House of Commons Hansard Debates for 4 Nov 1996 (pt 17)

6.20 pm

Sir Peter Lloyd (Fareham): The Bill is intended to provide better protection for the public, and nobody disagrees with that objective, although I share many of the concerns that have been expressed this afternoon by hon. Members of all parties; indeed, I have expressed many of them myself in earlier debates. The hon. Member for Islwyn (Mr. Touhig) made some extremely good points. I entirely agree with what he said about the length of sentence and its deterrent effect, or lack of it.

Before expressing my reservations about the Bill, I should like to assure my hon. Friend the Member for Hastings and Rye (Mrs. Lait), in her capacity as a Whip, that I am well and truly paired this evening and that I welcome her to her pathfinding place on the Treasury Bench.

The Bill, unlike myself and the hon. Member for Islwyn, assumes that longer sentences are especially effective deterrents and that criminals are calculators who examine the tariff before acting; common sense and bitter experience contradict that convenient assumption. Criminals rarely weigh the consequences of anything. That is especially true of persistent offenders who have been through it all before, some many times, and against whom the measures of the Bill are particularly directed.

The fact that offenders do not consider consequences is their problem, but it is also ours, because what can change their way of life is not length of sentence but what happens to them in prison and, just as importantly, how well they are supervised on release. Those points were made extremely well by my right hon. Friends the Members for Witney (Mr. Hurd) and for Mole Valley (Mr. Baker).

Some of my hon. Friends usually jump up at this point and say that it is plain that prison works, because the prison population has risen and reported crime has fallen. Crime statistics are a notorious quagmire into which some of the most seductive arguments can sink without trace, but one of the few clear facts is that reported crime figures began to fall not when the prison population had been increasing but immediately before it reached its lowest level for years, at the end of 1992. The figures have continued to drop, while the prison population has risen steeply; but now, with prisons overflowing, reported crime has apparently begun to rise again.

Perhaps prison has played a part in the falls in reported crime, which I hope will soon resume. As the Home Secretary says, prisoners inside are not outside

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committing crimes, but I suspect that prison is less important than improved policing methods and crime prevention initiatives, such as closed circuit television, for which he deserves great credit. He made it clear in the White Paper that he was targeting repeat offenders, and did not want an increase in sentences generally. He hoped and expected that the courts would cut the sentences handed down, so that those not subject to the mandatory sentences would serve no longer than they would have done under present arrangements.

Unlike the hon. and learned Member for Montgomery (Mr. Carlile), I doubt whether the judges will oblige the Home Secretary. They know that, under the new arrangements, most offenders will not be considered at risk or be supervised as well as they are at present. They will feel the need to restore appropriate differentials between sentences. They will find it difficult to cut every three-year sentence to 18 months or so, in the face of public expectation that the new law means longer inside and taunts from the media and others that they have gone even softer. I have a great respect for judges, but I doubt whether they will remember exactly what sentence they would have imposed before the law was changed.

The prison population will thus get even larger, pre-empting huge extra resources that could be better spent on crime prevention, better policing and more effective programmes in existing prisons. As well as being, at great cost, a not particularly effective deterrent, mandatory sentences will undoubtedly cause injustice. The Government were right when they rejected the idea, on those very grounds, in their 1990 White Paper.

There is no justice in giving the same mandatory sentence to a hardened drug trafficker who extracts a fat living from the misery of others and to a teenage addict who again sells some of his supply to a fellow addict; seven years in prison may be too short for the former, but it is the wrong sentence for the latter.

The Bill allows for a lower sentence in "exceptional circumstances", and we have had some debate on that today, but I am certain that that will be insufficient, and that discretion needs to be widened to allow a judge to give a lower sentence when justice and the public interest require it. That need not mean driving a coach and horses, as referred to by the hon. Member for Swansea, East (Mr. Anderson), through the Bill, although it might make a substantial aperture. There is no reason why judges should not have guidelines or a menu of minimum sentences, and be obliged to give reasons in court whenever they depart from them.

I do not believe that mandatory sentences will make the public safer, but, like other hon. Members, I am sure that the abolition of parole will make them less secure. It is true that 35 per cent. of parolees are reconvicted within two years, but that compares with 55 per cent. of non-parolees. Parole is a qualified success, which, in its present form, dates only from 1992, and it should surely be developed and refined rather than dispensed with.

A system of time off for good behaviour, run by the prison authority, is not a satisfactory substitute. Many of the most evil villains are model prisoners, because they want to get through their sentence as comfortably as possible and resume their criminal career. It is often the immature but redeemable who give the trouble.

The possibility of parole is not merely an incentive to good behaviour; it is the Parole Board's job to look behind the good behaviour and assess motivation and intention.

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The possibility of parole causes many prisoners to plan seriously for their release and to take steps to prepare themselves--something that they would not otherwise have done, and for the want of which they would be more likely to reoffend.

It is curious that the Bill would get rid of parole but still require the Parole Board to make sensitive and difficult judgments about when to release second-time violent offenders who, under the provisions in the Bill, would serve life. It is a pity that it is called life, as I said in an earlier debate, because the tariff recommended by the judge will almost certainly be the same as or less than the determinate prison sentence that he would pass under the present law.

Such sentences should be called what they are--open sentences--and they should be available for first-time violent offenders, too. I do not understand why prisoners convicted of serious violent offences should be released when they are clearly still dangerous. The merit of open sentences in such cases is that prisoners know that their release ultimately depends on them. They then have the most powerful incentive to develop the self-discipline and attitudes that will keep them from offending again.

I am sure that mandatory sentences are being over-promoted by the Bill because the Home Secretary is very conscious of the need to reassure the public about the Government's firmness in fighting crime, which I understand because he is right in his general concern. In doing so, he has, alas, made his policy less flexible than it should be, and it will thus be less effective and less just.

With this Bill, we will make the same sort of mistakes as we made in 1991, when we introduced unit fines. They worked quite well in the majority of cases, but in some they produced such ludicrous outcomes--and only a few instances are necessary for this to happen--that the scheme lost public respect and had to be abandoned. Much more seriously, there will be similar fallout from mandatory sentences, with a similar result.

The Criminal Justice Act 1991 also restricted judicial discretion and severely curtailed judges' ability to take previous offences into account. That also worked quite well most of the time, but, inevitably, in some cases it got heavily in the way of proper justice, and that clause was hurriedly and humiliatingly repealed, too. I hope that we will have the sense to row back sufficiently in Committee to avoid another such humiliating reverse, for if we do not improve the Bill, the subsequent Act will produce the hard, unjust cases that the public will rightly find unacceptable.

6.31 pm

Mr. Elfyn Llwyd (Meirionnydd Nant Conwy): It is a great privilege to follow such an informed, interesting and important speech from someone who knows a thing or two about what we are discussing.

I listened carefully to the Home Secretary, who prayed in aid at least three times the support of senior police officers for the Bill. Conspicuous by its absence was any reference to the opinion of the judiciary, the Law Society, the Bar Council or the probation service. I assume that the police officer support was not unqualified, bearing it in mind that the Home Secretary was heartily booed at a recent conference.

I have listened carefully to all the speeches, and I was especially struck by that of the right hon. Member for Mole Valley (Mr. Baker), who was firm in rejecting

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mandatory sentencing, as incorporated in clauses 1, 2 and 3. It was a powerful and persuasive speech by a former Home Secretary, who quoted from experience in other jurisdictions.

The Bill has as its core notion a version of the American "three strikes and you're out" laws that have so delighted the right wing in the United States. It is unfortunate, if understandable, that such matters should be brought to the Floor on the eve of a general election, because that acknowledges that the Government consider them vote winners.

I have no doubt that the public are heartily sick of crimes of violence, of burglary, and of people who sell drugs and trade in misery and death. That we should seek to address such problems is appropriate and desirable, notwithstanding the timing to which I referred. However, my concern is not with the principles that lie behind the Bill, which are laudable, but rather the chosen responses to those very real problems.

Let us consider the two-strikes law in respect of crimes of violence and rape. The previous and present Lord Chief Justices and several other members of the judiciary have expressed grave misgivings about applying mandatory life sentences in that area of law. They are highly qualified, articulate members of the judiciary, who are charged with dealing with and sentencing people on a daily basis. Before their appointments, they were proficient legal practitioners. Why is their expert opinion being brushed aside by the Home Secretary? Why cannot the Home Office listen to those who know about such matters?

The Home Secretary has taken legal advice many times in the past 18 months and has ended up on the wrong side of eight or nine far-reaching judicial decisions in the UK and European courts. Does the fact that he is not prepared to listen to expert advice result from the string of duff advice that he has recently received and followed? Perhaps that accounts for his deafness.

The views of the judiciary are made all the more potent by the fact that it would be the last body in the land to interfere with the legislature. Lawyers, perhaps more than anyone else, are acutely aware of the constitutional issues involved in so doing.

One difficulty with the Bill is that it creates a constitutional problem, because, under the division of powers, the legislature and judiciary must be separate and independent. That is a basic tenet of constitutional law, which is centuries old. It has been much written about by academics such as Professor Dicey. The protection of the people and the courts from undue political interference is a fundamental safeguard for society. Every despotism starts by trying to control the courts and lawyers. We seek to fetter the discretion of the judiciary at our peril.

Let us take the horrible offence of rape. We all agree that that is always a serious offence, but to impose mandatory life sentences on second offenders ignores the fact that, as with every sort of offence, there can be aggravating features such as physical or emotional injury, the use of a weapon, or cases where the offender was in a position of trust or entered the victim's home. Those and many other circumstances, if proven, make the offence an aggravated one deserving of a heavier penalty.

Under the Bill, that will not be possible, because, on second conviction, all defendants would be sentenced to life imprisonment. That is illogical and, I believe, unworkable. It is yet worse; as the Lord Chief Justice said,