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Noble Lords: Hear, hear!

Baroness Mallalieu: My Lords, protecting the public from crime and its consequences is an aim which we all share. It must be one of the most important roles of any government. To fight crime effectively, surely the battle must be fought on four different fronts and not fought

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simply by introducing a sentencing policy written at the apparent dictation of the rope and stick school of sentencing.

First, we must try to prevent crime--we must stop it happening in the first place--in ways drawn to our attention by the noble Lord, Lord Elton. Secondly, we must improve the detection of crime so that when it occurs we catch those responsible. Thirdly, we must make sure that we have a criminal justice system which is as fair and efficient as possible in ensuring that only the right people are convicted and properly dealt with. Fourthly and lastly, we must make sure that we have a penal system which is constructive and which discourages those who have offended from doing so ever again.

We on these Benches totally accept the fact that there is real public concern about potentially dangerous criminals returning to the community and there is real concern about sentencing levels, too. What troubles us is that the proposals in the White Paper are not merely wholly inadequate and inappropriate to meet those concerns but in some ways they are precisely the opposite and are counter-productive.

The White Paper refers to wanting greater honesty in sentencing. We on these Benches believe it right that every member of the public sitting in court, especially the victim, should know from what the judge says how long a defendant will serve in prison. That could, quite frankly, be achieved easily by requiring the judge to spell it out. He should be required to say, for example, "The sentence is three years and that means that you will serve 18 months if you behave yourself and then you will be released under supervision. If you commit any further offence in the following 18 months it is likely that you will be returned to prison to serve the rest of your sentence".

Instead of adopting that solution the proposals in the White Paper amount--I cannot mince my words--to a deception on the public who have been led to believe that they involve tougher sentences. In fact, they involve precisely the opposite and are also a recipe for chaos and disturbances in our prisons. What the Home Secretary is proposing in the White Paper is that, in essence, three years will mean three years. However, as the noble Lord, Lord Carlisle, pointed out, there would be a vast increase in the prison population. Dr. David Thomas of Cambridge University, using the present prison statistics, has estimated that that would mean 20,000 more short-term prisoners and between 5,000 and 7,000 long-term prisoners with whom our prison system, even with the planned expansion, could not begin to cope. Therefore, Michael Howard suggests that the courts will take full account of those changes when sentencing. In terms, that means that they will reduce sentencing levels.

I wonder whether the public understands what is really meant by those proposals. Does the public realise that the reality of what the Home Secretary is suggesting is that rather than having tougher sentences, they should be made shorter? In reality, will the judges cut their sentences by between one-third and one-half,

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particularly at a time when judges are often criticised in the newspapers for being too lenient? I doubt whether they will jump to cut their sentences in that way.

Therefore, in reality, through these proposals, the Home Secretary is appealing to the judges to bail him out for his proposed policy which, on the face of it, is tough but in reality will not be. If the judges will not do that, where does that leave the position of our prison officers? Under these proposals, they are to be stripped of one of the few powers which a prison governor has to assist in maintaining discipline and good order in a prison; that is, the power to encourage good behaviour and the power to punish disorder. Big talk is what we have heard, but the end result is a recipe for overcrowding in our prisons; a recipe for prison disturbances; and above all, a deception on the public.

The public is rightly concerned about dangerous offenders who may be released to commit further crimes, the sort of examples which the noble Baroness, Lady Rawlings, gave a few moments ago. The public deserve to be protected from them. But this document, this White Paper, does precisely the opposite. Its proposals for mandatory life sentences for all save a few exceptional sexual offences and offences of serious violence or serious sexual crime will have the effect that the rapist, facing life if identified by his victim, is given a positive incentive to commit murder. He will not receive a longer sentence if he does so, a point raised by Lord Justice Rose, which has not so far been answered in any way in this debate. There will be no incentive to the rapist faced with a life sentence to plead guilty, even in an overwhelming case. Virtually every such case will be contested to the hilt, with the consequent added distress to the victim and public expense. That is precisely what happens today where virtually every murder case, where the sentence is of course a fixed life sentence, is contested.

There is to be no incentive to the accomplice to serious violence or sexual offences--and often the evidence of an accomplice is the only means of obtaining a conviction--to plead guilty and give evidence against his co-accused, with the result that more guilty people will escape justice.

More victims of sexual assault, who are often required to give evidence against close relatives--and that applies particularly to children--often in situations where affection continues to exist or where there is heavy family pressure, will refuse to testify in cases where the consequence of a conviction will be a life sentence, with the result that more guilty people will escape justice.

Trial judges, of course, must have adequate powers to deal with a dangerous offender. They already have many powers. As we have heard from noble Lords who have been involved with sentencing over many years, they have the power to impose a life sentence for rape or serious violence with intent, and they often do so. There certainly is an argument for giving judges additional powers such as a reviewable sentence of the type suggested by the Butler Committee, to which the noble

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and learned Lord the Lord Chief Justice referred when he opened this debate. That is a matter which deserves serious attention and consideration.

But there can surely be no valid argument for reducing judges' sentencing powers by tying their hands. The trial judge is the person best fitted to pass the appropriate sentence. In most cases, he will have seen and heard the victim, the defendant and the eye witness. There is no suitable substitute for that experience in arriving at the right sentence. It is certainly not suitable to substitute a Home Secretary on an election trail.

I suspect that members of the public believe that sentencing policy should be, first, effective and, secondly, fair. I am concerned that the sentencing proposals in the White Paper are likely to produce more victims of crime and not fewer. Surely, when the Lord Chief Justice of England says to this House, as he has done today, that these Government proposals are likely to lead to real injustice, even this Government must listen.

5.50 p.m.

The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I, too, am extremely grateful to my noble and learned friend Lord Taylor of Gosforth for giving the House the opportunity to discuss the matters now before us. However, before I turn to that subject matter, I am sure that your Lordships will allow me the opportunity to join with other speakers in paying a sincere tribute to my noble and learned friend's achievements. He will retire with the warm good wishes of us all. We all admire his commitment, the clarity of his judgments, the elegance of his speeches and his warm personality.

I particularly appreciate my noble and learned friend's courage in the past few, sad weeks and his determination that, in view of the deterioration of his health, he should lay down the responsibility of his office. I hope that he will give us the benefit of his great legal talents in the judicial work of this House as long as his health permits.

Noble Lords: Hear, hear!

The Lord Chancellor: My Lords, I should also like to put on record the fact that there is no question from the Government side that my noble and learned friend the Lord Chief Justice speaks out of any animus to the Home Secretary. The Home Secretary is extremely appreciative of the great help that my noble and learned friend has given to him during the all too-short period in which he has held his present office. I know that often--because I have sometimes shared in that experience--answers are requested on questions of policy in a fairly short time. My noble and learned friend has always done his very best to respond constructively in that situation.

I should also like to say that many of your Lordships and many people outside the House have had the privilege of enjoying the musical talent of my noble and learned friend. He has always used that talent to seek to support charitable organisations and objectives, particularly those connected with the law. I am sure that

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all those organisations are very appreciative of that fact and that they share our sadness at the deterioration in my noble and learned friend's health.

I must now turn to the White Paper and the matters that are raised therein. Recorded crime has risen throughout the industrial world since the 1950s. There has been a tendency at times to regard that as inevitable. However, I regard that particular trend as unwise. The logical consequence of that could be a serious deterioration in the cohesiveness of our society, and potentially unsustainable increases in resources required for policing and for the criminal justice and penal systems.

The noble Lord, Lord Rodgers of Quarry Bank, referred to the significant decline in recorded crime over the past three years. I think that it is the largest fall over three years ever recorded and it suggests that the upward trend may not be inevitable. I would not want to claim too much from those reductions, but they do give hope. They underline the need for the Government to play their part in enabling all of us--all citizens, and not just the professionals in various parts of the criminal justice system--to sustain that improvement. My noble friend Lord Elton asked about references to the voluntary sector. I believe that paragraph 2.22 at least contains something which could be encompassed within that idea.

The proposals set out in the White Paper are one element in a four-part strategy which the Government pursue to tackle crime effectively. First, everything possible must be done to prevent crime from occurring. There is growing evidence of the success of closed circuit television, and there are new partnerships between the police, the private sector and local authorities. That is mentioned in paragraph 2.22 to which I have referred. The newly constituted police authorities and their chief constables are able to give a stronger local emphasis to local needs and objectives in crime prevention.

Secondly, the police must have the powers they need to detect and apprehend the guilty. The current Criminal Procedure and Investigations Bill contributes to that. We are making major changes in the way the police, with support where necessary from the Security Service, can tackle organised and serious crime. Thirdly, procedures must be in place to ensure that the innocent are acquitted and that the guilty are convicted. The procedural changes I have already mentioned are relevant here, as of course is the imminent establishment of the Criminal Cases Review Commission and other changes following the proposals of the Royal Commission of which the noble Viscount, Lord Runciman, was the chairman.

Fourthly, our main concern today is that we must ensure that those who are convicted are dealt with effectively and appropriately. The Government do not approach the question of punishment in any vengeful spirit. Our obligation to the public is to adopt measures which seem to us to be most likely to be effective and which command public support. We are not free to ignore public opinion. That particularly applies to the Home Secretary who is accountable to another place.

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The Government of the day must take careful note of public expectations and concerns in framing their policies because the structure of law and order in a democratic society rests on the broad consent of the population to the way their safety and rights are safeguarded. I believe that these proposals received considerable support when they were made public. The White Paper sets out detailed proposals on sentencing and invites comments by 30th June. Not surprisingly, given the short period of time since the White Paper was published, relatively few comments have so far been received. That is the question that I have been asked, and I had better answer it.

The Police Federation warmly welcomed the proposals. Some 25 or 30 letters have arrived from members of the public which divide almost equally between those who support the proposals and those who find fault with at least some aspects of them. No doubt most of the organisations which have an interest in the proposals will take time to consider their views and submit detailed responses towards the end of the consultation period.

As has been said, the proposals fall into three main parts. The first is under the heading "Honesty in sentencing". The Government believe that the public and offenders should know that a court's sentence means what it says. I believe, to a degree, that is generally accepted. My noble and learned friend the Lord Chief Justice commented on arrangements of the kind that we have now which, he said,

    "have the appearance of a charade with everyone engaged in a calculation of how much less than the pronounced sentence will actually be served".
This enrages victims and undermines public confidence in the criminal justice system. Accordingly, the Government propose that the present arrangements for parole and early release should be abolished. Instead prisoners will be able to earn a small discount by co-operation and good behaviour. All prisoners serving 12 months or more will remain under supervision for a period after they are released, and will be subject to recall by order of the court if they breach their conditions of supervision.

I believe that my noble friend Lord Belstead was the Member of your Lordships' House who had most to say on that aspect of the matter. He suggested a variant in the present arrangements for early release which would retain an element of parole as an incentive for long-term prisoners serving four years or more. This variant would not meet the Government's objective in introducing honesty in sentencing because there would not be--it is the objective of the proposals--a sufficiently close match between the announced sentence and the sentence served. The Government's proposals achieve this result while ensuring that prisoners continue to have an incentive for good behaviour in the form of an early release scheme, and those serving 12 months or more continue to be supervised for a period after release.

I turn now to the other two parts of the proposals. The reason, I believe, that there has been a change in Government policy in relation to this particular and narrow field is the realisation of the extent to which actual crime results from persistent offending. It is that

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realisation which has led to these proposals. There is no question of the Government scrapping the general principles of the 1990 White Paper about sentencing, and so on. It is focusing on the specific problem of persistence of two main kinds which has led to the proposals. They are structured to deal with those specific matters.

The proposal is that those who are guilty of the serious crimes which are mentioned in the White Paper--the sexual or violent offences which carry a maximum life sentence--should receive such a life sentence on a second offence unless there are genuinely exceptional circumstances. The offences covered by this proposal will include, among others, rape, attempted rape, attempted murder, manslaughter and wounding with intent to do grievous bodily harm. Examples were referred to by my noble friend Lady Rawlings.

The system proposed is that the judge should set the tariff, and the procedures for determining release will follow those which currently apply to discretionary life sentences for offences such as rape, not the mandatory life sentence for murder. In other words, the trial judge will set the tariff to be served for retribution and deterrence, and at the end of that period the parole board will determine whether it is safe to release the offender. In answer to my noble friend Lord Carlisle of Bucklow, there will be, as there is at present, in the discretionary life sentence the opportunity for the person concerned to be at the parole board and to be represented. In those circumstances, the parole board would be chaired by a judge. Neither the Home Secretary nor any other government Minister will play any part either in setting the tariff or in determining whether it is safe to release the offender.

The present situation is that where someone has committed two of these offences, and on the second occasion has been sentenced to a determinate sentence, that person must be released at the end of the determinate sentence although everyone knows that there is a high risk that once he gets out he will commit a third offence. I think that it has been recognised in the debate, in particular perhaps by my noble and learned friend Lord Lowry but also by others, that there is a problem here. My noble and learned friend the Lord Chief Justice referred to the Butler solution for it in relation to mentally affected offenders.

I submit to your Lordships that this is an important problem and that this is a solution to it. The proposal has a better hope of targeting those who are dangerous than leaving the matter to the judge at the beginning. The judge will have this in his mind at the beginning of what in all likelihood will be a quite long sentence. My noble friend Lord Carlisle of Bucklow said that it is difficult to determine whether it is safe to let someone out. We have had an illustration of just how difficult that is. It must be easier to determine whether it is safe to release someone near the time at which one is considering releasing him than eight or nine years previously. In my submission to your Lordships, this proposal is well targeted to a specific problem.

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My noble and learned friend the Lord Chief Justice gave the figures, which are not insubstantial. It is true that one could raise these by the Attorney-General's reference; but the question is not one of lenience or otherwise in respect of the particular offence. The real question is to produce within the judicial system, and covered by judicial order, a result which protects the people against someone being released when it is clear that that person is still a very great danger to the public having committed two offences of a kind which carry, as a maximum, life imprisonment.

The third proposal is that of minimum sentences in respect of those who commit burglary and are guilty of certain types of drug offences. In such cases it is a necessary part of the realisation that persistent offending is really the problem to have a structure under which the public at large, the judiciary and everyone else involved understand that the sentencing regime will become more severe if that persistence continues. Persistence is the difficulty that is specifically addressed by these proposals.

A number of questions have been raised. As was pointed out--and it is important--in both the mandatory life case and in the burglary and drug offences case an exception provides that, where injustice is to result for reasons that cannot be foreseen, the court shall have discretion. The precise terms on which the exception will be framed will be a matter very much for Parliament to determine.

The Home Secretary, as the member of the Government who has prime responsibility for policy relating to criminal law, has a duty to do what he sees as necessary to protect the public from dangers which they perceive. There is no question that the public do perceive considerable dangers from criminal activity in our present situation. My noble friend Lord Windlesham said that they may not be as great as some people feel. That may be so; but there is still a lot of it about. The account of these matters given by my noble friend Lady Rawlings showed just how real that perception is for many people. The Home Secretary has the responsibility to put forward proposals which seem to him to be effective.

The structure that he proposes in no way interferes with the independence of the judiciary. It of course limits the discretion of the judiciary in relation to particular cases; but it does not in any way interfere with the independence of the judiciary to reach the appropriate sentence within the structure of law laid down by Parliament.

All the remarks made in the debate will be carefully listened to and taken note of. Those who respond to the White Paper are perfectly entitled to publish their comments. I have no doubt that the Home Secretary will in due course publish an analysis of those comments. He may not publish the detail of every individual's comment unless that person has given an indication that he or she would like that to happen; but those who comment are free to publish on their own account.

One of your Lordships said that governments do not often change their proposals. I believe it was the noble Lord, Lord Rodgers of Quarry Bank. That is not my

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experience. The parliamentary process will itself give rise to opportunities for discussion. It is only fair to my right honourable friend the Home Secretary to say that he had planned to seek time in the other place for a debate on these matters. But when my noble and learned friend Lord Taylor of Gosforth proposed a debate in this House, in the very special circumstances, we thought it preferable that such a debate should take place. Now we have had it. I am very grateful to my noble and learned friend, as he knows.

6.10 p.m.

Lord Taylor of Gosforth: My Lords, I am most grateful to all those noble Lords who have spoken this afternoon and I am particularly grateful for the very kind expressions of personal regard, which I am sure were far better than I deserve. I am also grateful to my noble and learned friend the Lord Chancellor for replying on behalf of the Government. Perhaps I may also single out the contribution of my noble and learned friend Lord Cooke of Thorndon in his maiden speech. I hope that it will be the first of many occasions on which he is able to contribute to our debates.

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There is something familiar about a pattern of events in which my noble and learned friend the Lord Chancellor valiantly defends Home Office proposals for which he is not directly responsible from an onslaught of criticism from those noble Lords who are perhaps most knowledgeable about and experienced in the criminal justice system. Perhaps I may say that we appreciate his difficulties.

However, there is one important difference today in that we are debating not a Bill but a White Paper. The Government have offered up these proposals for consultation and, we must presume, will take the responses seriously. Therefore, I hope that the Home Secretary will treat today's debate as a valuable opportunity to listen to your Lordships and to think carefully about the views which have been expressed. It is possible that, in doing so, he may conclude that on some points he has been mistaken. None of your Lordships would quarrel with his aim of attempting to reduce crime and protect the public from dangerous criminals. Our objection is that these proposals will not achieve that aim. My Lords, I beg leave to withdraw the Motion.

Motion for Papers, by leave, withdrawn.

        House adjourned for the Spring Bank Holiday at thirteen minutes past six o'clock.

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