Criminal Justice Bill

HL Deb 14 October 2003 vol 653 cc858-86

9.16 p.m.

House again in Committee.

Clause 254 [Determination of minimum term in relation to mandatory life sentence]:

Baroness Anelay of St Johns moved Amendment No. 209A:

Page 147, line 5, after first "sentence" insert "for an offence committed before or after the commencement of this section"

The noble Baroness said: Here we are again. We have debated 10 groups so far and we have only another 20 to go before we are allowed to go to bed by the Government Chief Whip.

In moving Amendment No. 209A, I shall speak also to Amendments Nos. 210A and 210B. For the avoidance of doubt, I make it clear from the beginning that these amendments and those which follow in the next group to Schedule 17 are today all probing amendments. I am trying to clarify some of the details of the Government's proposals on the new statutory minimum term for murderers.

Amendment No. 209A would make it clear on the face of the Bill that the new sentencing regime for murder contained in Chapter 7 of Part 12 would apply to offences that have been committed before as well as after commencement. Clause 254(1) provides that the new system will apply when the court passes a life sentence after the commencement date. But of course the murder could have been committed many months or years before that date. The clause is silent on whether it will apply to offences committed before commencement. No provision similar to that is present in Clause 270(5), which states that the penalty of 14 years for causing death by dangerous driving will apply only to offences committed after the commencement date. Amendment No. 209A therefore gives the Government the opportunity to make clear how the new system is intended to work in such cases.

Amendments Nos. 210A and 210B seek to probe the wording of Clause 254(5). That subsection specifies that when considering the seriousness of an offence of murder, the court must have regard not only to what is set out in Schedule 17 but also to, any guidelines relating to offences in general which are relevant to the case and are not incompatible with the provisions of Schedule 17".

The amendments seek clarification of what kinds of guidelines issued by the Sentencing Guidelines Council the Government may have in mind. When the Government state that the court must have regard to guidelines relating to "offences in general", do they mean that the court will have to consider a single set of generic guidelines relating to the general arrangements for the sentencing of all offences? Or do they mean that the courts will have to consider a number of guidelines each relating to a particular type of offence? What is meant by "offences in general"?

In what circumstances do the Government envisage that the guidelines issued by the Sentencing Guidelines Council in respect of offences in general will be incompatible with what is set out in Schedule 17? Those are the matters on which I should be grateful for some clarification.

In addition, what appears to be an error in the Explanatory Notes has been brought to my notice. It may simply be an omission from the Bill or it may be the way that the Explanatory Notes have been written. Paragraph 560 of the notes states that subsection (5), to which I have just referred, will enable the court to take into account, any additional guidelines that may be issued by the Lord Chief Justice or by the Sentencing Guidelines Council".

But, of course, Clause 262 states that the definition of "guidelines" in Chapter 7 of Part 12 is the same as in Clause 165(1)—namely, guidelines issued by the Sentencing Guidelines Council. Therefore, what is the purpose of that reference to the Lord Chief Justice? Was it simply a googly thrown in in error and not expunged later or is there something really relevant in that? I beg to move.

Baroness Scotland of Asthal

I hope that I shall be able to give the noble Baroness the assistance that she seeks. I shall not recite what each amendment says because I understand that they are all probing.

I believe that the concern raised in Amendment No. 209A is already provided for in the Bill. The issues of retrospectivity and the compatibility of transitional cases with convention rights were considered in the drafting of these provisions. Paragraphs 9 and 10 of Schedule 18 provide for judicial determination of tariffs under Clause 254 where the offence was committed prior to the commencement. But they stipulate that the court may not set a minimum term higher than it believes the Secretary of State would have set under the former arrangements. We believe that that is compatible with Article 7 of the convention. I hope that that sets the noble Baroness's mind at rest in relation to that amendment.

Amendments Nos. 210A and 210B would alter Clause 254(5)(b) to provide that the court, in setting a minimum term, must have regard to the general principles and any guidelines. The amendments would allow courts, in setting tariffs, to follow principles set out in general guidelines which were not compatible with Schedule 17. I understand that that is not what the noble Baroness wants, but she does want an answer. Therefore, the current drafting seeks to achieve clarity. It is not probable that the Sentencing Guidelines Council will wish to issue guidelines that are counter to legislation. Therefore, we do not anticipate a direct conflict between the mandatory life principles and any guidelines issued by the council.

However, the council will, on occasion, want to issue guidelines which cut across a range of criminal offences. In some cases, those might be properly applicable to murder tariffs; for example, the council might issue guidance on guilty pleas. Schedule 17 provides that the court may take into account guilty pleas when setting minimum terms. In other cases, the position might be more confusing; for example, the council might issue guidance on mitigating factors in criminal cases generally. It is possible that some of the content of such guidance would cut across the Schedule 17 principles were they to be applied to murder. Therefore, while the council might well never intend the guidelines to apply to murder, we wish to make it absolutely clear on the face of the Bill that courts should consider the Schedule 17 principles as paramount should there be any confusion

. Our intention is that Schedule 17 principles must be the overriding principles in setting minimum terms for murder cases. Therefore, I am unable to accept the amendment. I hope that the noble Baroness will see how the two fit together and why we have set out the provision in the way that we have.

Amendment No. 252ZA would remove the provisions allowing for the commencement of the new minimum term arrangements two weeks after Royal Assent. That would result in Chapter 7 becoming subject to Clause 305(3), which states: The remaining provisions of this Act come into force in accordance with provision made by the Secretary of State by order".

The introduction of the new arrangements would be delayed. That means that in the interim there would be no provision for adults convicted of murder to have their tariffs determined in a manner compatible with their convention rights.

That is the reason why we think that the amendment is not necessary. There are about 600 prisoners who have been convicted but have not yet received a tariff, so as a result of the Anderson judgment, this substantial number must be dealt with quickly and efficiently out of consideration for the human rights of the offender and to bring some closure for the family and friends of the victim. The longer we wait to bring in compatible arrangements for tariff setting the greater the number of those awaiting tariffs will grow. That will also increase the burden to be placed on the court system, which is substantial in any event.

I am grateful to the noble Baroness for bringing to my attention what is stated at present in guidelines. There may be a historical reference to the Lord Chief Justice not being superseded. I need to check that because I am also not clear as to whether they anticipate the position on the transitional arrangements where the Lord Chief Justice may have guidelines which would bite unless and until the new provisions come in. So, there may be that lacuna. However, it seems that it is one of the two. I shall certainly clarify that and write to the noble Baroness.

Baroness Anelay of St Johns

I am grateful to the noble Baroness. She has given clarity. Even though there may not be agreement among the Committee on the Government's objective or on how they are trying to achieve it, as she knows, we agree with much of what the Government are trying to do, but unfortunately— for them not for us—just not all of it. I am grateful to the noble Baroness for taking us further forward. I accept entirely what she said with regard to Amendment No. 209A and indicate now that I shall not return to that on Report. The noble Baroness has given assurances on compatibility with Article 7, which I accept.

I am intrigued by her explanation about the way in which the SGC guidelines indeed cut across Schedule 17 when they are not specifically aimed at it, but that Schedule 17 would override those issues. Again, I give notice that I shall not return to that on Report. I am grateful to the noble Baroness for saying that she will look at the reference to the Lord Chief Justice to see whether it is necessary for transitional purposes or whether it is just hors de combat. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

{Amendments No. 210 to 210B not moved.]

Lord Lloyd of Berwick moved Amendment No. 211:

Page 147, line 29, leave out subsection (6).

The noble and learned Lord said: In this group of amendments I do not want to say more on the question of whether any of the clauses in this chapter should stand part because they stand or fall with my earlier amendment. Therefore, everything that needs to be said has been said.

Amendment 211 relates to Clause 254(6) which provides that: The Secretary of State may by order amend Schedule 17".

My objection to that subsection is twofold. It seems to give back to the Secretary of State very similar powers to those of which he has lost as a result of the decision of the House in the case ofAnderson. I feel as certain as I can be of anything that a minimum sentence imposed under Schedule 17 amended pursuant to powers under Clause 254(6) will also be challenged in the courts on the grounds that such powers are inconsistent with the provisions of the Human Rights Act.

The second ground is similar to the objection advanced—at an earlier stage in relation to Clause 148. It will be remembered that under that clause, the Secretary of State was to have been given power to increase the sentencing limits of magistrates. There was then objection from all sides of the House to which, in the end, the noble Baroness gave way. So, happily, Clause 148 is no longer part of the Bill.

I say exactly the same about Clause 254(7), which seems to give the Secretary of State very similar powers to those which, as the noble Baroness conceded on the previous occasion, he is not entitled. I beg to move.

Lord Cooke of Thorndon

If I understand the Bill correctly—and I may well not have—I support what the noble and learned Lord, Lord Lloyd of Berwick, said.

Taken as a whole, the sentencing directions in the Bill are detailed to a degree perhaps unprecedented anywhere else in the English-speaking world. They could certainly hardly be supported by any strict adherent to the separation of powers. Overall, they could be seen—I repeat that I may not have fully understood them—as an approach to a take-over bid by Parliament and the executive of functions naturally belonging to the judicial branch of government. Problems under the European Convention could well arise.

In all the complexity, I shall concentrate on one point Schedule 17(8) contains a provision that could be the saving of the legislative scheme. It states: Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order". That appears to introduce a considerable measure of elasticity and enable the particular circumstances of a case to be taken into account. However, in the main provisions of the Bill, Clause 254(6) states: The Secretary of State may by order amend Schedule 17— which is an apparently unfettered and overriding power. I respectfully ask the Minister whether that is, as it appears to be, intended as a avenue for a significant transfer of the judicial function to the executive. If not, why is Clause 254(6) unlimited?

Lord Thomas of Gresford

I do not propose to repeat what I said on the earlier amendment before the break. I wish to ask a series of questions on this group. First, why have the Government chosen to introduce the provisions in Chapter 7 before the Sentencing Guidelines Council has even been created, much less had an opportunity to consider and to advise on the appropriate level of recommendation?

Secondly, why do the Government seek to ratchet up the minimum sentence? We heard a lot about that from the noble and learned Lord, Lord Ackner, who pointed out that the recommendations are to be ratcheted up by at least 50 per cent.

Thirdly, why is it necessary to remove judicial discretion at all? We have no degrees of murder in the United Kingdom. There is no distinction in sentencing between a killing where the intention is merely to inflict serious bodily harm as opposed to deliberately taking life. For that reason, one would have thought that the very widest judicial discretion is required in setting minimum terms. Judges recognise human depravity on the one hand, and human weakness on the other. There are many grades in between which they are trained to assess and to consider.

The imposition of what are effectively degrees of murder, as proposed in the schedule, is arbitrary. There seems no real reason why the murder of a policeman would attract 30 years as the minimum term, whereas the murder of a security guard would attract 15 years as the minimum term. I recall a case where a security guard in Hong Kong was executed by the robbers of a jewellery store. That sort of situation exists in this country. I do not understand why there should be a 15-year difference between two such separate situations.

Setting out a shopping list of aggravating and mitigating factors, compiled somewhere in the Home Office, is an insult to advocates, who, one would hope, would put forward mitigating factors—and, if prosecuting, aggravating factors—fully before the judge. There is no way in which he will not understand the particular circumstances of a case. Must he go through the checklist in Schedule 17 and give a plus for so much and a minus for something else in working out the appropriate sentence?

The noble and learned Lord, Lord Cooke, referred to the way in which the doctrine of the separation of powers is impinged upon in the proposals. It is surprising that a politician such as the Home Secretary should take it upon himself to introduce to such a Bill sentencing provisions of the nature that we are discussing, when his experience of courts is probably nil and his experience of the situations that give rise to the sort of cases that come before the courts is almost certainly minimal. Yet he and his department seem to feel that they can impose particular standards on people who have devoted their professional lives to such cases.

It appears that this is populism and vote-catching; it is not giving to the people of this country the careful and proper lead to which the noble Baroness, Lady Kennedy, drew our attention earlier. The whole purpose of the court system is to dispense even-handed justice between people who have committed crimes, to take away concepts of vengeance and vendetta and to try to return stability to society. Simply reflecting the popular will, which is what these provisions do, is no way to carry out the proper function of a Home Secretary. That is why we on these Benches oppose the whole of Chapter 7 in the way that is set out in these amendments.

Lord Borrie

On the scheme of the Bill, I find a great deal to commend in the way in which the purposes of sentencing are set out in Clause 135 and, if that is approved, those purposes of sentencing are approved by Parliament. Then, the Sentencing Guidelines Council, with its rightly mixed membership—it does not consist entirely of judges—lays down from time to time principles that judges will follow. Thirdly, there is the final independent discretion of the individual judge in the individual case to consider all the circumstances of that particular case over which he presides.

The real difficulty, however, is where the lines are drawn between each of those three parts of the scheme. We come to what I regard as the real difficulty in Schedule 17. One has to ask whether Parliament, in approving something like Schedule 17, should go down to the level of detail of particularity included in dividing up all the different possible circumstances in which murder is committed.

I freely draw on points made by a Liberal Democrat in the House of Commons—Mr Simon Hughes, their official spokesman—when he said that "invidious" distinctions are made in Schedule 17 between, for example, the murder of a child and the murder of a disabled person, or, alternatively, between the murder of a police officer on the one hand which is particularised, and the murder of some other equally important official acting in the public interest. That particularity, with which noble Lords may or may not agree depending on how one feels about those circumstances, is in tremendous detail in Schedule 17.

The point drawn out by the noble and learned Lord, Lord Lloyd of Berwick, on this amendment is that all of that particularity could be approved by Parliament if we agree. It could then—just like that—be amended at any point by the Secretary of State. Therefore, Parliament does not have the control. 1 am not suggesting that Parliament should have that degree of control over the particular differentiations between one type of murder and another, but certainly the Secretary of State should not.

Baroness Anelay of St Johns

The debate has ranged so widely that it may help the Committee if I introduce amendments on these issues that were in later groups, rather than tax the patience of the Committee by debating separate groups, especially in the light of what the noble Lord, Lord Borrie, has just said. The noble Lord draws our attention to the fact that the Government need to justify the different categories of murder that they have set out. With the leave of the Committee, I will refer to Amendments Nos. 212, 212B, 212C, 212D and 212F. All of those properly come within this particular response. I hope that gives the noble Baroness time to find the relevant parts in her own notes.

I can be very brief about Amendment No. 212, which is supported by the noble Baroness, Lady Linklater, the noble Earl. Lord Listowel, and the noble Baroness, Lady Stern. It refers in particular to the position of children and young people who are convicted of murder.

The Children's Society has briefed noble Lords on the matter. In another place, my right honourable friend Oliver Letwin and his colleagues made in clear in their debates on the Bill that we objected in the strongest terms to the inclusion of young people in Schedule 17. The Question whether Schedule 17 shall be agreed to is in the grouping.

There is a mandatory minimum term on conviction of murder for young people. Amendment No. 212 would ensure that, in cases involving children and young people, the discretion of the trial judge in setting the minimum custodial term in open court was retained under Section 60 of the Criminal Justice and Court Services Act 2000. The amendment would remove persons under the age of 18 from the provisions of Clause 254 and ensure that decisions on the length of detention in cases involving children were based on an assessment of the individual case.

At Third Reading in another place, the Home Secretary gave an undertaking to review the application of Clause 254 to children. As I mentioned earlier today, the Government offered a meeting on Monday this week about children in general that was, unfortunately, not able to go ahead. I hope that the Minister will give some indication of the Government's further thinking on those issues.

I move even more directly towards the comments made by the noble Lord, Lord Borrie. The intention of Amendments Nos. 212B to 212E is to probe for the rationale behind the Government's categorisation of the seriousness of offences as "exceptionally" or "particularly" high. Why have some former death penalty offences been, apparently, downgraded from the whole-life tariff? Paragraph 4 lists offences that, the Government say, constitute the most serious murders and, therefore, qualify for the whole-life tariff. Amendment No. 212B would add to the Government's list murders that would, in the past, have been considered to be death penalty offences. Why have they been omitted from paragraph 4? If there is a reason, the Committee and the general public should know what it is.

Amendments Nos. 212C and 212D are consequential: they simply delete the parts of paragraph 5 that I transferred to paragraph 4 as part of the probing amendment. Amendment No. 212B would also delete paragraph 4. Paragraph 5 imposes a starting point of 30 years, instead of life. Amendment No. 212E would delete paragraph 6, which provides for a starting point of 15 years for all murders not caught by the definitions in paragraphs 4 and 5.

As other noble Lords have said, we have an odd situation in which the Government are saying, "Although murder is murder, some murders are worse than others, and we will tell you what they are". They have not explained to us why they have decided that particular murders fall into particular categories. Before we take decisions on Report about how we might respond to the Government's proposals in Clause 254 and Schedule 17, we need that explanation. The Government have not yet made a cogent case for subjecting those convicted of murder to the new starting points.

I have tabled other amendments giving possible solutions to the problems with Schedule 17. It is right, at this stage, that I do not move those amendments. 1 need to reflect properly on what the noble Baroness says in response to the noble and learned Lord, Lord Lloyd of Berwick, on Schedule 17. The Government have kindly offered a meeting later this week about sentencing, so I will have time to reflect on what the Government say tonight and at the meeting. I can take account of all of that and come back with a new package of amendments on Report, particularly as my first attempt to provide some kind of negotiated peace settlement failed so spectacularly last week, when the noble and learned Lord, Lord Ackner, told me that everything was perfect and there would be no movement at all.

9.45 p.m.

Lord Lloyd of Berwick

First, I apologise for referring to Clause 254(7), which does not exist, instead of Clause 254(6). My amendment is narrowly drawn, but the debate has gone wider. The fact that I have not addressed the wider questions about Schedule 17 does not mean that I approve of it in any way. I do not. I entirely agree with what has been said by Members of the Committee on that point.

The point on my amendment was put much more clearly by the noble Lord, Lord Borrie, than it was put by me. It is for the reasons which he advanced more clearly than me that I suggest that Clause 254(6) should be left out.

Baroness Walmsley

I should like to add my voice to those already supporting Amendment No. 212, which is aimed at ensuring children under the age of 18 are removed from the provisions of Clause 254 and that it will remain at the discretion of the trial judge to set the minimum term in open court. Section 60 of the Criminal Justice and Court Services Act 2000 makes provision for that. On these Benches, we believe that that should be retained at all costs.

The starting point is that children should be treated separately and not simply as young adults. If they were, why should we bother with the youth justice system at all? The truth is that in using every criterion of civilised, sensible, informed and humane behaviour within our criminal justice system we recognise that children are not simply small adults. A different system, different criteria, different knowledge and different expertise, with a common humanity, dictates a different approach. This includes the Sentencing Advisory Panel whose advice to the Court of Appeal on minimum terms in murder cases was that Ministers should not set tariffs for juveniles sentenced to detention during Her Majesty's pleasure and that there should be a sliding scale related to age.

Part of the just and realistic sentencing of children is the recognition that they are, by definition, immature, both emotionally as well as socially and, often, physically as well. Therefore, they will change, mature and develop in a number of crucial ways as they grow up. A 15 year-old is simply not the same person when he is 17 years-old. All of us who have had children know that. Every parent has experienced the change that children go through during their teenage years. Most institutions in our society are predicated on that self-evident fact. Therefore, it seems entirely unreasonable to pass a sentence of 15 years, which is rigid and takes no account of that change.

Let us think, for example, of the difference between a 15 year-old and a 30 year-old. To inflict such a penalty without being able to take account of such change or development, and its implications for differences in levels of dangerousness, understanding, remorse or contrition and without bothering to take account of notions of forgiveness or redemption, is unacceptable.

There are very few children who commit murder each year. Their offences are so different that there are no detectable or useful patterns or guidelines which could give a rationale to a blanket approach. All that the children have in common is that they are deeply damaged individuals, usually from deeply damaged families. They are almost always victims, too. That is not an excuse, but it aids understanding of the situation with which we are faced.

Unless the trial judge can take into account the individual facts of the case and the age of the defendant, he or she will be denied justice. Article 37 of the UN Convention on the Rights of the Child is relevant here, as is Section 44(1) of the Children and Young Persons Act 1933, where it states that the welfare of the child should be paramount. We shall be coming to issues about that later in Committee.

The Sentencing Advisory Panel's advice to the Court of Appeal was that consideration should be given to the release of the child as soon as it is realistic to do so. As soon as the point has been reached where the child could safely be released, that should not be delayed. That, in turn, depends on the assessment being made in each case. I hope that the promised review of this clause in relation to children has happened and that the Home Secretary and the Minister can reassure us that common sense and humanity about children has prevailed.

The Earl of Listowel

I speak to Amendment No. 212 standing in my name and to illustrate, in another way, what the noble Baroness, Lady Walmsley, said. I recently visited a residential school for children with emotional and behavioural difficulties. The school has an excellent reputation in the field and had just had a highly favourable Ofsted report. The young woman who guided us through the classrooms had been in the habit, when she arrived, of punching out at staff and had broken the glasses of one staff member. Today she is entrusted to show around VIP visitors. A former pupil, a bright young Asian man, hailed the principal from across the lawn. This boy, once so wild, is now managing a BMW dealership. We heard of a deeply troubled girl who had recently returned to visit the school. She is now a grown woman, living with her husband, a steady professional man, and her young children. These individuals had managed to put their emotional and behavioural difficulties behind them; they had changed.

Children and young people who commit serious crimes are often also themselves vulnerable and poorly developed for their age. The principal of the school explained that swings were provided to be used by the 17 and 18 year-olds in the school. This child's play area was sited out of the view of children not attending the school and reflected the fact that those children and young people who have not had a full childhood need to experience their infancy at whatever age they are permitted to enjoy it.

On the same visit I enjoyed a game of Pelmanism with two seven year-old girls in the new junior school. Both had long, curly fair hair. They beat me at the game, perhaps because they had had more practice. I hope very much that, with the help of the school, they will be able to get to the root of their behaviour and experience achievement and recognition of that achievement, enabling them to become more at peace with themselves. But if they fail and if, heaven forbid, they harm someone else, I hope that the judge will be free to look at their actions and circumstances as a whole and determine the necessary sentence without undue government interference.

With regard to Schedule 17, the Minister conceded earlier that the length of custodial sentences for serious offences will increase significantly as a result of the introduction of starting points, as set out in the schedule. What of those who do respond well to rehabilitation and no longer pose a threat to the public? Are they to be kept in prison, unproductive and weighing down the taxpayer, removing resources from other prisoners and perhaps becoming hardened, embittered and irredeemably institutionalised? Only this morning, prison officers at HMP Grendon told me that they had had to remove therapeutic services from lifers and offer them to those who had committed less serious offences because, as I think I understood, of the pressure of prisoner numbers.

I shall not trouble the Committee any longer at this hour. I look forward to the Minister's response.

Lord Hylton

As a mere layman, I find Schedule 17 deeply undesirable. Be that as it may, however, Clause 254(6) surely confers almost unprecedented powers on the Secretary of State, whether he is minded to make the law more severe or more lenient, whichever way it might fall out. For those reasons, I strongly support the amendment moved by my noble and learned friend Lord Lloyd of Berwick.

Lord Chan

I rise to add a small point which is relevant here. I support all that has been said by the noble Baroness, Lady Walmsley, and by my noble friend Lord Listowel. The younger the offender, the greater is the ability and the potential for change. That should be taken into account.

10 p.m.

Baroness Scotland of Asthal

It may be appropriate if I respond first to the amendment tabled by the noble and learned Lord, Lord Lloyd, referring to Clause 254(6). I shall try to deal with that issue as briefly as I can. Perhaps I may say to the noble Lord, Lord Thomas of Gresford, that in speaking to the last group of amendments, I said much that would respond to the comments he has made. At this hour perhaps we may take it as read that I have repeated those words and I shall confine myself to this one issue.

Of course I understand the concerns that have been expressed by my noble friend Lord Borrie and by the noble and learned Lord, Lord Lloyd, echoed by the noble and learned Lord, Lord Cooke, and the noble Lord, Lord Hylton, that these provisions give the Secretary of State very wide powers. The order-making power—which is what this is—will be subject to the affirmative resolution procedure. Its purpose is to enable the Home Secretary to make amendments as appropriate. The schedule is very detailed. However, we cannot foresee all the mitigating or aggravating factors that may arise in the future that should properly be included. We recognise that there may be a need to respond to new circumstances which we cannot now envisage. Many circumstances have come to the fore in the past five or 10 years which appear to be significant, either by way of mitigation or by way of aggravation, and which should properly be included.

I hear what my noble friend Lord Borrie and others say about the particularity with which this issue has been looked at, and the comments of the noble Lord, Lord Thomas, about the somewhat mechanistic approach he described. The schedule describes the process that a judge goes through when trying to determine the appropriate sentence. He has to look at the circumstances of the offence, the aggravating features and what is said in mitigation before he arrives at a settled position.

Many noble Lords will have heard, as I have, of judges going through a similar exercise when determining the nature of sentence and explaining to the defendant and the public the way in which he has arrived at it. The judge will say, "I take into consideration the fact that this was a premeditated offence. I also bear in mind that at the time the victim was a person of tender age and/or mental incapacity", and so on. So, as the judge heads towards sentence, one sees that these are precisely the kind of issues that are expounded. We are not doing anything very unusual.

The other complaint is that this is micro-management—or, as the noble Lord, Lord Carlisle of Bucklow, would say, that we are teaching our granny to suck eggs. But there is a real issue of continuity, consistency and clarity, and anyone looking at these provisions will know the factors of aggravation and mitigation that have been taken into consideration. That should, we hope, assist in preventing ill informed comment.

The provisions will be subject to continuing parliamentary scrutiny under the affirmative resolution procedure.

Lord Lloyd of Berwick

I thank the Minister for giving way. Unless I have misunderstood it, Schedule 17 goes much further than setting out the process through which judges already go. Surely it sets out the starting points for particular types of murder—whole life, 15 or 20 years, whatever it may be. Subsection (6) enables the Secretary of State—at the stroke of a pen virtually—to change those starting points. I find that astonishing.

Baroness Scotland of Asthai

Let me make plain that at this moment it is not thought that it will be necessary to utilise this power. However, that is only because we cannot foresee every circumstance that might merit such a change. We know from the past five or 10 years that things do change. It must be right to allow the Home Secretary to bring an appropriate order before both Houses of Parliament and for Parliament to debate the issue and determine whether the proposals put forward by the Home Secretary are sound and acceptable.

Your Lordships will know, too, that I have said very clearly in dealing with the amendments spoken to before we adjourned that the Government feel very strongly that they should be entitled to express the will of the people and Parliament by setting the framework. The framework is what is included in Schedule 17, setting out, first, the different starting points and, secondly, the mitigating and aggravating circumstances which the court may bear in mind. That, we say, Parliament is entitled to do.

Let me turn to the amendments in the names of the noble Baroness, Lady Anelay, the noble Earl, Lord Listowel, and the noble Baroness, Lady Walmsley. I come first to Amendment No. 212, which proposes to exclude juveniles from the conditions to which the setting of the minimum term is subject. In fact, because the Bill also repeals the provisions in Section 82 of the Powers of Criminal Courts (Sentencing) Act 2000, which provides for juveniles to be given tariffs by the trial court, the amendment, as it stands, would leave juveniles without any right to receive judicially determined tariffs. I do not believe that that is what the noble Baroness intends.

I understand that the intention behind the amendment is to exclude juveniles from the application of the new principle. We think it is desirable and necessary to include juveniles in these provisions. It is very rare for murders to be committed by very young juveniles. Since 1998, figures have been kept for juvenile murders, divided into categories of 10 to 11 year-olds, 12 to 14 year-olds and 15 to 17 year-olds. The most recently available statistics show no murders since then by 10 to 11 year-olds, three murders since then by 12 to 14 year-olds and 15 to 17 year-olds committed 78 murders. Those figures show where the balance comes. It is mostly the 15 to 17 year-old age group that we are considering.

Cases such as the James Bulger killing are, thankfully, very rare. In the case of older juveniles, we do not think it right that there should be a very substantial disconnection around the age of majority. We would be worried, for instance, if the new principles were seen to apply to an 18 year-old, perhaps immature for his age, but not to a 17 year-old, perhaps mature for his age, where they have committed similar crimes.

We undertook, in another place, to review the principles in relation to juveniles. I am very grateful for all the views that have been expressed today about these matters, and we will be considering them very carefully. Our current thinking is that it is unlikely that we will want to remove juveniles from the framework altogether for the reasons that I have given. We believe that suitable provision can be made for the special needs of this group while including them within the scope of the scheme.

I was very much looking forward to the meeting which we were all due to have on these matters. I know that we will address these matters again later. I hope that under the circumstances the noble Baroness and noble Lords will feel able to withdraw this amendment. We are looking at this and will listen to what noble Lords have to say before we come to a final view. It would not be right to indicate that we have come to a final view yet because that would not accurately reflect the position.

Amendment No. 212A would limit the power of the Secretary of State to amend Schedule 17 on future occasions by ensuring that he may do so only where the Sentencing Guidelines Council has issued revised principles. We are not really able to accept the amendment. We believe that murder occupies a special place in the criminal justice system, that the offence is of a very serious nature—the most serious known to our criminal law—and the public rightly expect the authorities to ensure that the arrangements for sentencing for the offence afford adequate punishment for the guilty and adequate public protection.

I do not want to pre-empt a wider debate on the new scheme, as we shall come to that later. The Government remain fully committed to the continuation of a strong element of democratic accountability in the arrangements of the sentencing of murderers. Parliament is asserting, on behalf of the public, a legitimate role in relation to extremely serious crimes. It has been our concern in framing the principles to ensure that the element of democratic accountability remains.

I listened with great care to the comments of the noble Lord, Lord Thomas of Gresford. It sounded very much as if he was suggesting that these matters are for lawyers alone, that no one else need worry their heads about them and that, basically, they could be left safely in their hands. He seemed to be saying that, if one has the advantage of having a Home Secretary not burdened with a legal education, he in particular should not interest himself too keenly in these matters. I will say very gently to the noble Lord that his viewpoint is not shared by the general public. They believe that they have a view, and that their views have a right to be listened to and respected.

The amendment would not meet the need for Parliament to set the framework dealing with murder. An order made under Clause 254(6) is subject to the affirmative resolution procedure. The amendment would give rise to an odd situation: the principles are in primary legislation, and we would not accept that Parliament would need the authorisation of the Sentencing Guidelines Council before setting in legislation other sentencing issues such as maximum penalties and legislation. Parliament is the paramount authority; it would be very unusual for a specialist body such as the Sentencing Guidelines Council to have the final say in the use of Parliament's powers. That is the situation that the amendment would create, but I do not believe that it is what the noble Baroness, Lady Anelay, wants. She wants a discussion, but that is what her amendment would bring about, and I must resist it strenuously.

I move on to Amendments Nos. 212B, 212C, 212D and 212E, in relation to Schedule 17, to which I believe the noble Baroness, Lady Anelay, referred. The first three amendments would add to the category of murders with the starting point of a whole life tariff. The noble Lord, Lord Kingsland, and the noble Baroness would add the categories of, murder of a police officer or prison officer… murder done for gain and, murder intended to obstruct or interfere with the course of justice". I understand that the noble Baroness is picking those out to tease out how that will be dealt with.

We considered those points carefully, and it is a difficult task to weigh the factors that should affect the seriousness of the crime. I am grateful to the noble Baroness for her comments, but we do not believe that the amendments would strike the right balance.

The Government also regard with complete condemnation and repulsion murders that might be described as committed in cold blood to further a criminal career, and we recognise the need to protect. However, our conclusion was that the very heaviest penalties must bear on those who have committed multiple murders with features of special gravity; who have shown that they are capable of killing children to gratify their instincts; who consider themselves justified in taking others lives to further their ideological beliefs; and who, having previously been in prison for murder, have killed again. We believe that those must be considered the most dangerous and incorrigible offenders. For that reason, we attach the whole life tariff in relation to that category.

The murders to which the amendments refer will attract a 30-year starting point. That will produce substantially longer tariffs than have often been the case. Leon Brittan, in his 1983 statement on murder tariffs, said that murderers of police officers should serve at least 20 years. In practice, as the noble Baroness and noble Lords will know, that has tended to receive a tariff of between 20 and 25 years. Therefore, setting the starting point at 30 years enables the court to increase that tariff, if it deems that the nature of the offence is so grave. If for some special reason the court believes that the starting point is not appropriate, the court can adjust it as it deems necessary.

We have provided a very significant increase. I understand what the noble Baroness said about trying to balance putting one offence in one category and another somewhat differently. I hear what my noble friend Lord Borrie said about the making of those decisions being almost invidious. However, we think that it is important to make those decisions because of the need for clarity. I am sure that the Committee will have heard what I have heard on many occasions, particularly since entering my present post in June. I have heard people say that they do not understand how the system operates, what the judge takes into account, how judges make up their minds and why they reach certain decisions which treat the public so poorly. That is what the public appear to be saying. We need to provide clarity. The Government have sought to do that.

This measure constitutes a framework and a starting point. It is not, as so many have described it, a mandatory imposition of a sentence on a group of offenders who have committed a species of offence. It enables the court to tailor 1.he particular sentence to the particular facts but it gives the court a bracket within which to work.

Amendment No. 212E would strike out the lowest starting point of 15 years, which will apply to the majority of murders. We believe that there is a clear need to set a lower starting point. For one thing—

Baroness Anelay of St Johns

In my attempt to telegraph my amendments I did not make clear to the Minister the purpose of Amendment No. 212E to which I referred when speaking to the Bill team earlier this week. Its purpose is not suddenly to catapult these people into the higher bracket but to try to tease out why we should not leave that matter to the discretion of the judge. The Minister said that the Government intended the measure to be a framework and a starting point. That makes me think of the words of the noble and learned Lord, Lord Lloyd of Berwick, and his concern that the order-making power that is given so readily to the Secretary of State could mean that the framework and the starting point become totally outwith that which is described to the Committee tonight.

Baroness Scotland of Asthal

I understand that concern. However, as the noble Baroness will see, we have given a great deal of thought to how we should structure the measure. It has not been done lightly. The noble Baroness will know of the intense work that was entered into during the preparation for Halliday and as a result of Halliday. In trying to achieve a statutory structure which gives voice to those different elements, we believe that we have the right framework which draws a balance between parliamentary setting of the boundaries and judicial discretion. We do not envisage the measure being changed easily, but we appreciate that if empirical data and different circumstances result in the matter being re-examined there must be an opportunity for Parliament to have its say.

I know what is usually said about affirmative resolutions and the affirmative procedure—that you have a choice. You can either strike the measure down or let it go. If I have correctly gauged the flavour of this Chamber on this Bill, I know precisely the course that noble Lords on the Benches opposite and others might take if an order were to come forward with which they did not feel generally content. As for the operation of the affirmative resolution procedure in this setting, I am fairly confident that both Houses would have an opportunity to have their say. I am grateful that the noble Baroness is not seeking to say that the starting point of 15 years is necessarily wrong, simply that she does not want the current or any other Home Secretary to be able to change it without—

Baroness Anelay of St Johns

Again I have not made myself clear enough. I was trying to signal that I have a general unhappiness with the whole setting of mandatory tariffs in the sense we are discussing, if that is not a contradiction in terms. I was trying to be as gentle as I could in pointing out to the Government that perhaps some cases should be left to the discretion of the judiciary.

Baroness Scotland of Asthal

We say that the issues are left to the discretion of the judiciary. I do not have to remind the Committee of paragraph 8 of Schedule 17, which sets out quite clearly that: Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order". That gives the widest possible judicial discretion to do justice on the facts of the case, having taken into account the factors set out in the paragraphs that precede it and paragraphs 9 and 10. We would say that the balance was clearly there. I think that I have dealt with all the amendments.

The Earl of Listowel

I thank the noble Baroness for answering most of the questions on the amendment that we asked, but there was one area to which I do not think that she had an opportunity to reply. She has said that the consequences of the proposals will be that persons convicted of serious offences are likely to have longer terms in custody as a result. I hope that I understood that correctly. I am very concerned about that because, as recently as a year ago, guidelines on such sentences were decided on by the Sentencing Advisory Panel. Why the sudden leap in increases in sentences for serious crimes?

I am particularly concerned when I think of the numbers of such people who have been through the care system—more than 50 per cent, I expect, have had experience of foster or residential care. In at least the case of residential care, those people have been grossly let down over many years. Steps are being taken, but we have an awfully long way to go. Will such people actually be punished and penalised? Of course they have a large element of self-determination, but there is also a large element of societal neglect in their cases. I would appreciate an assurance from the Minister on that.

I want to express my disappointment that children will be included in the clause. However, I will look at how that works out technically, as the noble Baroness alluded to technical problems that would mean that it was important to include them.

Baroness Scotland of Asthal

In relation to the offences, I am not saying that the tariffs will automatically be higher in all cases. We are saying that the Bill now sets a clear framework. I have tried to describe how the provisions will interact to enable the court to make the right type of decision for the right type of offence. We say very clearly that the expectation will be that, if someone commits a multiple child murder in sadistic circumstances, the expectation for such an offence will be a whole-life tariff.

On the previous occasion that we debated the matter, I said that there were cases that demanded a whole-life tariff because of their particular seriousness and nature. The noble and learned Lord, Lord Ackner, did not dissent from that, and it is clear that the noble and learned Lords who heard the Myra Hindley case did not either. It is the judgment that was clearly made in the case of Hindley, and there may be very few cases to which the tariff should justly be attached. However, the fact that it should be attached is clear.

Of course I hear all that the noble Earl says about the numbers of people who have been in care who appear in criminal statistics. Members of the Committee will know that that is why we are working together, right across the piece, with health and all other agencies—inter-governmental and outside agencies—to provide the support and framework that will mitigate the damage caused to and by children who are removed from their homes because of lack of care, neglect or otherwise.

Noble Lords will know that I share passionately the concerns of the noble Lord about the work that must be done. That does not detract from the fact that some of those children, for whatever reason, then tragically find themselves within the category of persons who are, frankly, dangerous and who have to be cared for in a location of some security until it is safe and satisfactory for them to be released into the public again. The Bill incorporates provisions which would affect the kind of children about whom I speak.

Lord Thomas of Gresford

The noble Baroness refers to the framework for sentencing. I see it as a strait-jacket that is put together by people without hands-on experience of the courts, be they Home Office civil servants or the Home Secretary today who becomes the Foreign Secretary tomorrow. Contrast that with the judges of this country. No experienced judge is appointed to a criminal court nowadays who has not had 25 years of daily attendance at courts, hearing all kinds of offences and dealing with all kinds of people.

There is flexibility. The noble Baroness referred to changes. There are changes that happen quickly in time, and there are changes between one part of the country and another part of the country. For example, if one looks at recent history, who would have thought two years ago that terrorism of the kind that we are now facing would be such an important part of our lives? Who would have thought 20 years ago that drugs would become such an important part of society's ills? Who would have thought that there would be race riots in some of the cotton towns in Lancashire, or that there would be invasions of rural areas from urban areas in other parts, or terrorism in Wales? All kinds of changes come quickly forward.

The judge, with his or her experience of the courts and the system, is in a position to take on board changes that are happening all the time—it is a continuous process—and can, as a result, weigh what is, in the particular place and time, an important mitigating factor or an important aggravating factor. Those of us who are experienced in the criminal system all know how from time to time, in various parts of the country, the courts take upon themselves condign punishment of a certain type of offence. That is the kind of role for which courts are designed. Therefore, a strait-jacket from Parliament, from people without experience, must be compared with a flexible system of experienced professionals who know what they are doing. There is no comparison at all.

Lord Lloyd of Berwick

Mine is the first amendment in the group. I hope that the Minister will consider again the order-making power under Clause 254(6), just as she considered again the order-making power under Clause 148 and was eventually persuaded that that order-making power was not justifiable; nor is it justifiable here.

The Minister protested that the power would not be used very often. We have heard that argument over and over again in recent legislation brought before this Chamber. We have it heard it over and over again from the noble and learned Lord the Attorney-General. It is not an argument which is good enough for the Chamber. If they are sufficiently important, those matters ought to be addressed by primary legislation and not by the order-making power. However, having made that point, and giving notice that I shall want to bring forward the amendment on Report, I beg leave to withdraw.

Amendment, by leave, withdrawn.

10.30 p.m.

[Amendments Nos. 212 and 212A not moved.]

Clause 254 agreed to.

Schedule 17 [Determination of minimum term in relation to mandatory life sentence]:

[Amendments Nos.212B to 212E not moved.]

[Amendment No 2I2F had been withdrawn from the Mai shalled List.]

Schedule 17 agreed to. Clause 255 agreed to Clause 256 [Appeals]:

Baroness Scotland of Asthal moved Amendment No. 212FA:

Page 148, line 2, at end insert — (2) In section 8 of the Courts-Martial (Appeals) Act 1968 (c.20) (right of appeal from court-martial to Courts-Martial Appeal Court) after subsection (1) there is inserted— (1ZA) In subsection (1) above, the reference to a sentence fixed by law does not include a reference to an order made under subsection (2) or (4) of section 254 of the Criminal Justice Act 2003 in relation to a life sentence (as defined in section 262 of that Act) that is fixed by law. ".

The noble Baroness said: In moving Amendment No. 212FA, I shall speak also to Amendments Nos. 212FA to 212FD, 212HZA to 212HZD and 212HA to 212HG. These are all technical drafting amendments. They arise as a consequence of Clause 262 which interprets the scope of the minimum term provisions as including courts martial. Courts martial have similar powers and disposals to the general criminal courts in England and Wales and are therefore included in the minimum term scheme. Generally, these amendments make the requisite statutory changes for the provision in respect of minimum terms in general, criminal courts to be reflected in courts martial.

I can give a more detailed explanation but I am sure Members would not wish me to weary the Committee.

On Question, amendment agreed to.

Clause 256, as amended, agreed to.

Clause 257 [Review of minimum term on a reference by Attorney General]:

Baroness Scotland of Asthal moved Amendment No. 212FB: Page 148, line 12, at end insert— (2) Each of the following sections (which relate to the review by the Courts-Martial Appeal Court of sentences passed by courts-martial)—

1. (a) section 113C of the Army Act 1955 (3 & 4 Eliz. 2 c. 18),
2. (b) section 113C of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19), and
3. (c) section 71AC of the Naval Discipline Act 1957 (c. 53), is amended as follows.

(3) After subsection (3) there is inserted— (3A) Where a reference under this section relates to an order under subsection (2) of section 254 of the Criminal Justice Act 2003 (determination of minimum term in relation to mandatory life sentence), the Courts-Martial Appeal Court shall not, in deciding what order under that section is appropriate for the case, make any allowance for the fact that the person to whom it relates is being sentenced for a second time.".

On Question, amendment agreed to.

Clause 257, as amended, agreed to.

Clause 258 [Life prisoners transferred to England and Wales]:

Baroness Scotland of Asthal moved Amendments Nos. 212FC and 212FD:

page 148, line 15, leave out "a relevant order" and insert "one or more relevant orders"

Page 148, line 29, leave out from beginning to "an" in line 30 and insert "in the case of an offence which appears to the court to be"

On Question, amendments agreed to.

Clause 258, as amended, agreed to.

Clause 259 [Further provisions about references relating to transferred life prisoners]:

Baroness Anelay of St Johns moved Amendment No. 212G:

Page 148, line 40, leave out subsection (1).

The noble Baroness said: In moving Amendment No. 212G, I shall speak also to Amendment No. 212H. Clause 258 makes provision for the courts in England and Wales to determine the minimum terms for offenders who have been convicted of murder outside the United Kingdom and the other British islands and who consent to be transferred to serve their sentence in England and Wales. Clause 259 sets out the procedure for making such a determination. These two probing amendments seek clarification of that procedure.

First, in relation to subsection (1), I would be grateful if the Minister could explain why the determination is to be made without an oral hearing. Secondly, will she explain the purpose of the order-making power in subsection (7), which at first glance seems to be very wide indeed—particularly as the Committee has just debated its concerns about wide order-making powers. Why do the Government need this one too? I beg to move.

Baroness Scotland of Asthal

I hope that 1 can give the noble Baroness the explanation that she seeks. The legislation provides for a determination of tariff to be made on the papers by the High Court, and there is provision for an offender to appeal against that decision. We are alive to the implications of the Easterbrook judgment, and believe that our arrangements are compatible with Article 6—on appeal it will be possible for the offender to have an oral hearing. That applies to transitional cases and to transferred-in prisoners.

Given the practical situation, we believe there is fairness and common sense in the proposal to make tariff determinations on the papers. Around 600 prisoners who have been convicted have not yet received a tariff. To process all those on the basis of an oral hearing would take a very long time. There should not be undue delay in giving those prisoners a decision on what their tariff will be. Once a determination is given, that minimum term will not be raised on an appeal by the offender, although, of course, that could happen on an appeal against an unduly lenient sentence by the Attorney-General.

The clause struck out by the second amendment is a precedented provision. It appears in Sections 89 and 90 of the Proceeds of Crime Act, and it was used there for the same reason that we are proposing it now. It is a general rule-making power to set up procedures for appeals, and it prevents the need to make complicated amendments to the Criminal Appeal Act 1968.

I cannot yet give fuller details to the noble Baroness of what procedures might be proposed for these determinations and appeals. Officials are working with colleagues in the Lord Chief Justice's office to develop procedures that will deal with these issues fairly and expeditiously. I hope that, with that reassurance, the noble Baroness will feel content.

Baroness Anelay of St Johns

I thank the noble Baroness for her reassurances, which I accept. I shall not return to these matters on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 212H not moved.]

Clause 259 agreed to.

Clause 260 [Duty to release certain life prisoners]:

Baroness Scotland of Asthal moved Amendments Nos. 212HZA and 212HZB:

Page 149. leave out lines 22 to 27 and insert— ( 1A) This section applies to a life prisoner in respect of whom a minimum term order has been made; and any reference in this section to the relevant part of such a prisoner's sentence is a reference to the part of the sentence specified in the order.

Page 149, line 28. after "(lB)(a)" insert—

"(a) for the words from the beginning to "applies" there is substituted "this section does not apply to him", and (b)"

On Question, amendments agreed to.

Clause 260, as amended, agreed to.

Clause 261 agreed to.

Schedule 18[Mandatory life sentences: transitional cases]:

Baroness Scotland of Asthal moved Amendments Nos. 212HZC to 212HG:

Page 267, line 10, leave out "a mandatory life sentence" and insert "one or more mandatory life sentences"

Page 267, line 11, at end insert "(whether or not he is also serving any other sentence)"

Page 267, leave out lines 12 to 14 and insert—

""life sentence" means a sentence of imprisonment for life or custody for life passed in England and Wales or by a court-martial outside England and Wales; "mandatory life sentence" means a life sentence passed in circumstances where the sentence was fixed by law."

Page 267, line 16, after "who" insert "in respect of any mandatory life sentence"

Page 267, line 23, after "must" insert "in relation to the mandatory life sentence"

Page 267, line 33, after "prisoner" insert "in respect of the sentence"

Page 268, line 20, after "who" insert "in respect of any mandatory life sentence"

Page 268, line 25, at end insert "in relation to the mandatory life sentence"

Page 270, line 13, leave out paragraph 16 and insert—

"16 (1) In relation to an existing prisoner, section 28 of the Crime (Sentences) Act 1997 (c. 43) has effect subject to the following modifications. (2) Any reference to a life prisoner in respect of whom a minimum term order has been made includes a reference to—

1. (a) an existing prisoner in respect of whom an order under paragraph 3(1)(a) has been made, and
2. (b) an existing prisoner serving a sentence in respect of which paragraph 3(3) applies.

(3) Any reference to the relevant part of the sentence is to be read—

1. (a) in relation to a sentence in respect of which an order under paragraph 3(1)(a) has been made, as a reference to the part specified in the order, and
2. (b) in relation to a sentence in respect of which paragraph 3(3) applies, as a reference to the notified minimum term as defined by paragraph 3(4).

(4) In subsection (IB) (life prisoner serving two or more sentences), paragraph (a) is to be read as if it referred to each of the sentences being one—

1. (a) in respect of which a minimum term order or an order under paragraph 3(1)(a) has been made, or
2. (b) in respect of which paragraph 3(3) applies.

16A In section 34(1) of the Crime (Sentences) Act 1997 (c.43) (interpretation of Chapter 2 of that Act), in the definition of "life prisoner", the reference to a transferred prisoner as defined by section 258 of this Act includes a reference to an existing prisoner who immediately before the commencement date is a transferred life prisoner for the purposes of section 33 of that Act.

On Question, amendments agreed to.

Schedule 18, as amended, agreed to.

Clause 262 agreed to.

Baroness Anelay of St Johns moved Amendment No. 212J:

Before Clause 263, insert the following new clause—

"REVIEW OF UNDULY LENIENT SENTENCES (INDECENT PHOTOGRAPHS OF CHILDREN)

Part IV of the Criminal Justice Act 1988 (c. 33) (reviews of sentencing) shall apply to any case in which sentence is passed on a person for any of the following offences—

1. (a) offences under the Protection of Children Act 1978 (c. 37);
2. (b) offences under Article 3 of the Protection of Children (Northern Ireland) Order 1978 (indecent photographs of children);
3. (c) offences under section 160 of the Criminal Justice Act 1988 (c. 33) (possession of indecent photogiaph of child);
4. (d) offences under Article 15 of the Criminal Justice (Evidence, etc.) (Northern Ireland) Order 1988 (possession of indecent photograph of child);
5. (e) attempting to commit, or inciting the commission of, any of the offences described in paragraphs (a) to (d). "

The noble Baroness said: In moving Amendment No. 212J, I shall speak also to Amendments Nos. 252A and 257A. The amendments would apply to child pornography offences the powers available to the Attorney-General under the provisions of the Criminal Justice Act 1988 to apply to the Court of Appeal for the review of unduly lenient sentences. The amendments would extend to England, Wales and Northern Ireland, and Amendment No. 252A would ensure that the new powers came into force 14 days after Royal Assent.

Three years ago in the Criminal Justice and Court Services Act 2000, Parliament raised the maximum sentence for possession of indecent photographs of children from six months' to five years' imprisonment and the maximum for taking, making or distributing such photographs from three years' to 10 years' imprisonment. Those changes had full cross-party support. They were a response to the huge increase in the trade in child pornography that unhappily has accompanied the technological advances made in recent years—in particular, with the arrival of the Internet.

The Criminal Division of the Court of Appeal issued a guideline judgment in the case of R vOliver at the end of last year giving guidance to sentencingjudges on the length of sentences to be imposed for these offences using five levels of seriousness to describe the images involved. However, noble Lords will be aware that in many cases offenders who have committed many serious offences are, indeed, still receiving what appear to be lenient sentences. I could give examples but at this late hour shall desist.

My amendments would allow the noble and learned Lord the Attorney-General to apply for unduly lenient sentences in such cases to be reviewed by the Court of Appeal. The question arises as to why these very serious offences are not already included within the scope of the powers to which I have referred. Perhaps it may be simply that when Parliament enacted the powers in Part IV of the 1988 Act, the fact that the maximum sentences for the two classes of offence were six months and three years respectively meant that it was considered then that there was very little possibility of persuading the Court of Appeal that a sentence within the available range was not merely lenient but unduly so due to the relatively limited sentencing powers of the Crown Court at that time.

The position has now changed. The maximum sentence for possession is now nine times what it was in 1988. The maximum sentence for taking, making or distributing is more than three times higher. The range available to sentencing judges and to the Court of Appeal is much broader and in many cases non-custodial sentences are, I am told, being imposed for very serious offences indeed despite that increase in the maximum penalty.

We have talked much today about what is of interest to the public. It is very clear that these matters are of great concern to the public. Surely, those who contribute to the abuse of children by making and possessing these images should face prosecution and be punished severely. I believe that the amendment would put the Attorney-General in a better position, one which he should find to his advantage and to the advantage of the public. I beg to move.

The Attorney-General (Lord Goldsmith)

I start by saying something which I am sure will be readily accepted, but which is important to say. On these Benches we share the abhorrence referred to by the noble Baroness, Lady Anelay, at the conduct to which these offences refer. Children deserve and will receive this Government's continuing protection. That is why, as the noble Baroness said, with cross-party support the maximum sentence for these offences was significantly increased in the Criminal Justice and Court Services Act 2000. Should it be the case, or should it appear to be the case, that further measures are necessary to suppress this mischief, we shall not shrink from taking them.

As the noble Baroness said, the increase for the particular offences in terms of maximum penalty was substantial: from three to 10 years' imprisonment and from six months' to five years' imprisonment respectively for the two offences. The offence which previously had been a summary only offence became one triable on indictment. As the noble Baroness also said, since those higher maximum penalties came into effect in January 2001, there has been the important guideline judgment on sentencing by the Court of Appeal in the case of R v Oliver, Hartree and Baldwin. That set out the sentencing guidelines for the offences taking into account the revised maxima which had been introduced.

The guidelines will be very helpful in ensuring that the courts are clear on what is expected of them when it comes to sentencing for this kind of offence.

It is perhaps not generally known that although the unduly lenient sentence power provides an opportunity for me. on behalf of the public, to propose public policy considerations to the Court of Appeal when it is setting sentence guidelines or frameworks, that is not the only opportunity that I have. Following a particular guideline case, I agreed—at his request— with the Lord Chief Justice to provide counsel instructed by me to put forward public policy considerations in cases where, although there was no unduly lenient sentence application, there was a desire by the Court of Appeal to set a general guideline. That happened in relation to dangerous driving offences in the case of Cooksley.

So that is an opportunity to assist in setting sentences appropriate for the offence, taking into account public concerns when the Court of Appeal comes to do its job. That guideline judgment was delivered only late last year. So far, we have no formal statistical evidence about the overall pattern of sentencing in such offences since that case, but we have no reason to believe that the sentencing for those offences since then is especially lenient. It is perfectly possible—this frequently happens—that it is taking a little time for guidelines from the Court of Appeal to have full effect in the lower courts. But prosecutors who have been consulted are not aware and have no concern that the increased sentencing powers are being exercised inappropriately by the courts.

So it has not seemed to the Government that there is any case for adding those offences to the unduly lenient sentence scheme. Of course, it is possible for the Secretary of State to do so by means of secondary legislation, so the present amendment is by no means the only opportunity at which the matter can be considered; and we can keep it under review.

I turn to what may be a slightly delicate matter for me to raise in this context, which is the question of the additional burden that adding to the powers puts on me and my deputy. The way in which such cases are dealt with involves not just advice for the prosecuting counsel who has been involved and the local CPS, not just independent advice from independent Treasury counsel, which we always have commissioned; the matter is also considered in my office.

Ultimately, every decision to refer a sentence as unduly lenient involves the personal consideration of the Attorney-General—myself—or of my deputy, the Solicitor-General. Adding additional categories of cases to those which we can refer risks adding a burden to the work that is put on us, but also on the Court of Appeal. The Court of Appeal from time to time expresses concern about the burden on it. It takes each case referred by me seriously: it wants to ensure that they are properly considered, which means that a Court of Appeal must be set up.

Baroness Blatch

Does not the noble and learned Lord agree that if it is felt that an unduly lenient sentence has been awarded in the case of the three offences set out by my noble friend, the burden on the Attorney-General—indeed, on any part of the system—should not be an argument against my noble friend's amendment?

10.45 p.m.

Lord Goldsmith

I entirely agree that the burden on me is completely irrelevant. The burden on the Court of Appeal is a different matter. The Court of Appeal has a heavy job of dealing with cases: appeals against sentence; appeals against conviction. The more cases that are put in to the system on the resources given to the Court of Appeal, the slower justice may be for many.

One must balance those with the degree of concern that exists and the degree of need to refer particular categories of cases. The unduly lenient sentence power does not apply to anything like the majority of offences that can be tried or sentences passed. That is why I started by emphasising the Government's view— particularly given the increase in the sentence agreed and passed in the light of the guideline judgment provided by the Court of Appeal—that there does not appear to be a need to add these offences to the existing categories of cases that can be referred.

That points to the fact that further offences should be added only where there is a proven need to do so. That is why I referred to the question of the burden on all involved. There are many offences that one might desire to add to the existing scheme—indeed, many have been mentioned in the Committee—but there is no apparent need to add those offences at present.

We will monitor closely the operation of the increased sentencing powers for those offences. We will not hesitate to take action if a need to do so becomes apparent. That does not depend upon primary legislation, because there is an existing power under which it can be done by the Secretary of State through secondary legislation, as has been done on previous occasions. Those are the reasons for the Government's view that this is not the right moment to add the offences to the scheme. I invite the noble Baroness not to press the amendments.

Baroness O'Cathain

The noble and learned Lord seems to think that there is some merit in the approach and to realise the reasoning behind it, but he says that now is not the time. Does he think that things will get worse? When will be the time? Having listened to the noble and learned Lord very carefully, I get the strong impression that he feels there is a lot of merit in the approach. Why can he not adopt it now?

Lord Goldsmith

There is a balance. When the important power to refer unduly lenient sentences to the Court of Appeal was introduced, it was thought that very few cases would be referred. The Committee may recall that the power was introduced at the time of the Ealing vicarage rape, which is what caused its creation. Before then, we had no ability to ask the Court of Appeal to review a sentence.

The jurisdiction has grown. Very important cases have been referred. I mentioned dangerous driving, and I have personally argued cases relating to child sex abuse, rape and gun crime. They provide an opportunity to take important issues to the Court of Appeal. But there is always a balance to be struck as regards which offences to include. A general right of appeal on every sentence would result in a considerable burden. I do not say that it is an issue for me, but it would be an issue for the courts system and others who must deal with it.

There has been a significant increase in the maximum sentence, and the Court of Appeal has laid down clear guidance for the lower courts to follow. I do not understand there to be any criticism of that guidance. If it is followed, the result will be appropriately tough sentences for this very serious crime and there will be no need to refer cases to the Court of Appeal as unduly lenient. That is the reason for it. It is intended to strike a balance between cases where there is a prudent need to add at this stage and those where there is not.

Lord Thomas of Gresford

The noble and learned Lord has described well the system whereby advice comes from the prosecutor, through the C PS, who takes professional advice on sentence levels and argues the case before the Court of Appeal. Does the noble and learned Lord the Attorney-General e\cr go to Parliament to ask Members of Parliament for their views or to the Home Secretary to ask him what he thinks he should do, or is the matter just left to the professionals?

Lord Goldsmith

Why do I think that I have now returned to a previous group of amendments? The category of power that is used is a particular one. In the vast majority of cases with which I am concerned, I am aware from previous cases what the appropriate tariffs are However, there are occasions on which it is appropriate to examine other considerations. When I ask instructed counsel to argue about the tariffs in relation to dangerous driving, for example, it is appropriate to understand what the statistics are, what are the concerns from government departments relating to the levels of crime and deaths on our it roads, and what are the views of the public. Yes, there are parliamentarians who have expressed strong views about those issues as well, which it would be appropriate to take into account when considering how to address the Court of Appeal about the appropriate sentences to be passed.

Lord Thomas of Gresford

Will the noble and learned Lord tell us whether it is the views of the MPs, the newspapers and the Home Secretary that prevail or his own view—the professional view that he takes, having regard to previous cases and guideline cases in the past?

Lord Goldsmith

I hope that the noble Lord will forgive me, but this is plainly a debate about another amendment. The amendment to which I have been asked to respond is a very proper and important proposal in relation to a particularly serious crime. The Government are being asked to consider whether to add it to the unduly lenient sentence power. It is not right to hijack that important debate by returning to matters that the noble Lord has debated at some length with my noble friend Lady Scotland.

Baroness Anelay of St Johns

I am grateful to the noble and learned Lord the Attorney-General for his careful response. He started by saying that he shares our abhorrence of the conduct of people that results in the sentences we are discussing. I entirely accept that: he has made that clear throughout his distinguished career at the Bar as well. However, he says that, although he has some sympathy with the amendment, the time is not right or that there is no evidence to prove that this power of referral is needed. I am intrigued by that because in one breath the noble and learned Lord says, "The power is not needed. There is no evidence, so it won't happen", and in the next breath says, "Of course, we shouldn't mention this but were the power to be there we might end up with the Court of Appeal being over-burdened because of work". That argument does not work both ways.

Lord Goldsmith

I am obliged to the noble Baroness. I have been taken to task for referring to personal burdens so I am very anxious not to mention the point too much. I will talk about myself instead. I receive a large number of requests to consider references, many of which are not sent to the Court of Appeal at all because 1 do not think that they are appropriate. They come from prosecutors but also from members of the public. If we expand the category of the offence, all cases will receive applications. Each has to be carefully considered and each has a resource implication attached. Even in cases that are not sent, there is a burden.

Baroness Anelay of St Johns

Some burdens are worth it and child-protection is one. I wish to test the . opinion of House.

10.59 p.m.

On Question, Whether the said amendment (No. 212J) shall be agreed to?

Their Lordships divided: Contents, 24; Not-Contents, 39.

Division No 4
CONTENTS
Addington, L.	Montrose, D.
Anelay of St Johns, B.	Northesk, E.
Attlee, E.	O'Cathain, B.
Blatch, B.	Onslow, E.
Bridgeman, V. [Teller]	Russell, E.
Byford, B.	Selborne, E.
Chan, L.	Shutt of Greetland, L.
Cope of Berkeley, L. [Teller]	Skelmersdale, L.
Elliott of Morpeth, L.	Strathclyde, L.
Hodgson of Astley Abbotts, L.	Thomas of Gresford, L.
Lyell, L.	Tordoff, L.
Mar.C.	Walmsley.B.

NOT-CONTENTS
Acton, L.	Harris of Hanngey, L.
Andrews, B.	Harrison, L.
Ashton of Upholland, B.	Hayman, B.
Bassamof Brighton, L.	Hogg of Cumbernauld, L.
Berkeley, L.	Hunt of Chesterton, L.
Billingham, B.	Hylton, L.
Brookman, L.	Jones, L.
Campbell-Savours, L.	Macdonald of Tradeston, L.
Clark of Windermere, L.	Mclntosh of Hudnall, B.
Davies of oldham, L. [Teller]	Massey of Darwen, B.
Desai, L.	Pendry, L.
Evans of parkside, L.	Pitkeathley, B.
Evans of Parkside, L.	Ramsay of Cartvale, B.
Farrigton of Ribbleton, B.	Rooker, L.
Gibson of Market Rasen, B.	Scotland of Asthal, B.
Golding, B.	Smith of Leigh, L.
Goldsmith, L.	Stone of Blackheath, L.
Gordon of Strathblane, L.	Thornton, B.
Gould of Potternewton, B.	Warner, L.
Grocott, L. [Teller]	Whitaker, B.

Resolved in the negative, and amendment disagreed to accordingly.