he or she would be returned to prison.

I hope that that assists the noble and learned Lord in understanding the thinking behind the provision. In short, the Government do not intend that any different criteria would apply in determining the appropriate length of custodial sentence.

Lord Mackay of Drumadoon

I am grateful to the noble and learned Lord. My concern was to clarify the position not only for my purposes, but also for those who will have to deploy the powers in the fullness of time. One possible consequence of the provision if it is not correctly construed and applied is that because of the availability of the extension period, judges might be tempted to restrict the custodial term and, as I understand it—I am sure that I do understand what the noble and learned Lord has said—the policy is not that there should be any curtailment of the custodial term. Having received that assurance, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 70 shall stand part of the Bill?

Lord Mackay of Drumadoon

Again, in a probing nature and briefly, I should like to raise one or two matters which I hope the noble and learned Lord can clarify. As I have already indicated, under new subsection (2)(b) of the proposed new Section 210A of the 1995 Act, it will be necessary for the court to reach a view as to the duration of the extension period to the effect that it should be of such length as the court considers necessary for the protection of the public from serious harm following the release of the offender. In other words, we are going one stage further. In taking into account the overall custodial term, one is deciding upon a fixed period which is, to quote the provisions again, of such length as the court considers necessary. I seek to probe how the Government intend that the courts should assess the duration of the extension period within the parameters that are set down in what will be new subsection (3) which states that in a sexual offence case, the period could be 10 years while in a case involving a violent offence, it is limited to five years. It might be of assistance if the noble and learned Lord could explain why there is that difference. Although sexual offences can be serious and could arguably require an extension period of 10 years, one can imagine many violent offences, which would not qualify as sexual offences, being just as serious and which members of the public would perceive as being just as serious.

My first question is: how do the Government envisage that the courts will set about the statutory duty that is laid upon them to determine what length of sentence is necessary? Secondly, if the court, having been satisfied that it was necessary to protect the public from serious harm, was of the view that an extension period was necessary but believed that the limit of five or 10 years imposed by statute was too low, is it the Government's view that that would necessarily lead the court to impose a discretionary life sentence? I repeat that if by that stage the court is satisfied that custody is appropriate; that there is a need to protect the public; and the length of five or 10 years as set down by Parliament is inadequate, does that mean that a discretionary life sentence becomes virtually automatic?

I do not raise these practical matters now in any attempt to frustrate the provisions—although I have not read much about this, I believe that it might be a useful addition to the sentencing armoury—but because they are important issues which I hope can be clarified now.

The Earl of Mar and Kellie

I have two points about the extension period. First, would I be right in presuming that the Government expect that the maximum period laid down will be the normal amount of the extension period that will be imposed, or will there be a published scale of a ratio between custodial sentence and extended supervision? Secondly, if supervision is substantially extended, it will clearly have a considerable effect on local authority social work departments which will have to carry it out. I say that bearing in mind that we have already established that there will be no additional money for local authorities to carry out these new duties.

Lord Hardie

I should like to deal in turn with the points that have been raised. I reply first to the point raised by the noble and learned Lord, Lord Mackay of Drumadoon, about the factors governing how the court will assess whether there is a need to protect the public from serious harm following the release of the offender. The court will be expected to go through the same exercise and to rely on similar sources of information to those on which it relies now in deciding whether there is a risk to the public. As the noble and learned Lord will be aware, the court will consider the previous behaviour of the accused and whether there is a pattern—this is particularly true with regard to sexual offences—indicating that he or she poses a risk to the public. Other information would be available to the court, for example social background reports and perhaps psychiatric reports and the like. The court would look at the circumstances of the offence and all other information available to it. The judge would have to make an assessment as to whether there was a risk of serious harm to the public.

Lord Mackay of Drumadoon

I have no difficulty with that. My difficulty lies in identifying the criteria against which the court will determine the length of time during which it is necessary to protect the public. I have no difficulty about identifying an accused man who is perceived to be a danger to the public. The factors that the noble and learned Lord have mentioned are fully understood. I have difficulty in trying to work out the length of time during which this condition (if it may be so described) exists, because that seems to me to be a necessary ingredient of the exercise of the powers bestowed upon the court by the provision.

Lord Hardie

I am grateful to the noble and learned Lord for his intervention. That picks up the question raised earlier by the noble Earl, Lord Mar and Kellie, as to whether the period of five years or 10 years, as the case may be, would automatically be the period that was fixed. I think not. I hope that the court will look at the circumstances of the individual to fix the terms that the court considers appropriate. It is difficult for me to give any clear guidelines to judges in the sense that it will automatically be eight years, five years or three years in particular cases. The courts would be entitled to call for reports from social workers if they were not already available. They would also be entitled to call for reports from psychiatrists or, more importantly, psychologists to assess the level of risk.

The whole question of risk assessment is a very novel concept in the criminal law. It is a concept with which the noble and learned Lord is familiar in civil law. I would not have thought that it was difficult for courts to develop practices and to call upon expertise to identify the level of risk in a particular case. The court would have to make a judgment on the basis of that as to the appropriate period to impose as an extension to a licence period.

The noble and learned Lord raises the question whether if a court feels that 10 years, or five years in the case of a violent offender, is too short it will automatically impose a discretionary life sentence. That would be an option open to the court. The court would have to consider all of the circumstances and decide whether it was appropriate to impose a discretionary life sentence or even a much longer fixed term followed by the 10-year maximum period of extension in the context of this provision. These are matters within the discretion of the court. I believe that there are two options: one is the discretionary life sentence and the other is a longer fixed period plus the maximum extension. It is hoped that either of those will have the effect of protecting the public for a sufficiently long period. If an offence is committed during the extension period the offender will be recalled. I do not know whether that meets all of the concerns that have been raised.

As to the difference between the five years and the 10 years, it is acknowledged that sex offenders are particularly prone to re-offend. I say that having recently attended a training weekend at Ballathie, with which the noble and learned Lord will be familiar. There we were addressed by a distinguished expert who indicated that this was a feature of sex offenders. However trivial the sex offence, it was likely that there would be a re-offence. The thinking of the Government in relation to sex offenders is that the longer period of 10 years is appropriate. If, in the context of the five-year period for violent offenders, it is considered by the Secretary of State that on the basis of experience that period is not long enough, the clause gives the Secretary of State power to make an order amending the five-year maximum extension period in the case of violent offenders, thus bringing them up to 10 years as well. In the case of an extremely violent offender one anticipates that the court will impose a sufficiently long fixed period or a discretionary life sentence, thereby affording protection of the public.

Lord Mackay of Drumadoon

I am sure that the answer given by the noble and learned Lord will be of assistance to the courts, in particular his view that the Government anticipate that judges will seek guidance from reports and experts rather than seek to decide the period to be imposed on the basis of their own experience. I am more than satisfied with the response that I have received and I withdraw my opposition to the clause.

Clause 70 agreed to.

Clause 71 agreed to.

Lord Hoyle

My Lords, I beg to move that the House do now resume. In moving this Motion I suggest that the Committee stage begins again not before 8.35 p.m.

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

House resumed.

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