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Mr. Maclean: Does the hon. Gentleman accept that the Attorney-General can refer a case as being lenient only if it stands out from the generality of similar cases in the leniency of the sentence given? There are hundreds of cases on which the Court of Appeal has determined--and which are within the sentencing framework--where it is not possible for the Attorney-General to refer them, and only the House can decide whether the generality of cases is too serious or too lenient.
Mr. Llwyd: The Minister raises a serious point and I agree with him to a certain extent; the mechanism by which the case initially comes to the Attorney-General's attention is questionable. Surely, what the Minister and
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I have said constitute reasonable arguments for increasing the number of Attorney-General's staff and for having a better and statutory form of supervision and research into the various sentences being handed down. Perhaps the system needs changing--I know not. At present, it is not adequate and does not seem to work.
The matter was referred to in a lengthy article in The Times of 26 November 1996, which stated that in regard to the annual total of references by the Attorney-General there were 26 in 1990 and 81 in 1995. Most of those references were for grievous bodily harm and robbery--22 and 26 per cent. respectively. Curiously, and interestingly, rape came in a poor fourth or fifth--at 11 per cent. It is important to consider that subject. I agree with the Minister to a certain extent that perhaps it would be reasonable for the set-up for initially referring matters to the Attorney-General to be changed; he cannot be expected to do everything with the staff available to him.
In serious cases which do not attract a life sentence, offenders normally receive long fixed sentences. Those are followed by lengthy periods of supervision on licence from which the offender can be recalled at any time if his behaviour causes concern. Those arrangements provide substantial public protection. If a serious repeat offence occurs we should ask why, if re-offending was genuinely predictable, the power of recall to prison was not used. If it was not predictable, even with an automatic life sentence the Parole Board might well have decided in favour of release with no consideration given to recalling the offender.
Automatic life sentences could actually weaken public protection by increasing the risk of wrongful acquittals. In an interesting speech at King's college, London on 6 March last year, the former Lord Chief Justice, Lord Taylor of Gosforth, commented:
In addition to an increase in not guilty pleas, with attendant delays in the courts and probable increased distress to victims who have to give evidence, the prospect of an automatic life sentence will undoubtedly deter some victims and witnesses from giving evidence against the offender. That is an important point and one that was raised on Second Reading by a senior Member of Parliament on the Government Benches, who knew what he was talking about.
Similar considerations apply in cases of domestic violence. On Second Reading, the right hon. Member for City of London and Westminster, South (Mr. Brooke) said:
The mandatory life sentence will provide an incentive for a greater use of plea bargaining so as to avoid such problems--for example, agreements to accept a plea of
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The Bill provides that the court would have discretion not to pass the automatic life sentence in the exceptional circumstances to which I have referred and which we were unable to obtain from the Government during the whole of the Committee stage, with the exception of a single example, to which I have also referred. However, the White Paper emphasised that that provision would apply only to "occasional quite unforeseeable circumstances".
The Government reached the correct conclusion on the issue of mandatory sentencing in their earlier White Paper, "Crime, Justice and Protecting the Public", which was published in 1990. It stated:
I believe that that is a highly objectionable proposal. At present, the main statutory principle governing sentencing is that sentences should be proportionate to the seriousness of the particular offence. To require the imposition of minimum sentences, whatever the circumstances, will prevent courts from achieving proportionality and justice in sentencing. As Lord Taylor commented on 12 October 1995 in a statement on the Home Secretary's speech at the 1995 Conservative party conference:
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As the right hon. Member for Fareham--from whom, no doubt, we shall hear later and I look forward to hearing his contribution--said last year:
The proposals will not only cause injustice, but will have a range of practical ill-effects. For example, they will damage intelligence gathering about drug trafficking operations because small-scale user-dealers will have little incentive to co-operate with the police in helping to build a case against major traffickers if the seven-year minimum sentence prevents courts from reflecting that co-operation in a reduced sentence.
On Second Reading, the Home Secretary argued that that sort of assistance would fall within the definition of "exceptional circumstances". However, co-operation with the police does not amount to what the White Paper called "quite unforeseeable circumstances" because it is neither unusual nor unforeseeable. Even if the court were to regard it as an exceptional circumstance, the Bill would require the judge to give his or her reasons for a reduced sentence in open court. That could put the informant at serious risk and thereby destroy any incentive to co-operate and it would put out an entirely wrong message to individuals in a similar position.
The Criminal Justice Act 1991 provided that courts could pass suspended sentences only if there were "exceptional circumstances". The Court of Appeal has interpreted that provision very narrowly. As Lord Bingham, the present Lord Chief Justice, said on "Breakfast with Frost" on 10 November 1996:
I return to what the right hon. Member for Fareham said on 28 October:
"Minimum sentences are incompatible with an existing and important strand in our criminal law. The courts have long followed a policy of discounting sentences for timely pleas of guilty . . . Defendants who know they will receive a mandatory sentence of lengthy imprisonment, and even more so, a mandatory life sentence, are not likely to plead guilty."
Similar comments made in The Times of 12 March 1996 by Helena Kennedy QC have already been referred to, so I shall not quote them again.
"grievous bodily harm with intent is not uncommon in a domestic context . . . Would the family be prepared to give evidence if life imprisonment were the consequence?"--[Official Report, 4 November 1996; Vol. 285, c. 952.]
That is an important point, which we should all ponder carefully.
"The Government rejects a rigid statutory framework, on the lines of those introduced in the United States, or a system of minimum or mandatory sentences for certain offences. This would make it more difficult to sentence justly in exceptional cases."
With regard to minimum sentences, clause 2 requires courts to impose mandatory minimum sentences of seven years on offenders convicted of trafficking in class A drugs. I have not a shred of sympathy for people who peddle drugs--they deserve everything they get. Clause 3 provides a minimum sentence of three years for offenders convicted of domestic burglary if they have had two or more previous convictions for similar offences. Here, again, the court would have discretion not to pass the mandatory minimum sentence if there were "exceptional circumstances". However, the White Paper emphasised that:
"it will certainly not be open to the courts to set aside the mandatory sentence merely because it is higher than the sentence they would otherwise have been minded to impose."
In other words, the court could not pass a lesser sentence simply because it considered that to impose the minimum length of sentence would be unjust.
"Judges . . . must be free to fit the particular punishment to the particular crime if justice is to be done. Minimum sentences are inconsistent with doing justice according to the circumstances of each case."
The seven-year minimum sentence will apply not only to the repeat offender who directs large-scale trafficking, but to the small-time addict sharing drugs with those in a similarly dire position. As Lord Taylor said in another place, the proposal
"will simply fill our prisons with addicts who sell small quantities to support their own addiction."--[Official Report, House of Lords, 23 May 1996; Vol. 572, c. 1026.]
The three-year minimum sentence for repeat burglars will apply not only to the professional burglar against whom, I am sure, the measure is aimed, but to the drunken
"there will be quite a few cases where such sentences will be visibly unjust and counter-productive.
I know that other hon. Members on both sides of the House share my concerns about this aspect of the Bill.
For example, young drug addicts who sell small quantities of drugs to other addicts will get the same sentence as professional drug pushers . . . The same applies to opportunistic inadequates stealing from the homes of other people getting similar sentences as career housebreakers".--[Official Report, 19 June 1996; Vol. 279, c. 908.]
"In a very closely related context the courts have had to construe this exception recently and they have done what Parliament intended and they have put a narrow construction on it. They have treated psychiatric problems, financial pressures, family difficulties and threats of suicide as not being exceptional. In the run of criminal cases, these kinds of explanations are coming up all the time and so a judge is going to have to, to be true to the intentions of Parliament, put his hand on his heart and say 'Is this exceptional?' and usually it will not be."
The Court of Appeal has made it clear that a combination of factors which in themselves are features common to many cases--youth, an early plea, provocation, mental breakdown--does not amount to exceptional circumstances justifying a suspended sentence.
"It will not be sufficient to allow judges discretion just in cases where there are exceptional circumstances, as the Bill presently does. The problem will come with cases in which a"--
I cannot read the next word--
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