Criminal Justice Bill

HL Deb 17 November 2003 vol 654 cc1774-821

3.3 p.m.

Read a third time.

Clause 3 [Arrestable offences]:

The Minister of State, Home Office (Baroness Scotland of Asthal) moved Amendment No. 1: Page 2, line 13, leave out "a Class C drug" and insert "cannabis or cannabis resin

The noble Baroness said: My Lords, I have tabled Amendment No. 1 to fulfil the undertaking that I gave to the House on Report to table an amendment to Clause 3(3) at Third Reading. Its acceptance would mean that, following the reclassification of cannabis to class C under the Misuse of Drugs Act 1971, t he police would have a power of arrest under the Police and Criminal Evidence Act 1984 for the offence of possession of cannabis or cannabis resin but not for other class C drugs.

The amendment reflects the Government's consideration of the views expressed in this House and another place as to the scope of the provisions set out in subsection (3) and our decision to agree to amendment of the clause by applying the power of arrest in respect of class C drugs only to offences of possession of cannabis and cannabis resin following their proposed reclassification.

It also reflects the amendment tabled by the noble Lord, Lord Hodgson, and the noble Baroness, Lady Anelay, on Report in this House. Their amendment, which has the same purpose as this one, we accepted in principle. However, it sought to delete the words "within the meaning of that Act" which, from a drafting perspective, we would wish to retain. The amendment I am now moving addresses this point.

On Report I also undertook to bring forward appropriate amendments to Clause 7 which would clarify the position on keeping records of a detained person's property. Amendment No. 2 reflects the principle of Amendments Nos. 11Aand 11C, tabled by the noble Lord, Lord Dholakia, and the noble Baroness, Lady Harris. It would explicitly indicate the ability to record a detained person's property but that the officer has a discretion as to whether or not this should be carried out in every case. It would also enable the custody officer to determine if such a record should be kept as part of the custody record elsewhere. Amendment No. 124 would insert a new Schedule 35 which would amend Section 54(1) of PACE to effect the proposals in Clause 7.

I should like to put on record that during Report stage in your Lordships' House, when I said that the Government would accept Amendments Nos. 11A and 11B, I meant Amendments Nos. 11A and 11C. I hope that that was clear from the content of what I said because I was of course referring to the previous numbering allocated to those amendments. I have written to both the noble Baroness and the noble Lord to apologise for any confusion and to set the record straight. We resisted Amendment No. 11B because imposing an absolute requirement to record property when requested would open the door to deliberately obstructive requests.

With that rather lengthy explanation, I beg to move.

Baroness Anelay of St Johns

My Lords, I rise to put on record the first of what I hope will be a series of thanks to the Government for responding to points made at an earlier stage, particularly in regard to Amendment No. 1. We fully accept that there was a technical drafting deficiency in our amendment and we prefer the Government's amendment.

As regards Amendment No. 2—to which, no doubt, the noble Baroness, Lady Harris of Richmond, will speak in a moment—we also welcome the fact that it reflects very fairly the request made by my noble friend Lord Hunt of Wirral in Committee on 30th June.

Baroness Harris of Richmond

My Lords, as the Minister predicted, I rise to speak to Amendment No. 2. I thank her very warmly for her letter of explanation and for the amendments that she has accepted. She will, of course, understand that I am still rather disappointed that she has not been able to accept Amendment No. 11B, which sought to impose the absolute requirement, because she feels that, it may encourage deliberately obstructive requests". So there will not be a requirement on police officers to record a person's property if they ask for that to be done.

Can the Minister assure the House that any reasonable request from a person to have his or her property recorded will not be ignored? That is the real thrust of what I wanted to say and I hope that she can reassure me on that point.

Baroness Walmsley

My Lords, in rising to speak to Amendment No. 1, I hope that the Minister will forgive me for returning to some of the points that I made last Wednesday in the debate on the order. The noble Baroness, understandably, did not have time to address some of my concerns on that occasion.

I should like to ask four questions in regard to the amendment. First, on the advice of which expert body are the Government bringing forward the amendment? Is it the Advisory Council on the Misuse of Drugs; the House of Commons Home Affairs Select Committee; or the Runciman committee? I do not believe that any of those bodies, having looked in detail at all the latest evidence about the use of cannabis, advised that in reclassifying cannabis as class C the power of arrest should be newly introduced for a drug in that class. If the Government have committed themselves to basing their drugs policy on expert advice and evidence, can the Minister say on what evidence this measure needs to be taken? If in the move from class B to class C cannabis is treated on the street in roughly the same way as it is treated now, what difference do the Government believe the reclassification will make?

Secondly, is the Minister satisfied that the ACPO guidelines on the presumption in favour of arrest treat all citizens equally? She will be aware from my speech on the order to reclassify in the debate last Wednesday of my concern about people with mental disabilities being treated differently from other adults and inappropriately in my opinion.

Can she say how that can possibly be in the interests of their welfare? Are not the guidelines contradictory in that respect? Can she also say how the under-18s would be treated under this new power, as she did not have time to answer my questions on that matter last Wednesday? Is she convinced that it is appropriate to arrest and take to the police station for questioning young or vulnerable people in the terms of the ACPO guidelines for the simple offence of personal possession of cannabis, without any other aggravating factors?

Thirdly, how will the police treat someone who has been discovered growing a few cannabis plants for their own use when there is no suggestion that any of the aggravating factors are present that appear in the ACPO guidelines and that would give a presumption in favour of arrest? Finally, how is it expected that the powers introduced by the amendment will cut the link between those who choose to smoke cannabis and the organised criminals who sell hard drugs and whose main objective is to lure cannabis users into using drugs such as heroin and crack cocaine?

Baroness Scotland of Asthal

My Lords, I shall deal with the question asked by the noble Baroness, Lady Harris. I am relatively confident that, when considering the amendments that we have made to the Bill, reasonable requests made in relation to the retention of material will be honoured. I made it clear in resisting the amendment tabled by the noble Baroness that we saw an opportunity for a frivolous and vexatious use of those provisions. The other two amendments give ample scope for reasonable matters to be taken into account, not least because the police will be anxious to ensure that all proper evidence is before the court and to obviate a wrongful suggestion made by defendants that in some way they had been disadvantaged because of police behaviour. There will be nothing to prevent the defendant making the point that a request was made with propriety and not acceded to. In practical terms, I believe that will do.

The noble Baroness, Lady Walmslsy, asked four questions. First, she asked upon whose advice we based the provisions, and listed four agencies that she believed might be the source. For the crafting of the advice, the Government considered the assessment of the public order needs based on the advice of the police and on what the Government believe to be the right and proper response. Noble Lords will know that government policy does not only rely on the advice of others, but derives from the analysis of what the Government themselves see as most pertinent and relevant.

The noble Baroness asked what difference the measure would make, and how under-18-year-olds would be treated. We would have to consider the underlying circumstances, which can be done only with regard to matters undertaken at the police station. We are sending out a clear message to young people under 18 that cannabis misuse remains illegal. Police enforcement will be consistent with the more structured framework for early juvenile offending, established under the Crime and Disorder Act 1998, under which a young offender can receive a reprimand, a final warning or a charge, depending on the seriousness of the offence. Following one reprimand, any further offence will lead to a final warning or charge. Any further offence following a warning will normally result in a charge being brought. After a final warning, the young offender must be referred to the youth offending team to arrange a rehabilitation programme to prevent reoffending.

Those provisions are all within the framework in which we believe that young people should be dealt with. They are not being dealt with more strictly; they are likely to receive reprimands or warnings for a first offence of cannabis possession, but the process is more formal than for persons under 18. It is important that those cases should be dealt with at the police station so that any underlying problems with the young person can be identified. Young people under 18 who receive a final warning or who are reported to the court for possession of cannabis will be referred to the local youth offending team—YOT—and are likely to have their substance misuse assessed by the YOT drugs worker, who may arrange other support when it is needed.

I have said those things on a number of occasions, although I may not have said them in direct response to the noble Baroness on the last occasion that I spoke. However, I pray in aid all that I have said before on innumerable occasions.

As for increasing class C penalties to 14 years, which will give a significant deterrent to class C dealing, I have tried to make it clear that there is a real distinction to be drawn from those who grow and/or distribute and seek to take adventitious advantage of the weakness in others by the use of cannabis. That distinction should be maintained. We have also said very clearly that we believe that a robust way of dealing with cannabis is important, because we accept that cannabis has pernicious side effects—something with which the noble Baroness may not entirely agree. We believe that our approach is a properly balanced one.

Growing cannabis is a dealing offence. Courts will have discretion in deciding what sentence to pass, depending on the circumstances. It would be quite improper for me to prescribe how the court within the framework would exercise that discretion. Of course, I take into account that mental disability is a real issue, and there are sufficient safeguards in the provisions to ensure that those who suffer from a mental disability are responded to in the most appropriate way.

I hope that I have answered the noble Baroness's questions.

On Question, amendment agreed to.

Clause 7 [Property of detained persons]:

Baroness Scotland of Asthal moved Amendment No. 2: Page 6, line 8, leave out subsection (2) and insert—

(2) For subsection (2) of that section (record of arrested person to be made as part of custody record) there is substituted—

(2) The custody officer may record or cause to be recorded all or any of the things which he ascertains under subsection (1).

(2A) In the case of an arrested person, any such record may be made as part of his custody record."

On Question, amendment agreed to.

Clause 33 [Defence disclosure]:

3.15 p.m.

Lord Ackner had given notice of his intention to move Amendment No.3: Leave out Clause 33.

The noble and learned Lord said: My Lords, I have heard it often said that time spent in reconnaissance is seldom wasted. Having inquired of the Conservative and Liberal Democrat Opposition, I understand there to be no support for my amendments, no doubt for good political reasons. Therefore, I do not propose to take up the time of the House and will not move the amendments.

[Amendment No. 3 not moved.]

Clause 34 [Notification of intention to call defence witnesses]:

[Amendment No. 4 not moved.]

Clause 35 [Notification of names of experts instructed by defendant]:

Lord Thomas of Gresford moved Amendment No. 5: Leave out Clause 35.

The noble Lord said: My Lords, although the noble and learned Lord, Lord Ackner, did not move his amendments relating to witnesses other than expert witnesses, we took the view on these Benches that the safeguards contained in the Bill deal with the problem. We are content that a defence statement should be rather fuller than it is at present, so long as it is not regarded as a pleading.

We have a different point of view about expert witnesses. If the Government's purpose is to find out whether the defence has instructed expert witnesses, there is really no problem, as in the generality of cases expert witnesses who are instructed by the defence have to co-operate with the expert witnesses of the prosecution. Generally speaking, the defence expert witnesses are examining material in the possession of the prosecution. For example, it will be necessary for a defence expert on fingerprints to have access to the fingerprints themselves, which will be in the possession of the police. Similarly, if an expert pathologist is called, he will without question consult the pathologist for the prosecution and will have access to his file and his findings. Very often, post mortems are carried out together. With DNA, too, it will be necessary for a DNA expert called by the defence to have access to material in the hands of the prosecution.

It is only in a rare case that an expert witness will not be known to the prosecution in any event. Therefore, I have no objection to the disclosure of the identity of expert witnesses to the prosecution, as it almost always happens anyway. I do, however, object to the possibility that the prosecution could in some way rely on a notice given under these provisions and should put before the jury the fact that the defence has consulted an expert whom it has not called. That would leave the jury completely open to speculation as to why the defence expert was not called. Perhaps he was not available on the day. Perhaps he agreed with the prosecution. He may not be called by the defence for all sorts of reasons. If it were possible for the prosecution in its final speech or the judge in summing up to say, "You know, members of the jury, that the defence has consulted experts, but you have not heard from them", that would be entirely wrong in principle. That is why I maintain my opposition to this clause. I beg to move.

Baroness Mallalieu

My Lords, I, too, am very concerned about this clause. One sometimes hears it said that the defence trawls around looking for an expert who will say what is wanted. That certainly is not my experience. Indeed, most defendants in criminal trials are legally aided and the legal aid authorities require considerable persuasion before they will grant legal aid for a second expert if one has already reported. I am concerned and should be grateful if the Minister could tell me what is proposed to be done with the details provided by these notices.

Experts may be instructed for a variety of reasons, but not necessarily with a view to calling them. For example, counsel may want expert advice to deal with an aspect of the case that has not been raised by the defendant but which troubles counsel. Counsel may merely wish to be reassured that there is no possible line of defence in that avenue, or he may require further detailed examination of a prosecution expert's report in order to assist him with cross-examination. So there may be experts, perfectly properly instructed, who are not intended ultimately to be called at trial. Will the Minister please tell me what is proposed to be done with the details when they are handed to the prosecution?

Lord Renton

My Lords, I wish to support this amendment. I do so because in many cases the expert witness will be a medical man. I happen to be the son of a medical man, and I know what excessively hard and busy lives they lead. It is often difficult to get hold of a medical man who may have the necessary expert evidence to give until the last minute—from the point of view of the defence. It would be a travesty of justice if we prevented the accused relying on medical evidence that he finds late in the day simply because he is required by statute to give advance notice of the medical evidence by the expert which has to be given. I think that that would be unfair on the accused, so I support the amendment.

Lord Ackner

My Lords, I, too, should like to support the observations of the noble Lord. My recollection when summing up to a jury was to tell them not to speculate. This seems to me to invite speculation, and that surely must be wrong.

Lord Kingsland

My Lords, I rise to support the amendment moved by the noble Lord, Lord Thomas of Gresford. We have already spoken to it both in Committee and on Report; there is no difference between the noble Lord and ourselves on the issue that he raised. In our view, the crucial distinction is between, on the one hand, the provision of names in a notice and, on the other hand, the reference by a judge to those names in the course of the proceedings. I hope that the noble and learned Lord the Attorney-General will be able to reassure us on those grounds.

The Attorney-General (Lord Goldsmith)

My Lords, as the noble Lord, Lord Kingsland, said, this clause has been debated extensively—on no fewer than three occasions, I think; indeed, we had a Division on it in Committee. I hope that in the light of the concerns previously expressed about this, and those that have been expressed today, it might help the House if I set out what the clause does and does not do.

Clause 35 will insert a new Section 60 into the Criminal Procedure and Investigations Act 1996. It requires the defence to notify the court and the prosecutor in advance of the trial of any expert consulted by the defence but whom the defence does not intend to call as a witness. There is no requirement to disclose any report completed by the expert for the defence. That may reassure the noble Lord, Lord Renton.

Clause 39, which introduces a revised Section 11 of the Criminal Procedure and Investigations Act 1996, deals with faults in defence disclosure generally. However, in the case of the notification of defence experts not called as witnesses, the prosecution will not be able to invite the jury to draw an adverse inference or otherwise comment to the jury on either the failure of the defence to comply with this provision or the fact that an expert has been consulted and not used as a witness.

I hope that that clear statement gives the reassurance for which noble Lords were looking as to the limits to which this clause could be put and particularly what it could not be used to do. I would add only this. We accept that the problem to which this is directed would affect only a small number of cases where the defence is self-funded. I have accepted that proposition before—that legal aid acts as an inhibitor. However, there will be some self-funded defendants who are well financed—which, sadly, includes some who have accrued that wealth from criminal activity. In those cases this will be a modest but helpful provision to add to the defence disclosures.

I hope, therefore, in the light of that assurance, that the noble Lord will not feel it necessary to press his amendment.

Lord Thomas of Gresford

My Lords, I am very grateful to the noble and learned Lord the Attorney-General for that clear statement which can leave no one in any doubt about what this provision means. I know that there have been anxious deliberations about this clause following our earlier debates. I thank the noble and learned Lord for participating in those discussions. Having regard to that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 [Further provisions about defence disclosure]:

[Amendment No. 6 not moved.]

Clause 39 [Faults in defence disclosure]:

[Amendment No. 7 not moved.]

Clause 49 [Further provision about right of appeal mentioned in section 50(l)]:

Lord Goldsmith moved Amendment No. 8: Leave out Clause 49.

The noble and learned Lord said: My Lords, this group of amendments refines the prosecution appeal rights already set out in the Bill. Before I go on to discuss the substance of this group, I should first like to thank the Opposition for allowing us to table these amendments again for the consideration of the House. That we are now doing so is the result of extensive discussions with the Opposition Front Bench. I am most grateful to them for their readiness to meet and go through these matters. I hope very much that in the intervening period we have been able to allay their concerns about the provisions.

While similar amendments were not approved by the House on Report I can confirm that it is entirely proper for the present amendments to be introduced at this stage. We do so on the basis that we discussed and addressed with the Opposition Front Bench their concerns about the overall scheme. They have confirmed that they did not have, and continue not to have, objections to these essentially refining amendments. The House authorities have confirmed that they also are content that we can proceed in these circumstances.

On the substance, I should note in passing that the rubric of Clauses 49 and 50 seems to have suffered an attack of the gremlins. I am assured by those responsible for these matters that the faulty wording will be rectified before the Bill progresses to its next stage.

Much of the substance of these amendments merely refines provisions that are already in the Bill. In a few instances substantive changes of detail are made, but I have already provided a full explanation of the changes in question in an earlier debate and I shall not detain your Lordships by tediously repeating explanations with which the House will already be familiar. My earlier comments still hold good. However, I shall draw your Lordships' attention to the new change in Amendment No. 44. The amendment specifies the conditions under which the Court of Appeal can overturn a judge's ruling under the Bill. The rule is a general one; it will apply whether the ruling is a formally terminating ruling, a de facto terminating ruling or an evidentiary ruling. It will prevent the Court of Appeal overturning a judge's ruling unless the ruling is wrong in law, involves an error of law or principle or is a ruling which it was not reasonable for the judge to have made.

Prior to this amendment the Bill was silent on the framework within which the Court of Appeal will operate—a feature of the provisions which attracted some criticism in Committee and on Report. We listened carefully to those concerns and this new clause now sets out a framework.

The vast majority of practitioners and commentators who have studied this area are firmly of the opinion that a prosecution appeal against the judge's terminating, or de facto terminating, ruling is just, equitable and long overdue. It is a matter of serious concern that defendants have had a right of appeal against their conviction for almost a century while the prosecution has had no right to challenge a judge-ordered acquittal, no matter how manifestly unjust such a ruling may be on rare occasions.

These provisions will significantly increase public confidence in the administration of justice. I am proud to have had the privilege of taking them through the House. I beg to move.

3.30 p.m.

Lord Kingsland

My Lords, I in turn should like to thank the noble and learned Lord for being prepared to engage in a number of discussions between Report and Third Reading, which I trust your Lordships will agree have led to a creative conclusion.

I accept the noble and learned Lord's view that in principle there is no difference between terminating rulings and evidentiary rulings and that, where appropriate, a right of prosecution appeal ought to be allowed. Our concerns about this were twofold: first, the likely volume of appeals that would ensue from such an initiative; and, secondly, the danger that some of those appeals would lead simply to the Court of Appeal second-guessing the proper exercise of discretion of the trial judge.

As the noble and learned Lord the Attorney-General rightly said, Amendment No. 44 resolves both those problems. It is a discipline on the volume of prosecution appeals to the Court of Appeal Criminal Division. At the same time, the defined circumstances which justify an appeal are wholly proper: that the ruling was wrong in law or, that the ruling involved an error of law or principle, or… that the ruling was a ruling that it was not reasonable for the judge to have made". Those are plainly circumstances in which a prosecution appeal is appropriate. From these Opposition Benches I endorse the amendments proposed by the noble and learned Lord.

Lord Thomas of Gresford

My Lords, from these Benches I repeat that we are grateful to the noble and learned Lord for his discussions and for having listened to the concerns that we expressed in Committee and on Report. I think I said at the beginning that we were not opposed to prosecution appeals in principle; it was the practicalities that concerned us. Amendment No. 44 does a great deal to answer those concerns. It will limit the number of times that a prosecutor who has lost will, in a fit of pique, go to the Court of Appeal, and it will mean that the Court of Appeal will not have to read through reams and reams of material in order to second-guess the trial judge's decision. We welcome the provisions and endorse them.

Lord Goldsmith

My Lords, I am grateful for what both noble Lords have said. There is nothing more that I need to say at this stage. The noble Lord, Lord Thomas, may be holding out too rosy a promise to the Court of Appeal that there will not be occasions when it will have to read a lot of material, but now is not the occasion to go into that debate.

On Question, amendment agreed to.

Clause 50 [Further provision about right of appeal mentioned in section 50(3)]:

Lord Goldsmith moved Amendments Nos. 9 to 11: Page 34, line 5, leave out subsections (1) to (4) and insert—

1. "(1) In relation to a trial on indictment, the prosecution is to have the rights of appeal for which provision is made by this Part.
2. (2) But the prosecution is to have no right of appeal under this Part in respect of—
1. (a) a ruling that a jury be discharged, or
2. (b) a ruling from which an appeal lies to the Court of Appeal by virtue of any other enactment."

Page 34, line 23, leave out "who made the ruling

Page 34, line 25, leave out subsections (7) and (8).

On Question, amendments agreed to.

Clause 51 [Appeals against terminating rulings]:

Lord Goldsmith moved Amendments Nos. 12 to 19: Page 34, line 35, leave out from "judge" to end of line 36 and insert "makes a ruling in relation to a trial on indictment at an applicable time and the ruling relates to one or more offences included in the indictment.

(1A) The prosecution may appeal in respect of the ruling in accordance with this section.

Page 35, line 1, leave out "it requests such an adjournment" and insert "such an adjournment is granted

Page 35, line 4, leave out "must" and insert "may

Page 35, line 9, at end insert—

• (5A) Where—
1. (a) the ruling is a ruling that there is no case to answer, and
2. (b) the prosecution, at the same time that it informs the court in accordance with subsection (3) that it intends to appeal, nominates one or more other rulings which have been made by a judge in relation to the trial on indictment at an applicable time and which relate to the offence or offences which are the subject of the appeal,
• that other ruling, or those other rulings, are also to be treated as the subject of the appeal.
• (5B) The prosecution may not inform the court in accordance with subsection (3) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in subsection (5C) is fulfilled.
• (5C) Those conditions are—
1. (a) that leave to appeal to the Court of Appeal is not obtained, and
2. (b) that the appeal is abandoned before it is determined by the Court of Appeal."

Page 35, line 11, after "ruling" insert "mentioned in subsection (1)

Page 35, line 15, leave out "and

Page 35, line 16, at end insert "and

(c) if he does so, any such steps are also to have no effect.

Page 35, line 16, at end insert—

(8) Where the prosecution has informed the court of its agreement under subsection (5B) and either of the conditions mentioned in subsection (5C) is fulfilled, the judge or the Court of Appeal must order that the defendant in relation to the offence or each offence concerned be acquitted of that offence.

(9) In this section "applicable time", in relation to a trial on indictment, means any time (whether before or after the commencement of the trial) before the start of the judge's summing-up to the jury.

On Question, amendments agreed to.

Clause 52 [Appeals against certain other rulings]:

Lord Goldsmith moved Amendment No. 20: Leave out Clause 52.

On Question, amendment agreed to

Clause 53 [Expedited and non-expedited appeals]:

Lord Goldsmith moved Amendments Nos. 21 and 22: Page 36, line 2, leave out "or 52(2) Page 36, line 3, leave out "against a ruling

On Question, amendments agreed to.

Clause 54 [Continuation of proceedings for offences not affected by ruling]:

Lord Goldsmith moved Amendments Nos. 23 and 24: Page 36, line 15, leave out "or 52(2) Page 36, line 15, leave out "against a ruling

On Question, amendments agreed to.

Clause 55 [Determination of appeal by Court of Appeal]:

Lord Goldsmith moved Amendments Nos. 25 to 38:

Page 36, line 19, leave out "this Part" and insert "section 51

Page 36, leave out line 20 and insert "any ruling to which the appeal relates

Page 36, line 20, at end insert—

(1A) Subsections (2) to (4) apply where the appeal relates to a single ruling.

Page 36. line 21, leave out "a" and insert "the

Page 36, line 23, leave out first "the" and insert "that

Page 36, line 23, leave out second "the" and insert "that

Page 36, line 24, leave out "a" and insert "the

Page 36, line 27, leave out first "the" and insert "that

Page 36, line 29, leave out "fresh proceedings may be instituted" and insert "a fresh trial may take place

Page 36, line 30, leave out "the" and insert "that

Page 36, line 31, leave out second "the" and insert "that

Page 36, line 31, leave out third "the" and insert "that

Page 36, line 35, at end insert—

(4A) Subsections (4B) and (4C) apply where the appeal relates to a ruling that there is no case to answer and one or more other rulings.

(4B) Where the Court of Appeal confirms the ruling that there is no case to answer, it must, in respect of the offence or each offence which is the subject of the appeal, order that the defendant in relation to that offence be acquitted of that offence.

(4C) Where the Court of Appeal reverses or varies the ruling that there is no case to answer, it must in respect of the offence or each offence which is the subject of the appeal, make any of the orders mentioned in subsection (3)(a) to (c) (but subject to subsection (4)).

Page 36, line 36, leave out subsection (5).

On Question, amendments agreed to.

Lord Goldsmith moved Amendment No. 39: After Clause 55, insert the following new clause—

"APPEALS IN RESPECT OF EVIDENTIARY RULINGS

1. (1) The prosecution may, in accordance with this section and section (Condition that evidentiary ruling significantly weakens prosecution case), appeal in respect of—
1. (a) a single qualifying evidentiary ruling, or
2. (b) two or more qualifying evidentiary rulings.
1786
2. (2) A "qualifying evidentiary ruling" is an evidentiary ruling of a judge in relation to a trial on indictment which is made at any time (whether before or after the commencement of the trial) before the opening of the case for the defence.
3. (3) The prosecution may not appeal in respect of a single qualifying evidentiary ruling unless the ruling relates to one or more qualifying offences (whether or not it relates to any other offence).
4. (4) The prosecution may not appeal in respect of two or more qualifying evidentiary rulings unless each ruling relates to one or more qualifying offences (whether or not it relates to any other offence).
5. (5) If the prosecution intends to appeal under this section, it must before the opening of the case for the defence inform the court—
1. (a) of its intention to do so, and
2. (b) of the ruling or rulings to which the appeal relates
6. (6) In respect of the ruling, or each ruling, to which the appeal relates—
1. (a) the qualifying offence, or at least one of the qualifying offences, to which the ruling relates must be the subject of the appeal, and
2. (b) any other offence to which the ruling relates may, but need not, be the subject of the appeal.
7. (7) The prosecution must, at the same time that it informs the court in accordance with subsection (5), inform the court of the offence or offences which are the subject of the appeal.
8. (8) For the purposes of this section, the case for the defence opens when, after the conclusion of the prosecution evidence, the earliest of the following events occurs—
1. (a) evidence begins to be adduced by or on behalf of a defendant,
2. (b) it is indicated to the court that no evidence will be adduced by or on behalf of a defendant,
3. (c) a defendant's case is opened, as permitted by section 2 of the Criminal Procedure Act 1865 (c. 18).
9. (9) In this section—
• "evidentiary ruling" means a ruling which relates to the admissibility or exclusion of any prosecution evidence,
• "qualifying offence" means an offence described in Part I of Schedule (Qualifying offences for the purposes of section (Appeals in respect of evidentiary rulings)).
10. (10) The Secretary of State may by order amend that Part by doing any one or more of the following—
1. (a) adding a description of offence,
2. (b) removing a description of offence for the lime being included,
3. (c) modifying a description of offence for the time being included.
11. (11) Nothing in this section affects the right of the prosecution to appeal in respect of an evidentiary ruling under section 51."

The noble and learned Lord said: My Lords, this second group of government amendments is closely connected with those that the House has just accepted. This is the set of amendments that introduces a prosecution right of appeal against a non-terminating evidentiary ruling or series of evidentiary rulings. Once again I am grateful to the Opposition for agreeing to the amendments being brought forward at this stage. In the summer I signalled that we had it in mind to bring them forward. They were tabled on Report but not in the event moved. In fact, they have been under consideration for some time. We are bringing them forward now because we believe that this additional right of appeal is an important part of the prosecution appeals package as a whole.

The Bill gives the prosecution a right of appeal against a terminating ruling. This right of appeal will not always be enough. There are situations in criminal trials where an evidentiary ruling has a significant impact for the worse on a prosecution case but is not fatal to it. As the House may well recall, the lack of a right of appeal against rulings of this kind attracted some adverse comment in Bishop Sentamu's report on the Damilola Taylor case. In our view whether a case is high profile or not, there is a clear need for arrangements to have such rulings reviewed by the Court of Appeal. In the absence of such a right, a perception of injustice may arise which cannot properly be allayed. The amendments will allow rulings of this kind to be tested where they cannot be at present and are in the interests of justice.

I should make the following comment as I have never previously put this on the record. It may be helpful and for the convenience of the House to do so. So far as numbers of cases are concerned, we have introduced a range of measures here to limit the number of appeals that there may be. I wish to identify them. First, an appeal against an evidentiary ruling or rulings in a series will be allowed only where the ruling or rulings are made before the defence case opens. That timing is more restrictive than that now applicable to appeals against a single terminating ruling. Secondly, an appeal against an evidentiary ruling will be available only in relation to a qualifying offence as set out in the schedule. That schedule has intentionally been constructed so as to include only serious offences. Thirdly, the prosecution must obtain leave to appeal from either the judge or the Court of Appeal before it can appeal. Fourthly, that leave may be granted only if the relevant condition is met. That relevant condition is that the evidentiary ruling or rulings, significantly weakens the prosecution case".

Fifthly, I anticipate that the guidance which the Director of Public Prosecutions will issue to prosecutors on the operation of the prosecution appeals regime as a whole will include specific guidance on evidentiary appeals. Finally—this matter arises from detailed discussions with the senior judiciary in the Court of Appeal—the evidentiary appeal regime will be implemented later than, and separately from, the terminating rulings appeals. That will give an opportunity to see how the terminating appeal works in practice and give us advance warning of any unexpected resource implications of the evidentiary regime.

I hope that your Lordships will agree that, taken together, those amendments represent a formidable battery of safeguards. The detail of the appeals is well set out in the amendments. I am happy to answer any questions which noble Lords may have but, subject to those questions, I hope that these provisions will commend themselves to the House. I beg to move.

Lord Kingsland

My Lords, once again I am most grateful to the noble and learned Lord the Attorney-General for the way in which he has introduced the new provisions, which, as he rightly said, were not tabled until Report. I entirely agree that the precautionary measures that he has introduced to make sure that we learn from the development of the law on terminating rulings first, before we move on to implement evidential rulings, are prudent. I do not need to speak to Amendment No. 44, because it covers both terminating and evidential rulings. In those circumstances, I can complete my observations.

Lord Thomas of Gresford

My Lords, I entirely agree with the views expressed by the noble Lord, Lord Kingsland, and have nothing to add.

Lord Goldsmith

My Lords, I am grateful to noble Lords who have spoken.

On Question, amendment agreed to.

Lord Goldsmith moved Amendments Nos. 40 to 44: After Clause 55. insert the following new clause—

"CONDITION THAT EVIDENTIARY RULING SIGNIFICANTLY WEAKENS PROSECUTION CASE

1. (1) Leave to appeal may not be given in relation to an appeal under section (Appeals in respect of evidentiary rulings) unless the judge or, as the case may be, the Court of Appeal is satisfied that the relevant condition is fulfilled.
2. (2) In relation to an appeal in respect of a single qualifying evidentiary ruling, the relevant condition is that the ruling significantly weakens the prosecution's case in relation to the offence or offences which are the subject of the appeal.
3. (3) In relation to an appeal in respect of two or more qualifying evidentiary rulings, the relevant condition is that the rulings taken together significantly weaken the prosecution's case in relation to the offence or offences which are the subject of the appeal."

After Clause 55, insert the following new clause—

"EXPEDITED AND NON-EXPEDITED APPEALS

1. (1) Where the prosecution informs the court in accordance with section (Appeals in respect of evidentiary rulings)(5), the judge must decide whether or not the appeal should be expedited.
2. (2) If the judge decides that the appeal should be expedited, he may order an adjournment.
3. (3) If the judge decides that the appeal should not be expedited, he may—
1. (a) order an adjournment, or
2. (b) discharge the jury (if one has been sworn).
4. (4) If he decides that the appeal should be expedited, he or the Court of Appeal may subsequently reverse that decision and. if it is reversed, the judge may act as mentioned in subsection (3)(a) or (b)."

After Clause 55, insert the following new clause—

"CONTINUATION OF PROCEEDINGS FOR OFFENCES NOT AFFECTED BY RULING

1. (1) This section applies where the prosecution informs the court in accordance with section (Appeals in respect of evidentiary rulings)(5).
2. (2) Proceedings may be continued in respect of any offence which is not the subject of the appeal."

After Clause 55, insert the following new clause—

"DETERMINATION OF APPEAL BY COURT OF APPEAL

1. (1) On an appeal under section (Appeals in respect of evidentiary rulings), the Court of Appeal may confirm, reverse or vary any ruling to which the appeal relates.
1789
2. (2) In addition, the Court of Appeal must, in respect of the offence or each offence which is the subject of the appeal, do any of the following—
1. (a) order that proceedings for that offence be resumed in the Crown Court,
2. (b) order that a fresh trial may take place in the Crown Court for that offence,
3. (c) order that the defendant in relation to that offence be acquitted of that offence.
3. (3) But no order may be made under subsection (2)(c) in respect of an offence unless the prosecution has indicated that it does not intend to continue with the prosecution of that offence."

After Clause 55, insert the following new clause—

"REVERSAL OF RULINGS

The Court of Appeal may not reverse a ruling on an appeal under this Part unless it is satisfied—

1. (a) that the ruling was wrong in law,
2. (b) that the ruling involved an error of law or principle, or
3. (c) that the ruling was a ruling that it was not reasonable for the judge to have made."

On Question, amendments agreed to.

Clause 59 [Restrictions on reporting]:

Lord Goldsmith moved Amendments Nos. 45 to 57:

Page 37, line 29, leave out "52 or

Page 37, line 29, at end insert "(Appeals in respect of evidentiary rulings), (Condition that evidentiary ruling significantly weakens prosecution case) or (Expedited and non-expedited appeals),

Page 37, line 30, leave out "in relation to a ruling

Page 37, line 30, leave out from first "Part" to end of line and insert—

(ba) an appeal under Part 2 of the 1968 Act in relation to an appeal under this Part,

Page 37, line 32, leave out from second "to" tc end of line 33 and insert "an appeal mentioned in paragraph (b) or (ba)

Page 37, line 34, leave out "who made the ruling

Page 37, line 36, leave out "52 or

Page 37, line 36, after "53," insert "(Appeals in respect of evidentiary rulings), (Condition that evidentiary ruling significantly weakens prosecution case) or (Expedited and non-expedited appeals),

Page 38, line 24, leave out "52 or

Page 38, line 24, at end insert "(Appeals in respect of evidentiary rulings), (Condition that evidentiary ruling significantly weakens prosecution case) or (Expedited and non-expedited appeals),

Page 38, line 25, leave out "in relation to a ruling

Page 38, line 25, leave out from first "Part" to end of line and insert—

(ba) an appeal under Part 2 of the 1968 Act in relation to an appeal under this Part,

Page 38, line 27, leave out from second "to" to end of line 28 and insert "an appeal mentioned in paragraph (b) or (ba)

On Question, amendments agreed to.

Clause 62 [Interpretation of Part 8]:

Lord Goldsmith moved Amendments Nos. 58 to 61:

Page 40, line 26, at end insert—

"qualifying evidentiary ruling" is to be construed in accordance with section (Appeals in respect of evidentiary rulings)(2),

the relevant condition" is to be construed in accordance with section (Condition that evidentiary ruling significantly weakens prosecution case)(2) and (3).

Page 40, leave out line 28 and insert—

"ruling" includes a decision, determination, direction, finding, notice, order, refusal, rejection or requirement,

Page 40, line 29, at end insert—

(1A) Any reference in this Part (other than section (Rules of court)(2)(c)) to a judge is a reference to a judge of the Crown Court.

(1B) There is to be no right of appeal under this Part in respect of a ruling in relation to which the prosecution has previously informed the court of its intention to appeal under either section 51(3) or (Appeals in respect of evidentiary rulings)(5).

Page 40, line 34, leave out subsection (3).

On Question, amendments agreed to.

Clause 72 [Retrial]:

Baroness Scotland of Asthal moved Amendment No. 62: Page 47, line 22, at end insert—

( ) all the parties to the trial agree otherwise,

The noble Baroness said: My Lords, the purpose of the amendments is to enable a deposition or a trial transcript to be used as evidence in retrials when all the parties are agreed. They are small and technical amendments. I beg to move.

On Question, amendment agreed to.

Clause 84 [Application of Part 9 to Northern Ireland]:

Baroness Scotland of Asthal moved Amendment No. 63: Page 56, line 14, leave out "the words from "unless" to the end" and insert "paragraphs (a) and (b)

On Question, amendment agreed to.

Clause 86 [Evidence of bad character]:

Lord Kingsland moved Amendment No. 64: Page 64, leave out line 44 and insert "82A of the Police and Criminal Evidence Act 1984 (c. 60).

The noble Lord said: My Lords, this drafting amendment is consequential on the vote of your Lordships' House on Report upon the section of Part 10 that deals with bad character. I do not think that I need add anything further. It is a purely procedural matter. I beg to move.

Baroness Scotland of Asthal

My Lords, we have had extensive debates on the subject of bad character both in Committee and on Report, and it is obviously not the time to repeat those debates. I accept that the amendment is necessary to tidy up the scheme introduced by the House on Report and does not alter the substance of that scheme. On that basis, I do not intend to resist the amendment.

I would like to make it clear that the issue of bad character evidence will be considered further in another place when it considers the amendments made by this House. Our acceptance of this technical amendment does not mean that the Government are persuaded that the scheme adopted on Report is the appropriate scheme to regulate the admission of bad character evidence. However, as I have said, the debate will now be continued in another place, so I will not resist the amendment.

Lord Kingsland

My Lords, for once the noble Baroness's observations about bad character have not taken me by surprise.

On Question, amendment agreed to.

3.45 p.m.

Clause 93 [Multiple hearsay]:

Baroness Scotland of Asthal moved Amendment No. 65: Leave out Clause 93 and insert the following new Clause—

Additional requirement for admissibility of multiple hearsay

1. (1) A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless—
1. (a) either of the statements is admissible under section 89, 91 or 92,
2. (b) all parties to the proceedings so agree, or
3. (c) the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose.
2. (2) In this section "hearsay statement" means a statement, not made in oral evidence, that is relied on as evidence of a matter stated in it.".

The noble Baroness said: My Lords, we have debated the subject of multiple hearsay both in Committee and on Report, and a certain amount of concern has been raised about Clause 93, which regulates the admission of multiple hearsay. There was particular concern that the clause was not sufficiently clear about the circumstances in which multiple hearsay evidence should be admitted. On Report, I informed the House of our intention to bring an amended clause before the House at Third Reading, and that is what I now do.

We all agree that there are dangers in admitting multiple hearsay evidence generally and that it should be admitted only in certain limited circumstances. We are not advocating that rumour and so-called tittle-tattle should be admitted as evidence. However, we think it clear, as was acknowledged on Report by the noble Lord, Lord Hodgson, that there are circumstances where multiple hearsay should be admitted. We spoke on Report, for example, about how it is important that multiple hearsay contained in business documents should continue to be admissible, as is the case under the current law.

The new clause proposed in the amendment seeks to set out clearly the circumstances where multiple hearsay can be admitted. Its subsection (1)(a) provides for multiple hearsay to be admissible where one of the statements is admissible under Clauses 89, 91 or 92. That is where it includes a business statement and is therefore inherently reliable, and where it includes a previous statement of a witness who is giving evidence in court and can therefore be questioned about the statement. Subsection (1)(b) covers evidence where all parties agree that the evidence should be given. In those circumstances, there is of course no reason to think that the evidence should not properly be given.

However, there may also be cases not falling within those narrow circumstances where multiple hearsay should be admitted. In those circumstances where it is important for the evidence to be given, the hearsay rules should not preclude its admission. We therefore have retained a narrow discretion to admit multiple hearsay evidence that falls without proposed new subsection (l)(a) and (b) but should nevertheless be admissible.

Of course, such circumstances will be exceptional, and the test in proposed new subsection (l)(c) is therefore worded to reflect that a substantial threshold should be met before such evidence can be given. The test is worded so that such evidence can be given where the court is satisfied that the value of the evidence in question, taking into account how reliable the statement appears to be, is so high that the interests of justice require the later statement to be admissible.

It may assist the House if I outline an example of a situation where it may be appropriate to use the discretion to admit multiple hearsay evidence. Let us take the case involving rape of an 80 year-old lady who suffers a serious stroke shortly afterwards and cannot tell the police what has happened to her. However, let us say that before losing consciousness she told the doctor what happened to her, and that she could not identify her attacker. The doctor immediately writes that all down, but is working abroad by the time of the trial.

One key issue in the case is identity, on which the 80 year-old's evidence can shed no light. However, the prosecution has good independent evidence to establish identity, but no medical evidence showing injuries to establish that she was attacked. Her statement is, therefore, vital to establish another key issue—that she was raped. But it is multiple hearsay, being an out-of-court statement by the doctor of what she said. In such circumstances, it would be quite wrong for the rules of evidence to bar the courts from admitting that evidence.

That is not a far-fetched scenario, as the courts in New Zealand dealt with a similar situation involving an out-of-court statement in the case of Hovell. It highlights the need for some discretion to cover exceptional cases. One of the central criticisms of the hearsay rule under the current law is that it is inflexible and can in some circumstances prevent the court admitting evidence when it is clearly in the interests of justice to do so. The discretion will provide a degree of flexibility within the hearsay rules that is much needed and much called for.

In drawing up the revised clause, we have listened to concerns in the House on the subject that multiple hearsay should not generally be admissible. The revised clause will ensure that that is not the case. The proposed new clause strikes the right balance between admitting evidence where it is appropriate in exceptional cases to be given, and ensuring sufficient safeguards against the admission of unreliable evidence. The noble Lord, Lord Thomas of Gresford, and I have debated a number of other examples, but I hope that we will not have to entertain noble Lords with some of them from that discourse today. I have given one example to delight him.

In the light of my comments, I hope that the revised clause will be accepted by the House. I beg to move.

Baroness Anelay of St Johns

My Lords, it might be helpful if I make it clear that we support the amendment. The issue of multiple hearsay has a long history of debate in both Houses. When the Bill left another place, we made it clear that we thought that the clause had no place in the Bill. We have changed our position on the basis of very constructive work carried out over the past few weeks between those on the Government and Opposition Benches. I thank not only the Minister but the noble Lord, Lord Thomas of Gresford, and his colleagues for the work that they have put in on the matter.

It is now the case that we accept that although the drafting could be improved—when could it not because, for example, it is difficult to know what the value of the evidence might be—we shall not cavil at that. We accept the Minister's point that this is a narrow discretion in subsection (l)(c). We are trying to narrow down the circumstances to exceptional circumstances in which the provision should come into operation, when paragraphs (a) and (b) have not been operative. On this occasion, we are content with the amendment.

Lord Thomas of Gresford

My Lords, the Minister delighted me with the example that she gave in circumstances where I had challenged her to try to find any situation in which multiple hearsay could be used. It was a fairly good example, if I may respectfully say so. I am equally delighted with the way in which the clause has been changed. It has been the subject of considerable anguish on this side of the House, and in the many discussions among all three of us we made a great deal of progress. In the narrow discretion that is now given to admit hearsay evidence, we believe that we have arrived at the correct solution.

Lord Renton

My Lords, I somewhat reluctantly support the clause, but I am bound to point out that in years to come much will depend on the interpretation that the courts give to it. It may be valuable, but I suggest that the Government keep a close watch on how it is used in practice.

I must confess that when I was in practice and sitting judicially from time to time, hearsay evidence was ruled out completely. However, when a few years ago it was made admissible in certain circumstances, I accepted that. But now when we an: dealing with multiple hearsay—hearsay upon hearsay—we must be extremely careful. Although I have looked at the drafting of the new clause and hope that it will work in a sensible way, I believe that it could be abused. I hope that the Government will keep a careful watch on the way that it works.

Baroness Scotland of Asthal

My Lords, I thank the noble Baroness, Lady Anelay of St Johns, and the noble Lord, Lord Thomas of Gresford, for the extensive discussions we had on this issue. They are right in saying that we were all seeking to cure a mischief. We all identified that mischief and we wanted to find something which would be fit for purpose and could be used in the interests of justice on a. restricted basis.

I can reassure the noble Lord, Lord Renton, that the caution he asks us to exercise was evidenced throughout our discourse and we three believe that we have alighted upon a provision with which we are content, in as much as it will do justice.

On Question, amendment agreed to.

Clause 103 [Evidence at retrial]:

Baroness Scotland of Asthal moved Amendment No. 66: Page 79, line 17, at end insert—

( ) all the parties to the retrial agree otherwise;

On Question, amendment agreed to.

Lord Lucas moved Amendment No. 67: After Clause 118, insert the following new clause—

"INCREASE IN SENTENCES FOR AGGRAVATION RELATED TO OCCUPATION

1. (1) This section applies where the court is considering the seriousness of an offence committed in any of the circumstances mentioned in subsection (2).
2. (2) Those circumstances are—
1. (a) that, at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on the legitimate occupation of the victim, or
2. (b) that the offence is motivated (wholly or partly)—
1. (i) by hostility towards persons who have a particular legitimate occupation, or
2. (ii) by hostility towards that occupation.
3. (3) The court—
1. (a) must treat the fact that the offence was committed in any of those circumstances as an aggravating factor, and
2. (b) must state in open court that the offence was committed in such circumstances.
4. (4) It is immaterial for the purposes of paragraph (a) or (b) of subsection (2) whether or not the offender's hostility is also based, to any extent, on any other factor not mentioned in that paragraph.
5. (5) In this section "legitimate occupation" includes any legal employment, trade or pastime."

The noble Lord said: My Lords, this amendment follows from a discussion we had at the Report stage on what is now Clause 118. It relates to the introduction of an increase in sentences for crimes in which the disability or sexual orientation of the victims were the motivation. The principal argument then made was that there should not be an increase in sentences related to such specific circumstances, but that we should make it much more general, if not totally general, that where a crime is intended to cause fear to a class of people beyond the immediate victims, that fact should be taken into account in the sentencing.

The particular instance on which we concentrated was the many scientists, researchers and others, down to laboratory technicians, who are in daily fear for their safety and that of their families as a result of the activities of the animal rights activists. The Minister seemed to prefer limiting the provision to individual circumstances; to wish there to be a significant period and volume of suffering on behalf of some identifiable group in society, rather than making it a general crime. She preferred that there should be some established misery or mischief which then required to be dealt with.

I have cast this clause in the mould of Clause 118 with a view to tackling the particular mischief that is being done by the animal rights activists. As a member of the committee of inquiry into the legislation on scientific procedures on animals, I saw that such mischief was causing a damaging reaction among scientists as a whole. Few are prepared to speak out about what they are doing and few are prepared to admit public scrutiny into what they do. We lose a great deal of contact and understanding of science in that way and we lose the ability reasonably to criticise what people are doing on our behalf. That is all because of the activities of a small number of people who are determined to spread terror in the lives of ordinary people—those who, almost without exception, are intent on doing good for the rest of us and whose activities the vast majority of us support.

It is not acceptable that we do not remedy that ill when we are prepared to remedy the ill of crimes motivated by someone's disability. I have never come across that, although I have frequently come across people who are terrorised because they are involved with animals. It has been going on a long time and it is extremely painful. It is slowly doing the country a great deal of damage because this is becoming a difficult place in which to conduct pharmaceutical research. It is also doing a great deal of damage to society that it should be losing touch with an important moral aspect of the way we choose to treat animals. It is shrouded in secrecy because anything that comes out in the public domain is likely to result in attacks on individuals.

I would like to see the Government taking steps to remedy the situation. If the amendment offers them the opportunity to do so in their preferred manner, I would be delighted if they would take a step back and say that they want to look at it as a general circumstance in which sentences should be increased. However, it is tabled in response to what the Minister said on Report. I suspect that we have left it late in the day to succeed on this occasion, but if I fail I shall certainly return to the matter in the next criminal justice Bill—and I am confident that that will be quite soon. I beg to move.

Lord Dholakia

My Lords, I thank the noble Lord, Lord Lucas, who was kind enough to draw my attention to his amendment on this matter. It is in line with the amendment moved on Report, when the Minister was kind enough to incorporate our suggestion as part of the Government's amendment.

As one who succeeded in convincing the Government on the matter of aggravation based on race, gender or disability of any kind, it would follow logically that aggravation based on hostility to one's employment must merit some consideration. I am aware that aggravation based on race, gender or disability carries weight because one cannot change any one of those factors. That may not be the same in the case of employment.

However, the noble Lord, Lord Lucas, has identified an issue which merits consideration. It would be helpful to know whether the courts have adequate powers to deal with those who engage in activities, often involving violence, because of their occupation. There are many occupations with which we may disagree but, if they are legitimate, those undertaking them must receive the state's protection. How can we ensure that that is the case in relation to the activities mentioned by the noble Lord, Lord Lucas? Can the Minister tell us whether the existing law provides a higher tariff to deal with what we describe as some of the "drawbacks" for people involved in such activities?

4 p.m.

Baroness Anelay of St Johns

My Lords, I am grateful to my noble friend Lord Lucas for bringing forward this amendment. As he said, it is a natural progression from the amendments tabled by the Government on Report in response to points raised earlier in this House. I recall that at that time the Minister was very careful to point out that the amendments which she moved on that occasion might tend to be an "open sesame" to other people, who might find that other categories of persons should also properly be given the same protection. My noble friend was right to draw attention to that.

The noble Lord, Lord Dholakia, questioned whether those people were in the same category as those who cannot change what they are by way of their gender, sexuality or race. I believe he is right to say that we need a full debate on these matters. One could argue, too, that it would be completely wrong for someone to have to change his occupation because of an illegal activity against him. In the past, the Government have maintained a robust stance on the matter of intimidation of those who carry out a lawful occupation. I fully anticipate that the Minister will repeat that commitment today.

My noble friend has raised an important matter. I welcome the fact that, in moving this amendment, he will trigger a full debate over the coming months. Like him, I rather suspect that waiting in the wings may be a government Bill which will be a perfect vehicle for that debate.

Baroness Scotland of Asthal

My Lords, I hope that the noble Baroness and the noble Lord will be disappointed in that there will be no passing bus upon which they can leap. As your Lordships know, on Report in the Lords, the Government amended the Bill to extend the current statutory duty on sentencers to increase sentences for offences aggravated by the victim's race and religion so that offences aggravated by hostility towards the victim because of his or her sexual orientation or disability are also included.

In moving those amendments, I made it clear that we had been satisfied that there were data upon which we could operate which justified such a change. It was with pleasure that we were able to seek to address an ill which had been substantiated in such a clear way. The amendment of the noble Lord, Lord Lucas, would extend that duty to cases where the offence is motivated by hatred of the victim because of his occupation, legal employment, trade or pastime. I understand the anxiety in relation to those matters, as I understand the noble Lord's reasons for tabling his amendment.

However, we do not believe that this is the right way to go about addressing this issue. Our intention in introducing the provision for hate crimes on Report was to send a clear message that these very serious crimes, motivated by prejudice because of something fundamental and unchangeable about the victim, will not be tolerated. Crimes motivated because of the occupation of the victim do not fall into quite the same category.

Perhaps I may make it clear that the Government condemn extremists who seek to intimidate and harass those who carry out lawful businesses. However, there is a fundamental difference between this type of targeting and hate crimes. The former is not motivated by hatred of an individual because of a personal characteristic or fundamental belief but by a dislike of the job that he does or the pastimes in which he chooses to engage—that is, something external to the person which, at first blush, may not be immediately obvious in the same way as are colour, disability and the other issues.

We have made it plain that our minds will remain open to considering other situations in which similar provisions to those in Clauses 117 and 118 could be applied. However, we must be clear about the matter to which we are referring. As the noble Lord, Lord Lucas, will know, sentencers can, and will continue to be able to, take into account all the circumstances of an offence when considering its seriousness and increase the sentence accordingly. That might well include the type of hostility described in the amendment. It is important that the courts are aware of the problems of animal rights extremism, and we are working across government to raise awareness of the issues among the judiciary. Therefore, we believe that sufficient powers exist to deal appropriately with that type of crime and, in due course, I shall encourage the noble Lord to withdraw his amendment.

In order to encourage him even further, I want to respond to the questions raised by the noble Lord, Lord Dholakia. He asked whether we now have adequate powers to deal with such people and whether the tariff is high enough. We believe that the answer is "Yes". Under existing legislation, the police have a range of powers to deal with extremists. The Public Order Act 1986 gives the police powers to act in respect of a range of criminal offences relating to public disorder—for example, when threatening or abusive behaviour or harassment occurs.

We strengthened existing legislation to deal with animal rights extremists in the Criminal Justice and Police Act 2001 by amending the Protection from Harassment Act and the Malicious Communications Act, and we introduced the new power under Section 42 for the police to direct protestors away from residential premises. As noble Lords will be aware, we introduced amendments to the Anti-social Behaviour Bill, which is about to complete its passage through Parliament, to extend the offence of aggravated trespass to cover buildings and to amend the definition of the number of persons who constitute a public assembly from 20 or more to two or more. I believe that the noble Lord, Lord Lucas, participated in that debate. On that occasion, we explained that it was important to remove that limit because of the way in which it had been used so creatively and destructively by those who wish to cause mayhem in the manner described.

Those amendments will provide the police with additional powers to deal with protestors who occupy or invade buildings, and it will enable the police to impose conditions on smaller groups of protestors who conduct intimidatory protests outside targeted premises. It is a common tactic of animal rights protestors to demonstrate in numbers far fewer than 20. We are keen to ensure that the police have the right powers to do their job and we shall consider further measures as appropriate. But it is vital that changes in the law are translated into practical difference on the ground. That is why we are working across government to ensure an effective and consistent approach to enforcement of the law both between the police forces and across the whole criminal justice system.

We believe that the additional provisions that we have made in those Bills very much strengthen the hand of those who wish to enforce proper conduct and safety for those who are subjected to the extremist actions of animal rights protestors. The right bus was the Anti-social Behaviour Bill: we got on it; we paid our fare; and it has taken us to the right destination. Therefore, we suggest to the noble Lord, Lord Lucas, that he is right to say that this matter will wait for another day. I hope that that occasion will not be the next criminal justice Bill, whenever that occurs in the next millennium.

Lord Lucas

My Lords, I shall be very disappointed indeed if we do not have a criminal justice Bill in the next Session. We have had one every Session—if not several—and that is what keeps me alive and interested.

I congratulate the Government on what they have done in dealing with animal terrorism. They have supported Huntingdon Life Sciences Company in every way necessary when all others have deserted it. I believe that that is something for which we should all be profoundly thankful to the Government. I agree that the changes made in the Anti-social Behaviour Bill are looking extremely constructive. I am delighted that we are going down that road.

However, turning to this amendment and this subject, I believe that the Government have rather crossed that line already in what is now Clause 117 by making religion the subject of one of these hate-crime clauses. I entirely agree that that should be the case. Religion has caused more hate than possibly any other aggravating cause set down in these two clauses. None the less, people are capable of changing and often do. In the life of Christianity and Islam there have been periods when conversion by the sword has been a popular method of creating new recruits. There is nothing permanent about religion.

At the moment we are in a period of stability, but that does not mean that people who were born Muslim or born Christian stay Muslim or Christian. My former brother-in-law was born a Christian but is now a Muslim. I know of people who were born Muslims and who sustain their religion and I also know Muslims who have become Christians. There is quite a good commerce between religions. I am delighted that religion has been admitted to the cannon of hate crime, but it has opened the door to considering the possibility of hate crime in relation to other aspects of a person's life that are mutable rather than immutable and matters of choice rather than matters that people have thrust on them by circumstances or genetics. Clearly, this is not the time to press the issue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 138 [Savings for powers to mitigate sentences and deal appropriately with mentally disordered offenders]:

Baroness Scotland of Asthal moved Amendment No. 68: Page 96, line 28, after "with" insert "such".

The noble Baroness said: My Lords, in moving Amendment No. 68 I shall speak also to a very large group of amendments. Amendments Nos. 68 to 72, 75 to 79, 85 to 87,111,112 and 115 to 121 make a number of minor improvements to the sentencing provisions in the Bill. Amendments Nos. 68 to 72, 79, 111, 112 and 115 make a number of minor drafting improvements. Amendments Nos. 75 to 78 make a number of minor corrections to the interpretative definitions for the sentencing provisions. Amendment No. 85 delays the commencement of the Scottish powers of arrest provisions for the wildlife trafficking offences. Those will now be commenced by order at the same time as the equivalent provisions for England and Wales. Amendments Nos. 86 and 87 extend the timescale for the implementation of the mandatory life sentence provisions from two to four weeks after Royal Assent to make them practically implementable. Amendments Nos. 116, 117 and 119 to 121 make minor consequential amendments. Amendment No. 118 makes minor changes to existing provisions in the Crime (Sentences) Act 1997 to ensure that an offender serving a detention and training order may be transferred from England and Wales to Scotland. I beg to move.

Baroness Anelay of St Johns

My Lords, I refer briefly to Amendment No. 122 in my name which is grouped with the government amendments. I give notice that I shall move that amendment formally. It is a consequential amendment on Amendment No. 225 which I moved to a Division on Report and which the House approved.

On Question, amendment agreed to.

Clause 179 [Mental health treatment requirement]:

Baroness Scotland of Asthal moved Amendment No. 69: Page 118, line 11, leave out "relevant" and insert "community order or suspended sentence".

On Question, amendment agreed to.

Clause 183 [Periodic review of drug rehabilitation requirement]:

Baroness Scotland of Asthal moved Amendment No. 70: Page 121, line 44, leave out from "which" to end of line 45 and insert "he could have been dealt with for that offence by the court which made the order if the order had not been made".

On Question, amendment agreed to.

Clause 184 [Alcohol treatment requirement]:

Baroness Scotland of Asthal moved Amendment No.71: Page 122, line 37, leave out "relevant" and insert "community order or suspended sentence".

On Question, amendment agreed to.

Clause 222 [Licence conditions]:

Baroness Scotland of Asthal moved Amendment No. 72: Page 142. line 22, leave out "(2)(b)(ii) or".

On Question, amendment agreed to.

4.15 p.m.

Lord Ackner moved Amendment No. 73: Before Clause 241, insert the following new clause—

"AMENDMENT TO MURDER (ABOLITION OF DEATH PENALTY) ACT 1965

In section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 (c. 71) (abolition of death penalty for murder), for the word "sentenced" there is substituted "liable".

The noble and learned Lord said: My Lords, the amendment would achieve a simple matter: to make the sentence for murder no longer mandatory life, but at the discretion of the court. The crime of murder contains two features that are not always appreciated. The first relates to intent. The intent is not limited to an intent to kill; it applies to an intent to cause serious bodily harm. Accordingly, if there is a quarrel in a pub and one party to the quarrel breaks his bottle of beer and uses it as a weapon by thrusting it in the face of his companion, who dies as a result, that will be murder.

The second feature is that there are no categories of murder for which life imprisonment is reserved. The Homicide Act, which was enacted before capital murder was abolished, contained a number of categories in which capital murder was distinguished from murder that attracted life imprisonment. There were so many anomalies that it proved so unworkable that those provisions were withdrawn when the abolition of the death penalty came into force.

The result, as Lord Hailsham pointed out, is that the definition of murder now covers a vast spectrum of cases. I refer to what he said in the case of Regina v. Howe 1987, referred to at page 33 of the report of the Select Committee on Murder and Life Imprisonment, published in 1989, under the chairmanship of Lord Nathan—on which committee I had the privilege to serve. Lord Hailsham stated: Murder, as every practitioner of the law knows, though often described as one of the utmost heinousness, is not in fact necessarily so, but consists in a whole bundle cf offences of vastly differing degrees of culpability, ranging from brutal, cynical and repeated offences like the so called Moors murders to the most venial, if objectively immoral, 'mercy killing' of a beloved partner".

The other result, to which my noble and learned friend Lord Lloyd referred in the debate in Committee, is the case of Clegg. I refer to it for a different reason. As noble Lords may remember, Clegg was wholly and properly convicted of murder when he shot at a car that was being driven through a checkpoint in Ireland. There was much outcry about the case and subsequently he obtained an acquittal. Before that was obtained he was allowed out of prison, so that his sentence amounted in fact to no more than about four years.

My next point relates to the number of misapprehensions that have arisen on the subject that we are discussing. First, the noble Lord, Lord Clinton-Davis, in Committee particularly asked my noble and learned friend Lord Lloyd not to press the matter to a Division because, he said, the consequences are of enormous importance".—[Official Report, 14/10/03; col. 834.]

I suggest that that is not the case. The consequences are of significance, but there is no enormous importance.

Following the publication of the Nathan committee's report on murder and life imprisonment, a similar amendment to that which is before your Lordships was debated on the Criminal Justice Bill 1991. It succeeded by a majority of nearly 100 voters; the number was 177 in favour of the amendment and 79 against.

Secondly, it is quite wrong to say that Schedule 19— I think that it is still Schedule 19—would fall to the ground if this amendment was passed. Schedule 19 is self-contained and it would continue in existence if the sentence for murder became discretionary. The Home Secretary, by species of ministerial decree, has laid down the categories of murder and the kind of minimum sentences which they should attract.

Thirdly, it is suggested that we are "going soft on crime" if we allow the amendment. Again I refer to the Nathan report on the subject. It stated: The Committee recognise that the courts have, in recent years, been faced with crimes of the most extreme gravity. They believe that the form of life sentence which they recommend would provide the degree of protection which the public rightly demand and would provide a sufficiently severe sentence to deal with the most outrageous crimes. After the introduction of a discretionary sentence for murder, the Committee anticipate that the average length of time served under a life sentence would be considerably longer than it is now. The Committee expect that their proposals will lead to very lengthy penal sanctions being set in the most grave cases. In some cases, this may result in imprisonment for the rest of the prisoner's life".

Fourthly, on the subject of misapprehension, I refer to the observation made by the noble Baroness, Lady Scotland, that if this amendment was passed, it, would undermine public confidence in the criminal justice system".—[Official Report, 14/10/03; col. 837.]

I suggest that that is quite wrong. In Committee, the noble Lord, Lord Borrie, observed: The most powerful part of the speech of the noble and learned Lord, Lord Lloyd, was his indicating how false, how dishonest, how unreal and how unhelpful to the public is the mandatory life sentence, which in so many circumstances does not mean what it says and is not intended by the judge to mean what he has to say".—(Official Report, 14/10/03; col. 835.]

Fifthly, in the April 1991 debate that followed the report of the Nathan committee, my noble and learned friend Lord Lane said: No crime, however exceptional, requires the imposilion of a sentence which everyone knows will not be implemented".— [Official Report, 18/4/91; col. 1593.]

Sixthly, it is said that the public's reaction to deliberate taking of life is what makes the offence one of the utmost gravity. I refer again to the Nathan committee's report. It made reference to two cases in which life was intentionally taken. It stated: In the case of the Maw sisters, the sentence of three years' imprisonment on two young women who deliberately kilted their drunken father was harshly criticised for its severity, and in the case of one of them, reduced on appeal to six months; and the Thompson sisters, who shot their tyrannical father as he lay in bed having an epileptic fit and were given a two years suspended sentence seem to have attracted nothing but public sympathy. The public seem to be well able to recognise powerful mitigation, even in the case of deliberate killing. In the former case the defendants were found to be acting under provocation, in the latter to be under diminished responsibility; but there may well be similar cases where the jury is unable to find these defences to be made out. Moreover, individual judges do in practice, determine how long the life sentence is in reality".

Lastly, I turn to the suggestion that the imposition of the mandatory life sentence carries with it a deterrent effect. Again, I refer to the report of the Nathan committee. It stated that the fact that, the life sentence is mandatory actually reduces any deterrent value a life sentence may have. It dilutes what should be the awe-inspiring nature of the life sentence. Because many murderers receive unnecessary life sentences, the average time served is reduced, giving credence to the common belief that 'life' means nine years. If the life sentence became discretionary, the average time served by lifers would be substantially increased".

I now come to the coup de grace which arises from the fact that the Home Secretary, as a result of European human rights legislation, is no longer permitted to play any part in deciding how long a murderer can stay in prison. That must affect how one proceeds in future.

In discretionary life cases, the matter is argued out in front of the judge, with counsel producing the mitigation, calling any evidence he thinks appropriate, such as medical evidence, and urging upon the judge what he should do. The judge can there and then say, "The penal aspect of the sentence—the part that is appropriate for punishment and deterrence—is 'x' years", which would mean that once the "x" years expire, it is for the Parole Board to decide whether it is safe to allow him to be released. Alternatively, he may make no comment, save to say that he does not think that it is an appropriate case on which to make any recommendation. That means in substance that the person will go to prison for life.

In murder cases, there can be no alternative but to follow the same procedure. Provision has been made for the Attorney-General to have the right to apply to the Court of Appeal to say that a sentence is excessively lenient. There is no basis now for drawing any distinction. There is no situation in which the Home Secretary can say, "Wait a moment; I may wish to keep the person in prison longer than the judge may have in mind".

We have now reached a position where it is appropriate to make the two wholly comparable so far as concerns sentencing. I beg to move.

4.30 p.m.

Lord Lloyd of Berwick

My Lords, noble Lords may remember that in Committee, which seems a long time ago, my name stood first on the amendment and my noble and learned friend Lord Ackner's stood second. I would not like noble Lords to think that there was any significance in the reversal of the order; my noble and learned friend was simply quicker off the mark in getting to the Public Bill Office.

I do not intend to repeat any of the arguments that I advanced in Committee, as they are all well known, recorded in Hansard and have been fully covered by my noble and learned friend Lord Ackner today. I will content myself simply to say that I do not think that they have been answered, because I do not believe that they can be answered.

I wish to make a point that I did not mention in Committee. The Minister said that one must have regard to the families of murder victims and referred to the rage that they feel when a life taken is not mirrored by a life sentence—I think that I quote her correctly. Of course we must have regard to the families of victims of murder, as with every other crime; but I ask for evidence that they are comforted by the imposition of a life sentence that they know means nothing.

I am a former member of the Advisory Committee on Victim Support—I was a rather bad member, but I am still in touch with the committee. I am told that the families of victims care not about the meaningless imposition of a life sentence, but how long the defendant will serve in prison and, when he has completed his sentence, the terms on which he will come out. That is what they want to hear, not mere repetition of words that they know do not mean what they appear to mean. I believe that my information is correct, so let us hear no more in this debate about the need to reassure the families of victims by imposing a mandatory life sentence in every case of murder. All that does is to bring the sentencing process into disrepute.

When capital punishment was first curtailed in 1957, under pressure from Mr Sidney Silverman, and finally abolished in 1965, I suspect that a great majority of the country was in favour of retaining it. A majority in the country may still favour that view; but, in 1957, and again in 1965, Parliament gave a lead, and my noble and learned friend and I ask it to do exactly the same again. Thus, I regard the present amendment as unfinished business left over from 1965.

At one end of the scale there are murders that deserve a whole life sentence; at the other end are murders where a life sentence was wholly and utterly inappropriate. I gave the example of Private Clegg, which my noble and learned friend mentioned again. That is why judges have always been against the mandatory life sentence. It is not that they mind being told what to do—or not much—but they dislike being made to say things that are clearly nonsense; for example, imposing a life sentence and saying, "You shall serve three years".

The list of the great judges who have opposed the mandatory life sentence is endless. My noble and learned friend has mentioned some names; I add only that of the noble and learned Lord, Lord Bingham of Cornhill, the senior Law Lord. His lecture on the mandatory life sentence, given in 1998, when he was Lord Chief Justice, is, as one would expect, a model of clarity, but it is also worth reading for some of the quotations that he uses. He quotes from a speech of the noble and learned Lord, Lord Irvine, in this House in 1989, who stated: I would suggest that it is beyond argument that murder embraces such a multitude of diverse sins that the single mandatory life sentence must"— that is his emphasis, not mine, but I emphasise it, too— be inappropriate". He then states: The mandatory life sentence does not underpin public abhorrence of murder because everyone knows that life does not mean life".—[Official Report, 6/11/89; col. 521.] I quote those passages from the noble and learned Lord, Lord Irvine of Lairg, without his permission, but I agree with every word.

The noble and learned Lord, Lord Bingham, also quoted the noble Lord, Lord Richard, as saying: The argument in favour of change is based upon one simple proposition—that murders vary greatly". In the course of that lecture, the noble and learned Lord, Lord Bingham, said that his views were representative of and had the overwhelming support of all the Queen's Bench judges. The lecture ends with this sentence, with which I will also end: I very much hope that a new, open-minded administration will be willing to re-examine the merits of this important question". I share that hope and I am happy to support the amendment.

Earl Russell

My Lords, I do not know how many of your Lordships read the small print in The Times in the depths of mid-August. I admit that I do not very regularly do so myself, but on this occasion, I needed to brief a candidate in the Brent by-election. I discovered that, in Norway, so many people are sentenced to prison that they have had to introduce a waiting list for prison places. I understand that it is approximately two years long. That illustrates that a policy of severe sentencing may in the end turn out to be self-defeating.

I will leave the House with a quotation from Lord Williams of Mostyn, speaking on the Crime (Sentences) Bill, in which the mandatory sentence was extended. He asked whether the judge would be expected to tell the prisoner: I am sentencing you to life imprisonment. By the way, you can expect to serve 18 months".—[Official Report, 27/1/97; col. 1063.]

Lord Thomas of Gresford

My Lords, the mandatory life sentence is a dishonest fiction, which gives no comfort to victims' families, for all the reasons already stated. It also distorts the criminal law in a significant way. It is a mandatory sentence, therefore defendants plead not guilty and there are defences of provocation, lack of intent, self-defence and so forth, all of which cause considerable difficulties. The public would understand if the mandatory life sentence were abolished and the judge could pass what he considered to be the appropriate sentence for what has been done—whether whole life for a sadistic killing or a matter of months or a year for a mercy killing. It would satisfy the need for justice that the victims' families feel and it would be a great advance on the present situation.

4.45 p.m.

Lord Borrie

My Lords, if someone is convicted of murder, he should be liable to be sentenced to life. However, we have an opportunity to change the present law and it is surely not worthy of this Parliament to allow the present rule to continue—that a person convicted of murder must be given a life sentence. That is not worthy of Parliament because it is so remote from reality. We know that many convicted murderers will not in fact serve life—that much is known at the time, by the judge who is currently required to say certain false things.

The only arguments on the matter that we heard from my noble friend the Minister in Committee were adequately answered by the noble and learned Lords who proposed the amendment. Nearly 40 years after the abolition of the death penalty, it is surely not necessary to have this provision to satisfy a public that perhaps still wishes to have a death sentence for murder. After all this time, surely it is not necessary to continue with the fiction that the substitute for a death sentence is always and invariably life imprisonment.

Lord Hylton

My Lords, I venture to support this amendment, speaking purely as a layman. I do so because I have given considerable thought to cases such as that of Private Clegg, which has already been mentioned. There have been others in Northern Ireland—that of Guardsman Fisher among others. A person manning a checkpoint is put in the extremely difficult position of deciding, in probably less than a second, whether to shoot, which may cause innocent death, or whether not to shoot which may allow a car bomb to go through and kill dozens or hundreds of other people. Such things have arisen in Northern Ireland and could arise in Iraq.

In Australia, there is a crime of causing death by using excessive force. We do not have that and Schedule 20 says nothing about causing death by excessive force. It does however provide for a minimum tariff of 15 years. Those are the reasons for which I believe the amendment is necessary.

Baroness Anelay of St Johns

My Lords, I do not support the amendment. When we on these Benches were in government we did not support discretionary sentences for murder and we do not do so now. That position is wholly consistent with a Division that I invited noble Lords to join me in last week, when we removed minors under the age of 18 from the operation of Schedule 19. However, within that amendment, I ensured that the mandatory life sentence remained.

I will not repeat the arguments that have come from these Benches in the past, because Third Reading is not the time for that. However, I was interested—as always—in the arguments put forward by the noble and learned Lords, Lord Ackner and Lord Lloyd of Berwick. They are always beguiling in the way in which they adduce their arguments, but I am not going down their line today and I cannot foresee that I will go down their line in the future.

I was especially intrigued by the points made by the noble and learned Lord, Lord Ackner, when he said that there may be a misapprehension about lengths of sentences. The noble and learned Lord read out some comments, the purport of which was to say that we need not be too alarmed about having a discretionary life sentence. We could persuade the public by saying, "Don't worry, life sentences won't be any shorter than they are now". Even if I were prepared to argue on that basis—which I am not, I will stick to my principles on this—my next point would be that those comments were made before the provisions of this Bill were introduced. It would be even more difficult for judges in the future to pass a life sentence if it were discretionary, in terms of this Bill.

As we have debated at length in Committee and on Report, we on these Benches think that there is a lot of smoke and mirrors about the sentencing in this Bill. Release after serving half the term of a sentence would not bring the honesty in sentencing that the noble and learned Lords are quite right to want to achieve. I agree that there is no general understanding about what a life sentence means. However, unlike them I do not think that the solution is to go for a discretionary sentence. The solution is that all of us have a duty to ensure that the explanation is more properly given to the public. It is only fair to say that, if there were a Division, I would, in my capacity as a spokesman and for myself, support the Government.

Baroness Scotland of Asthal

My Lords, I thank the noble Baroness for her support. I hope not to speak too long. I do not want to re-tread the ground that we have already covered so comprehensively in Committee and on other occasions. However, there are a few things that I must say in response to the arguments so fully set out by the noble and learned Lords, Lord Ackner and Lord Lloyd of Berwick.

First, I agree with the noble and learned Lords that Parliament has had several opportunities to abolish the mandatory life sentence. I also agree that on no occasion were both Houses in agreement that it should be done. On the previous occasion and today, the noble and learned Lord, Lord Ackner, referred to the Nathan Select Committee, which, I believe, reported on the desirability of mandatory life sentences in 1989. The noble and learned Lord is right to say that the Committee held the view that the mandatory life sentence should be replaced with a maximum sentence of discretionary life. The government of the day did not accept that recommendation, and neither do we.

Several noble Lords said that the life sentence was a fiction. The noble Lord, Lord Thomas of Gresford, went so far as to say that it was a dishonest fiction. The noble Earl, Lord Russell, referred to the example given by Lord Williams of Mostyn. My noble friend Lord Borrie asked why we would not change it, and he was supported by the noble Lord, Lord Hylton.

It is not a dishonest fiction. There is a misunderstanding of what "life" means. A "life sentence" means just that: it extends to the whole of the defendant's life. There is a misunderstanding about the fact that part of the life sentence will be spent in custody and the remainder in the community. It is possible for a person, for the duration of their life, until the day on which they die, to be recalled to prison, if they breach the undertakings or conditions on which they remain in the community on licence.

We have made it clear in the Bill that we intend the licence to have meaning. It is sad that many of those who deal with the issue of life sentences wrongly believe that the sentence ends on the person's discharge from prison, when it does not. When the noble and learned Lord, Lord Lloyd of Berwick, says that a life sentence does not mean life and that, in some way, it means nothing, I must, with the greatest respect, wholeheartedly disagree with him. Many of those who are subject to a life sentence say that, for the rest of their days and notwithstanding the fact that they are no longer within the four walls of a prison, they are conscious of being imprisoned by the knowledge that, if they transgress in any way, they may be recalled to prison to continue their sentence in incarceration. For them, that has great meaning. Your Lordships will find that few prisoners who have been thus released will say, as the noble and learned Lord said, that it means nothing. It impinges on the quality of the liberty that is given them. There are those who say, for that reason, that someone who has served their time in prison should no longer be subject to such restraint. We disagree. I hope that your Lordships will understand why we do not see it as a fiction and do not agree with the comments made by the noble Lord, Lord Thomas of Gresford.

Nor do we agree with the comments made by my noble friend Lord Borrie, although I understand why he made them. It is 40 years since the abolition of the death penalty, and it is because we wish to maintain the present position and not have it reintroduced that we maintain that it is important to keep the idea of release on licence. We must make it mean something.

Lord Ackner

My Lords, the noble Baroness said that the Government wanted the position to remain as it is. Now that the Home Secretary no longer has any part to play in determining the time that an individual prisoner spends in prison, how will the procedure in court relating to what the judge says and does differ between murder and discretionary life sentences?

Baroness Scotland of Asthal

My Lords, if a person is convicted of murder and the life sentence imposed, that person will, whatever tariff the judge alights on, remain on licence for the remainder of their life, once the tariff has been served and the person released into the community. With a discretionary sentence, the sentence imposed in terms of years would, unless the court determined that that person should be subject to a life sentence, be the total period served by the defendant. Such a person would not, I imagine, thereafter be on licence.

Lord Ackner

My Lords—

Lord Renton

My Lords—

Baroness Scotland of Asthal

My Lords, I remind the House that we are on Report—

Noble Lords

Third Reading.

Baroness Scotland of Asthal

Third Reading—even worse. At Third Reading, the constraints on your Lordships are even more rigorous, and the scope for questions more limited.

Lord Ackner

My Lords, I am entitled to ask a question. I have not had an answer to my question. How will the procedure in court differ, now that the Home Secretary has no part to play? Does the judge say, "The period that I consider that you should serve by way of the penal part is X. After that, you will be subject to the Parole Board"? Or, will he say, "I make no recommendation, because life should mean life". How will the position differ, if at all?

Baroness Scotland of Asthal

My Lords, at the moment, we do not have the rules that will apply to such matters. With regard to the procedure for murder and discretionary life sentences, we believe that the murder tariff will be set by the court with reference to the principles that we outlined, while, with discretionary life sentences, the court will set the tariff but not on those principles.

I anticipate that the court, in one sitting or two, will, first, give the nature of the sentence—life imprisonment. Secondly, it will say what the tariff should be. Thirdly, it should describe to the defendant what the proposals are for the role of the Parole Board. Fourthly, it should say that a life sentence, if imposed, will be life on licence for the remainder of the person's life. I cannot tell your Lordships the precise details. The rules relating to how the system will work in practice have not been set. However, it will certainly be for the court to set the tariff.

That will not impinge in any way on the fact that, if a life sentence is imposed, all that the judge will be doing is indicating the part of the sentence that must be spent in custody. Whatever remains, after the custodial sentence is served, will be on licence. The defendant will remain on licence, whether released by the Parole Board on conditions or otherwise, for the remainder of his life.

It is a matter of concern. I join the noble Baroness, Lady Anelay of St Johns, in saying that we must do better in helping people to understand that life means life. It may be that the whole of the life sentence will be served in prison or that part of the sentence will be served in prison and part will be served in the community.

The document produced by the Law Commission is very helpful. I should like to take the opportunity to thank the Law Commission for its valuable work and analysis in this area. The paper refers to the relationship between the partial defences to murder and the mandatory penalty. It argues that were the mandatory penalty to be abolished, there would be less need for the partial defences, which is an issue that will be looked at.

The document is an initial consultation paper that sets out options for reform. In due course, the Government will consider the final report. However, I must make it clear that we have absolutely no intention to abolish the mandatory life sentence. That is our firm policy and an understanding of our position is reflected throughout the Law Commission report. It is clear from the consultation document that the Law Commission would not claim that these matters are simple or that the abolition of partial defences and mandatory life is the only option.

I hope that I have made clear why the Government consider this an appropriate matter to retain and why it would not be right to accept the amendment. I invite the noble Lord to withdraw. I make it plain that if the amendment is pressed, the Government will resist it.

Lord Renton

My Lords, before the noble Baroness sits down, for the sake of the record, would she tell us the present position with regard to the Royal prerogative of mercy?

Baroness Scotland of Asthal

My Lords, the Home Secretary had, until theAnderson case, an ability to set the tariffs. The Parole Board exercised the judgment on behalf of the public in relation to when it is safe and satisfactory to release those persons. The noble Lord will remember that the Royal prerogative of mercy was of particular importance when we still had the death penalty. I know that the new shadow Home Secretary would like to reintroduce lethal injection as a means of dealing with murderers, but it is not a view with which we concur.

Lord Ackner

My Lords, my noble and learned friend Lord Lloyd is a very busy person. I anticipated that there could be a possibility of his not being available when the amendment was called. It was not out of any desire to put the position on the basis of alphabetical merit, but in order to know where I stood. In fact, when the amendment was called on Report, he was not there.

Lord Lloyd of Berwick

My Lords, nor were you.

Lord Ackner

My Lords, I was. My noble and learned friend was not there to protest about the situation. I accordingly managed to get it stood over; I did not know how it would be today.

I should like to make two points. First, the noble Baroness spoke as if the discretionary life sentence does not involve imposing a life sentence when it is appropriate. One imposes, at one's discretion, a life sentence. Subsequently, all the questions about remaining on licence for the rest of one's life come into being. The only difference is that, under my amendment, the prisoner gets his "just deserts". It is a fair sentence.

Secondly, I want to refer to what happened in 1991 when there was a ping-pong arising out of the success in this House of a majority vote of nearly 100. The noble Lord, Lord Waddington, Leader of the House and former Home Secretary, according to The Times dated 4th July 1991, said to the House: I am certainly not saying baldly to you that the Commons has spoken and you must agree. I am very well aware of how often you have shaped public opinion and attitudes and I would not be surprised if, at some future date, policy on this matter does change as a result of a change in public opinion which you have influenced". I say that that date has arrived.

Finally, I refer to what Lord Hailsham said when he described the reasons given in the Commons for insisting as, frankly and intellectually ridiculous". He continued: One day people will see sense, even in the House of Commons, and the hairy heel of populism which they have followed will ultimately disappear". I think that we should have the opportunity of showing that is the case today.

5.6 p.m.

Question, Whether the said amendment (No. 73) shall be agreed to?

Their Lordships divided: Contents, 92; Not-Contents, 116.

Division No. 1
CONTENTS
Ackner, L.	Maddock, B.
Addington, L.	Mallalieu, B.
Alexander of Weedon, L.	Mar, C.
Ampthill, L.	Mar and Kellie, E.
Avebury, L.	Masham of Ilton, B.
Bagri, L.	Michie of Gallanach, B.
Baker of Dorking, L.	Miller of Chilthorne Domer, B.
Barker, B	Monson, L.
Beaumont of Whitley, L.	Morris of Aberavon, L.
Biffen, L.	Mowbray and Stourton, L.
Bledisloe, V.	Murton of Lindisfarne, L.
Borrie, L.	Newby, L.
Brennan, L.	Northover, B.
Brittan of Spennithorne, L.	Palmer, L.
Campbell of Alloway, L.	Peyton of Yeovil, L.
Chalfont, L.	Phillips of Sudbury, L.
Chan, L.	Prashar, B.
Colville of Culross, V.	Quinton, L.
Craig of Radley, L.	Rawlinson of Ewell, L.
Craigavon, V.	Rennard, L.
Dahrendorf, L.	Renton, L.
Dholakia, L.	Rodgers of Quarry Bank, L.
Donaldson of Lymington, L.	Roll of Ipsden, L.
Eden of Winton, L.	Roper, L.
Elles, B,	Russell, E.
Elton, L.	Russell-Johnston, L.
Fearn, L.	Saltoun of Abernethy, Ly.
Geraint, L	Sandberg, L.
Goodhart, L.	Scott of Needham Market, B.
Hamwee, B.	Sharp of Guildford, B.
Harris of Richmond, B.	Shutt of Greetland, L.
Holme of Cheltenham, L.	Simon of Glaisdale, L.
Hooson, L.	Smith of Clifton, L.
Howe of Aberavon, L.	Steel of Aikwood, L.
Howe of Idlicote, B	Stern, B.
Hurd of Westwell, L.	Stoddart of Swindon, L.
Hussey of North Bradley, L.	Strange, B.
Hylton, L. [Teller]	Swinfen, L.
Kennedy of The Shaws, B.	Thomas of Gresford, L.
Laird, L.	Tordoff, L.
Lamont of Lerwick.L.	Walmsley, B.
Lawson of Blaby, L.	Weatherill, L.
Lester of Herne Hill, L.	Wedderburn of Charlton, L.
Listowel, E.	Williams of Crosby, B.
Livsey of Talgarth, L.	Wilson of Dinton, L.
Lloyd of Berwick, L. [Teller]	Wright of Richmond, L.

NOT-CONTENTS
Acton, L.	Howells of St. Davids, B.
Allenby of Megiddo,V.	Howie of Troon, L.
Alli, L.	Hoyle, L.
Amos, B. (Lord President)	Hunt of Chesterton, L.
Andrews, B.	Hunt of Kings Heath, L.
Anelay of St Johns, B.	Irvine of Lairg, L.
Archer of Sandwell, L.	Janner of Braunstone, L.
Ashton of Upholland, B.	Jay of Paddington, B.
Bach, L	Jones, L.
Bassam of Brighton, L.	Jordan. L.
Bernstein of Craigweil, L	Judd, L.
Blackstone, B.	King of West Bromwich, L.
Bragg, L.	Kirkhill, L.
Brooke of Alverthorpe, L.	Layard, L.
Brookman, L.	Lea of Crondall, L.
Burlison, L.	Lofthouse of Pontefract, L.
Campbell-Savours, L.	Macdonald of Tradeston, L.
Carter, L.	McIntosh of Haringey.L.
Christopher, L.	McIntosh of Hudnall, B.
Clarke of Hampstead.L.	MacKenzie of Culkein, L.
Cohen of Pimlico, B.	Marsh, L.
Corbett of Castle Vale, L.	Manson of Barnsley, L.
Crawley B	Massey of Darwen, B.
Davies of Coity,L.	Merlyn-Rees, L.
Davies of Oldham, L. [Teller]	Mishcon, L.
Dean of Thornton-le-Fylde,B.	Mitchell, L.
Desai, L.	Nicol, B.
Dixon, L.	Orme, L
Donoughue, L.	Patel of Blackburn, L.
Dormand of Easington, L	Paul, L.
Dubs, L.	Pendry, L.
Elder, L.	Pitkeathley, B.
Evans of Parkside, L.	Plant of Highfield, L.
Evans of Temple Guiting L.	Radice, L.
	Ramsay of Cartvale, B.
Falconer of Thoroton, L. (Lord	Randall of St. Budeaux, L.
Chancellor)	Rendell of Babergh, B.
Farrington of Ribbleton, B.	Rooker, L
Faulkner of Worcester, L.	Sawyer, L.
Filkin, L.	Scotland of Asthal, B.
Fitt, L.	Sheldon. L.
Fowler, L.	Simon, V.
Gale, B.	Skelmersdale, L.
Gibson of Market Rasen, B.	Stewartby, L.
Golding, B.	Stone of Blackheath, L.
Goldsmith, L.	Symons of Vernham Dean, B.
Gordon of Strathblane, L.	Taylor of Blackburn, L.
Goudie, B.	Temple-Morris, L.
Gould of Potternewton, B.	Tenby, V.
Graham of Edmonton, L.	Thornton, B.
Gregson, L.	Tomlinson, L.
Grocott, L.[Teller]	Turnberg, L.
Harris of Haringey, L.	Turner of Camden, B.
Harrison, L.	Warner. L.
Haskel, L.	Whitaker, B.
Haskins, L.	Whitty, L.
Hodgson of Astley Abbotts, L.	Wilkins, B.
Hogg of Cumbernauld, L.	Williams of Elvel, L.
Hollis of Heigham, B.	Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.16 p.m.

Baroness Scotland of Asthal moved Amendment No. 74: After Clause 270, insert the following new clause—

"DISQUALIFICATION FROM WORKING WITH CHILDREN

Schedule (Disqualification from working with children) (which contains amendments of Part 2 of the Criminal Justice and Court Services Act 2000 (c. 43) relating to disqualification orders under that Part) shall have effect.

The noble Baroness said: My Lords, I am pleased to move government Amendment No. 74 I shall speak to all the government amendments in this extensive group; that is, Amendments Nos. 80, 81, 92, 113 and 123. The amendments have been tabled in response to concerns raised previously in debate. I must again thank the noble Baroness, Lady Blatch, and other noble Lords for raising these important issues with the Government.

Disqualification orders are provided for under Part 2 of the Criminal Justice and Court Services Act 2000 so that offenders convicted of a specified violent or sexual offence involving a child and receiving a sentence of imprisonment of 12 months or more can be disqualified from working with children in the future. These are important safeguards and it is essential that they work effectively to protect children.

New Clause 29A provides senior courts with a discretionary power to make a disqualification order on an offender, whether an adult or a child, convicted of one of the specified offences against a child, but whose sentence does not meet the sentence threshold of 12 months. The court will need to be satisfied that the offender is likely to commit a further offence against a child. This will enable the court to disqualify someone who poses a continuing risk to children from working with them, regardless of the sentence passed. This amendment builds on one proposed on Report by the noble Baroness, Lady Blatch, and I believe it strengthens the raft of measures to safeguard children. I hope that the noble Baroness will be pleased to see that the seed of her idea has flourished into so robust a plant.

New Clause 29B will provide a means of making applications for disqualification orders at any time after sentencing on individuals who meet the qualifying criteria, but in relation to whom the court appears not to have considered the question of an order. Noble Lords will recall that, currently, such matters have to be brought back before the court within 28 days. We believe that a better formula is that which is now being proposed, enabling the matter to be brought back at any time.

It will apply solely to cases in which the court was under a duty to consider the issue of a disqualification order but appeared not to do so—that is, where the individual committed one of the offences specified in Schedule 4 of the Criminal Justice and Court Services Act 2000 and the sentence threshold specified in the Act is met. The amendment has the effect that the prosecution will have a discretion to go back at any time to the court and apply for a disqualification order to be made.

Amendment No. 114 would provide that proposed new Section 29B applied to cases sentenced after the disqualification order provision came into force on 11th January 2001, as well as to any cases that might occur in future. Because the consideration of the order is one which should have taken place at the time of sentencing, and because disqualification orders are preventive measures rather than being punitive in nature, proposed new Section 29B as drafted already means that the provisions apply to such cases and there is no need to make this explicit.

Amendments Nos. 74, 80, 81, 92 and 123 are consequential amendments.

The noble Baroness, Lady Blatch, drew the House's attention to some examples of cases where it appeared that the court had failed to consider disqualification orders when it was under a duty to do so. It is extremely regrettable that consideration was not apparently given by the sentencing court at the time of originally sentencing those offenders, but proposed new Section 29B would provide a potential means of remedying such cases. Whether an application under proposed new Section 29B is made in a particular case will be a question for the Crown Prosecution Service. The additional advice to be issued by the Judicial Studies Board and the Crown Prosecution Service to sentencers and prosecutors, to which I alluded on Report, should also be of great assistance in ensuring that the occurrence of such cases is minimised.

The noble Baroness, Lady Blatch, also raised previously the question of monitoring the operation and impact of these orders and we are actively considering how best to do this.

I trust that your Lordships will agree that these government amendments serve to strengthen the raft of provisions in place to deter those who have already offended against children from posing a risk to them through work. I invite the House to accept these amendments and, because it is unnecessary, to reject Amendment No. 114. I hope that the noble Baroness, Lady Blatch, will feel that the comprehensive amendments brought forward by the Government have fully dealt with the mischief she sought to cure.

Baroness Blatch

My Lords, I am enormously grateful to the Minister for introducing these amendments today. Three years is a long time. I know it has been difficult to get the clauses right but they are now pretty well where I want them to be. I personally thank the noble Baroness because she and her colleague, the noble and learned Lord the Attorney-General, have both been sympathetic to the points raised. Indeed, the noble Lord, Lord Bassam, at an earlier stage expressed sympathy with the points we raised. It is good that these very important points are being addressed.

I seek clarification from the noble Baroness on two points. First, am I correct in thinking that where the Crown Prosecution Service takes the view from the outset of a case that there is a probability of a disqualification order being awarded, the case can be allocated to a senior court from the start? Will it be free to deal with a case in that way?

However, it is not always possible at the outset to make such a judgment. A case could go to the magistrates' court and it could subsequently transpire, after all the evidence has been considered, that a disqualification order is indeed appropriate. Proposed new paragraph 2(1)(b) in Amendment No. 113 states: the individual is sentenced by a senior court". Would it be possible at the point of sentencing for the magistrates' court to refer the sentencing to the senior court so that the original sentence could be dealt with on the basis of what had happened in the magistrates' court and in addition, if appropriate, a disqualification order could be awarded? If not, if the magistrates award the sentence, then sentence would not have been dealt with in the senior court. It would be helpful if that point could be clarified.

As for the issue of retrospection, I listened very carefully to what the noble Baroness said. My understanding is that I should not worry about retrospection because legislation for that is in place. However, there remains the vexed case of Sadowski. I still do not know whether a disqualification order was even considered or, if it had been considered, whether one would been awarded. From all that we know about the Sadowski case it would appear that a disqualification order would have been appropriate.

Do I understand correctly that, from here on, if a court omits to consider and/or award a disqualification order where appropriate, such an omission can be dealt with retrospectively at any time? Do I further understand correctly that if it transpires that a disqualification order should have been considered in Sadowski but was not considered, that cannot be dealt with under the amendment?

I shall not be churlish and refuse to support the amendments—they go a huge way towards achieving what I want—but there would be an important lacuna if a case as serious as that of Sadowski, where there would be a danger if such an offender was allowed to work with children in the future, could not be dealt with. I do not argue that we should go back through all the cases considered in a senior court where it would not have been appropriate to either consider or award a disqualification order, but where a sentence has been passed and one should have been automatically applied, there is a case for considering that person unfit to work with children.

Having said that—I understand that a reply is winging its way to the Minister as I speak—I again thank the Minister and her officials for the enormous amount of work that has been carried out on these amendments. I am deeply grateful.

Baroness Scotland of Asthal

My Lords, I reiterate our gratitude for the way in which the noble Baroness has pressed the issue. She is absolutely right— enormous effort has been put in by our officials and others to produce this provision rapidly. We had to grapple with quite complex legal issues in order to introduce a robust provision which would not transgress against any of the proper restraints imposed by the Human Rights Act and other initiatives.

Let me make it plain that where a relevant case is determined by a magistrates' court it can be referred to the Crown Court for sentencing, including a disqualification order, under the dangerousness provisions of the Bill. If it appears to the Crown Prosecution Service that a case could attract disqualification, that would be a reason for it to go to the Crown Court. If, because of the way in which a case develops in the magistrates' court, it subsequently becomes clear that it falls into that category, it could then go to the Crown Court. If there was some mistake, some misunderstanding, and a disqualification was not made, then when the mistake was identified it would be possible to utilise the Bill's provisions to cure that mistake. That is how we see the provisions working. That is why we considered it appropriate that we could go back at any time.

The noble Baroness knows that the previous Bill refers to bringing back a case within 28 days. We believe that there may be difficulties in future about that and so we have crafted the provision in a more open way so that the mischief may be addressed. Any case involving sentence and disqualification can be caught by the provisions of the clause.

I turn to the noble Baroness's second question, about Sadowski. I hope that she understands that, after the general remarks I have made on proposed Section 29B, it would be quite inappropriate for me to comment on whether an application should be made under that section in relation to any particular case. That would be a matter for the independent prosecution authorities to consider. From the Dispatch Box, I would not like to say anything at all that might be construed subsequently as improperly impinging on the exercise of a prosecutor's discretion.

However, the noble Baroness asked for a response on the question of Sadowski, and I should like to say what happened in that case. Previously, she asked me why Luke Sadowski was not subject to a disqualification order although he appeared to meet the qualifying criteria. I understand that the question of the disqualification order was overlooked at the time of sentencing, but that was realised the following day. Urgent attempts were made to bring the matter back before the court under Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000, but the legislation requires that the application be heard by the sentencing judge within 28 days of the sentence being passed. That was not possible, for various reasons, so Sadowski is not therefore currently subject to a disqualification order.

I hope that I have said enough to give the noble Baroness comfort that situations such as these can be cured, although I reiterate that I say nothing about the particular case, as to do so would be improper. I hope that 1 have given her the real relief that she sought.

5.30 p.m.

Baroness Blatch

My Lords, do I understand correctly that the provision of proposed Section 29B would allow the courts to revisit the Sadowski case? My understanding of what the Minister said at the beginning was that, from hereon, in the case of anyone sentenced where the courts omitted to consider and/or to award in appropriate cases a disqualification order, the courts could return at any time subsequently and put that right. My understanding was that retrospection did not go quite as far as the case of Luke Sadowski. I understand and totally accept that the Minister cannot talk about individual cases. However, if the retrospection catches that sort of person, in cases that happened prior to the Bill going on the statute book, I am a very happy bunny indeed.

Baroness Scotland of Asthal

My Lords, I could not possibly comment, but I would not be surprised if the noble Baroness's description was an accurate one of what we have just done.

On Question, amendment agreed to.

Clause 276 [Interpretation of Part 11]:

Baroness Scotland of Asthal moved Amendments Nos. 75 to 78:

Page 168, line 8, leave out from beginning to "or".

Page 168, line 32, leave out from beginning to "or".

Page 168, line 47, leave out from beginning to "or".

Page 169. line 7, leave out from "order" to "or" in line 8.

On Question, amendments agreed to.

Clause 299 [Section 297: interpretation]:

Baroness Scotland of Asthal moved Amendments Nos. 79 to 81:

Page 182, line 39, leave out "such".

Page 183. line 1, after "if insert "(a)

Page 183, line 3, at end insert "or

(b) an order under section 29A of that Act has been made in respect of him.

On Question, amendments agreed to.

Clause 301 [Civil proceedings for trespass to the person brought by offender]:

Baroness Scotland of Asthal moved Amendment No. 82: Page 183, line 15, after "convicted" insert "in the United Kingdom".

The noble Baroness said: My Lords, these are minor technical amendments to Clause 301. I beg to move.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 83: Page 184, line 1, at end insert—

• "(6A) Where—
1. (a) in service disciplinary proceedings, as defined by section 276(1), a person has been found guilty of an offence under section 70 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18), section 70 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or section 42 of the Naval Discipline Act 1957 (c. 53). and
2. (b) the corresponding civil offence (within the meaning of that Act) was an imprisonable offence,
• he is to be treated for the purposes of this section as having been convicted in the United Kingdom of the corresponding civil offence."

On Question, amendment agreed to.

Clause 302 [Orders and rules]:

Lord Thomas of Gresford moved Amendment No. 84: Page 184, line 20, leave out from "power" to second "is

The noble Lord said: My Lords, the amendment relates to the powers of the parole board under the Bill. Under Clause 211(2), it is the duty—

Baroness Scotland of Asthal

My Lords, I do not like to interrupt the noble Lord, but may I indicate that I intend to give him the pleasure of accepting the amendment, so perhaps he could shorten what he wishes to say in its support?

Lord Thomas of Gresford

My Lords, I am so disappointed that I cannot explain the amendment to your Lordships. What is a victory without your understanding? I am most grateful. I beg to move.

On Question, amendment agreed to.

Clause 308 [Commencement]:

Baroness Scotland of Asthal moved Amendments Nos. 85 to 87:

Page 187, line 6, leave out "279" and insert "279(1) to (3), (5) and (6)".

Page 187, line 17, leave out "two" and insert "four".

Page 187, line 18, at end insert "(and Schedules 20 and 21)".

On Question, amendments agreed to.

Clause 309 [Extent]:

Baroness Scotland of Asthal moved Amendment No. 88: Page 188, line 27, at end insert " (except as mentioned in subsection (7A))".

The noble Baroness said: Amendments Nos. 88 to 91, 93 to 106 and 125 to 146 are all consequential amendments. Amendments Nos. 93 to 106 are additions to the consequential amendments listed in Part 2 of Schedule 3 for allocation and sending. Amendments Nos. 125 to 146 make corresponding additions where necessary to the repeals Schedule 35. Amendments Nos. 88 to 91 amend Clause 309, which deals with extent, so as to preserve the amended or repealed provisions, where necessary, in Northern Ireland. I beg to move.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendments Nos. 89 to 92:

Page 188, line 32, leave out "to 3" and insert "to 4

Page 188, line 32, at end insert "(except as mentioned in subsection (7B))

Page 188, line 34, at end insert—

• "(7A) Paragraphs 29, 30,31, 37, 38,46,49 and 58A of Schedule 3 do not extend to Northern Ireland.
• (7B) The repeals in Part 4 of Schedule 35 relating to-—
1. (a) the Bankers' Books Evidence Act 1879 (c. 11),
2. (b) the Explosive Substances Act 1883 (c. 3),
3. (c) the Backing of Warrants (Republic of Ireland) Act 1965 (c. 45),
4. (d) the Customs and Excise Management Act 1979 (C. 2), and
5. (e) the Contempt of Court Act 1981 (c. 49),
• do not extend to Northern Ireland."

Page 188, line 42, at end insert "or

(b) the extent of section (Disqualification from working with children) and Schedule (Disqualification from working with children) so far as relating to the making of orders by, or orders made by, courts-martial or the Courts-Martial Appeal Court".

On Question, amendments agreed to.

Schedule 3 [Allocation of cases triable either way, and sending cases to the Crown Court etc]:

Baroness Scotland of Asthal moved Amendments Nos. 93 to 106: Page 212, line 11, leave out from "1956," to end of line 14 and insert "the Protection of Children Act 1978 or the Sexual Offences Act 2003;

Page 226, line 7, at end insert—

"Army Act 1955 (3&4 Eliz. 2 c. 18)

In section 187 of the Army Act 1955 (proceedings before a civil court where persons suspected of illegal absence), at the end of subsection (4) there is inserted—

The references in this subsection to provisions of the Magistrates' Courts Act 1980 and to corresponding enactments are to be taken to refer to those provisions and enactments as if no amendment to them had been made by the Criminal Justice Act 2003.

Air Force Act 1955 (3 & 4 Eliz. 2 c. 19)

In section 187 of the Air Force Act 1955 (proceedings before a civil court where persons suspected of illegal absence), at the end of subsection (4) there is inserted—

The references in this subsection to provisions of the Magistrates' Courts Act 1980 and to corresponding enactments are to be taken to refer to those provisions and enactments as if no amendment to them had been made by the Criminal Justice Act 2003."

Page 226, line 14, at end insert—

"Naval Discipline Act 1957 (c. 53)

In section 109 of the Naval Discipline Act 1957 (proceedings before summary courts), at the end of subsection (4) there is inserted—

The references in this subsection to provisions are to be taken to refer to those provisions as if no amendment to them had been made by the Criminal Justice Act 2003."

Page 227, line 7, at end insert—

"Firearms Act 1968 (c. 27)

In Schedule 6 to the Firearms Act 1968 (prosecution and punishment of offences), in Part 2, paragraph 3 is omitted.

Page 227, leave out line 29 and insert—

( ) after "under" there is inserted "section 52(5) of the Crime and Disorder Act 1998,",

Page 227, line 30, at end insert—

( ) after sub-paragraph (ii) there is inserted—

(iia) section 17C (intention as to plea: adjournment);", and

( ) at the end of sub-paragraph (iii) there is inserted "or

(iv) section 24C (intention as to plea by child or young person: adjournment),".

Page 228, line 9, leave out sub-paragraph (2) and insert—

( ) In section 2, as substituted by the Courts Act 2003 (trial of summary offences), in subsection (2), for "as examining justices over" there is substituted "under sections 51 and 51A of the Crime and Disorder Act 1998 in respect of.

Page 228, line 18, at end insert—

( ) In section 8B, as inserted by the Courts Act 2003 (effect of rulings at pre-trial hearing), in subsection (6), the words "commits or" are omitted.

Page 230, line 30, at end insert—

( ) In section 43 (power of magistrates' court to commit for restriction order), for subsection (4) there is substituted—

(4) The powers of a magistrates' court under section 3 or 3B of the Powers of Criminal Courts (Sentencing) Act 2000 (which enable such a court to commit an offender to the Crown Court where the court is of the opinion, or it appears to the court, as mentioned in the section in question) shall also be exercisable by a magistrates' court where it is of that opinion (or it so appears to it) unless a hospital order is made in the offender's case with a restriction order."

Page 230, line 35, at end insert ", and

( ) in subsection (7), for the words from "inquire" to "1980" there is substituted "send him to the Crown Court for trial under section 51 or 51A of the Crime and Disorder Act 1998", and in paragraph (b) of that subsection, the words "where the court proceeds under subsection (1) of that section" are omitted.

Page 233, line 14, at end insert—

"Sexual Offences (Amendment) Act 1992 (c. 34)

58A In section 6 of the Sexual Offences (Amendment) Act 1992 (interpretation), in subsection (3)(c), for "commits him" there is substituted "sends him to the Crown Court".

Page 233, line 31, at end insert—

"Reserve Forces Act 1996 (c. 14)

In Schedule 2 to the Reserve Forces Act 1996 (deserters and absentees without leave), in paragraph 3, after sub-paragraph (2) there is inserted—

(2A) The reference in sub-paragraph (2) to provisions of the Magistrates' Courts Act 1980 is to be taken to refer to those provisions as if no amendment to them had been made by the Criminal Justice Act 2003."

Page 234, line 16, at end insert—

"Sexual Offences (Protected Material) Act 1997 (c. 39)

In section 9 of the Sexual Offences (Protected Material) Act 1997 (modification and amendment of certain enactments), subsection (1) is omitted.

Page 236, line 7, at end insert—

"Proceeds of Crime Act 2002 (c. 29)

( ) The Proceeds of Crime Act 2002 is amended as follows.

( ) In section 6 (making of confiscation order), in subsection (2)(b), for "section 3, 4 or 6" there is substituted "section 3, 3A, 3B, 3C, 4, 4A or 6".

( ) In section 27 (defendant absconds after being convicted or committed), in subsection (2)(b), for "section 3, 4 or 6" there is substituted "section 3, 3A, 3B, 3C, 4, 4A or 6".

( ) In section 70 (committal by magistrates' court), in subsection (5), after "way)" there is inserted "or under section 3B(2) of that Act (committal of child or young person)".

Question, amendments agreed to.

Baroness Scotland of Asthal moved Amendment No. 107: Before Schedule 4, insert the following new schedule—