| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Thomas of Gresford: My Lords, does the noble Lord support the concept that a judge when sentencing should explain in detail how much time a prisoner will serve, how much will be on licence and all the circumstances surrounding that sentence? Would that meet the noble Lord's concerns as regards the public failing to understand what sentencing means?
Lord Tebbit: My Lords, I realise that has not been the custom and there have been various pressures against it to date. However, it would be a good thing were it to be done. However, as I have said, we are now at the stage where it is probably almost too late to regain the confidence of the public by so doing.
A second feature of public concern is that habitual criminals seem not to suffer an appropriate penalty for repeated offences. The noble Lord, Lord McIntosh of Haringey, referred to the view of my right honourable friend Kenneth Baker that many of those in prison are professional prisoners rather than professional criminals. He is probably right. However, the man in the street would probably say, "It may be that there are some in prison who should not be there, but there are a darned sight more who are out of prison who ought to be there". That he would see as the purpose of this Bill.
In some cases of violence and some sexual offences the maximum sentence is life. That is rarely used. Indeed, life terms are not often served even by those guilty of homicide. I remind the House that since 1963, 87 people have been killed in England and Wales by persons previously convicted of homicide and subsequently released to kill again. That does not say too much for our efficiency in deciding who should be released from gaol. The rate of such killings is, sadly, increasing and currently runs at about four cases a year.
We are told that in 1994 more than 200 offenders convicted of a serious sexual or violent crime were reoffenders. In their case prison had not worked, nor was it given a proper second chance to do so by keeping those offenders out of circulation. Fewer than 5 per cent. received the life sentence which was available to the court. Even those, of course, would be able to be released should the Parole Board so decide. One has to ask whether it is right that courts seem determined not to use the sanction which Parliament has provided to protect the public?
So far I have not heard a good enough answer to that question. Therefore, I intend to support the proposals put forward by my right honourable friend the Home Secretary. That also applies to the proposed mandatory sentences for professional dealers in hard drugs. As
I understand it--I seem to have been corrected by the noble and learned Lord the Lord Chief Justice--that would apply to people casually selling the odd ecstasy pill. I hope that is not so, because I believe that is not what the public would understand by a professional dealer in hard drugs. It is important that people who are tempted to commit such crimes should know the penalty they will pay for a third offence, and not be able to delude themselves that they will get away with a sob story of some kind and a lighter sentence.The same is true for professional burglars. Here Parliament has prescribed a maximum sentence of 14 years. However, I am told that even after multiple convictions the average sentences are under two years. When my noble friend replies to the debate perhaps she will tell us how often, if ever, that maximum sentence which Parliament has prescribed is used.
Finally, the proposals to improve the supervision of sex offenders seem to me to be a step in the right direction. Clearly there is room for discussion about all these provisions, as indeed there is on much else in the Bill. No doubt there will be discussion in plenty. Overall, however, I welcome the Bill because I believe it is in line with the views of the general public and will do something to restore the confidence of the public in the judicial system. Perhaps that is the most important reason for having it. I hope that at the end of the day, whatever the outcome of the Bill, it will be a step forward in the process of restoring the confidence which I believe the public have lost in our judicial system.
4.58 p.m.
The Lord Bishop of Oxford: My Lords, there are a number of reasons why the Church of England has a deep interest in this Bill. First, we have chaplains in every prison in the country, ministering to both inmates and prison officers. This is a frontline ministry, offering its own special perspective on these important issues. Secondly, we have parish priests on the ground in all the areas most affected by crime. Even in Oxford I have one vicar living on an estate whose vicarage has been broken into five times in as many years, and that is by no means exceptional. Your Lordships may well remember the parish priest working on such an estate in Liverpool who was killed last year in the course of his ministry. Therefore, we certainly endorse 100 per cent. the Home Secretary's stated intention to make sure that there are fewer victims.
It is against that background that I express a number of real worries about the Bill before us. First, it is fundamental to both considerations of justice and the legal system that punishment should be proportionate to the crime. Automatic life sentences for those who have been twice convicted of certain serious violent or sexual offences allow virtually no discretion for the judge to take into account mitigating circumstances. For that reason the General Synod of the Church of England, when debating the system of mandatory life sentences in 1995, firmly rejected that system. It was strongly felt that it could give rise to many injustices.
Let me take one example from the area of marriage and family violence which has much concerned the Church of England recently, as it has this House. In the
Synod debate, Chancellor Conningsby, gave the example of the wife physically abused by her husband. She attacked him but he had not provoked her immediately before the assault. She did not mean to kill him but she did so. The judge did not wish to sentence her to life imprisonment for murder, but under a system of mandatory sentences, if in relation to the Bill it were a second offence, he would have no option but to do so.It is true that the Bill before us offers the possibility of that not being the case if,
- "there are exceptional circumstances which justify not doing so",
In relation to the mandatory custodial sentences of at least seven years for drug trafficking offences and three years for domestic burglary, I should like to highlight the potentially damaging effects of that on certain kinds of offenders. As I understand it--if I am wrong I hope that the Minister will put me right--the mandatory sentence does not enable a distinction to be made between the large-scale trafficker in drugs who certainly deserves a really heavy sentence and addicts who sell small quantities to support their own addiction. Similarly, in the case of burglary no distinction would be made between the hardened professional criminal and the amateur teenage burglar desperately trying to find money to feed his drug habit. And this leads to a fundamental point.
Mandatory sentences will prevent judges in many cases from passing a sentence which is most likely to prevent reoffending. As we all know, an increasing number of burglaries are driven by the need to feed the drug habit. A survey in March 1996 by Cleveland Probation Service of a sample of offenders convicted of three or more burglaries found that 36 per cent. had drug-related problems. This underlying factor frequently does not become evident until after an offender has been convicted on a number of occasions. Where such an offender is willing to co-operate with the probation officer combined with participation in a drug rehabilitation programme, this is much more likely than imprisonment to prevent further offending. If mandatory prison sentences were in operation the courts would be forbidden to use this option. Although courts have the power not to impose the minimum sentence in exceptional circumstances, situations such as this are far from exceptional and, therefore, could not be appealed to by the court.
This in turn leads on to an even more fundamental point, which is why I and so many in the Church find this Bill deeply dismaying. Huge sums of money are to be spent building and maintaining new prisons. On a conservative estimate this will result in additional recurring costs of between £375 million and £435 million per annum some 12 years after implementation. There are more effective ways of using this money to combat crime.
I entirely agree with the noble Lord, Lord Tebbit, about the importance of deterrence. There is no doubting that that is crucial in the kind of fallen society in which
we all live. But it is well known that the length of a sentence in itself is not a deterrent. The only real deterrent for a criminal is the high probability that he will be caught. As the noble Lord, Lord Tebbit, put it, it is the prospect of being nicked. This points to the conclusion that if more money is to be spent, it would be better spent helping the police to be as effective as possible in catching and prosecuting criminals. Then there is the fact that some alternatives to prison are now much more effective in preventing reoffending. Research suggests that some types of community supervision can reduce reoffending by between 20 per cent. and 50 per cent. more than other types of work with offenders. Those include a range of highly focused programmes which confront and change anti-social attitudes and offending behaviour, teach offenders to restrain aggressive and impulsive behaviour, tackle alcohol and drug problems and provide skills, training and employment. The research indicates that these programmes have better results when carried out in the community than in custody, though they can also be effective when applied in prison settings.In the long term, and one of the advantages of being a bishop is that we can and should think in the long term, there are still more fundamental and more effective ways of tackling crime. The additional annual expenditure eventually needed to finance the proposals in the Bill would be equivalent on a conservative estimate to the annual cost of 200,000 nursery school places. A similar point can be made in relation to the parenting programmes which are so desperately needed. Serious research in America shows that every dollar spent on parenting programmes saves up to 6 dollars that would have to be spent during adolescence on crime prevention and welfare provision. Money spent at an early age helping parents and nursery schools provide an ordered, caring environment is the only way in the long run in which a government can tackle the roots of crime, for people's patterns of behaviour go awry at a very early age and it is both difficult and costly to change those patterns later in life.
There is sometimes an unhelpful polarisation on penal debates between those who are allegedly tough on crime and those who are allegedly soft. We all need to be tough on crime. Crime is, quite simply and without qualification, totally unacceptable. But we then have to explore as quietly and rationally as possible the most effective ways of reducing crime. This Bill is disappointing because in the judgment of many in the Church it takes penal policy in totally the wrong direction: one that is costly, unlikely to work and potentially unfair. At the same time, alternative, better, ways that are more likely to work, more cost effective and designed for the next generation as well as this have not been followed.
5.7 p.m.
Lord Woolf: My Lords, a predecessor of the present Home Secretary suggested that prison was an expensive way of making prisoners worse. If this Bill is implemented, it is my fear that it will prove to be an extremely expensive way of making the criminal justice
system worse. The Bill has perhaps some virtue in relation to fine defaulters, and the transfer of prisoners. But its principal provisions are objectionable on at least six grounds. First, it will result in injustice. Secondly, its proposals, if implemented, will have constitutional implications which are undesirable. Thirdly, it will damage the prison system. Fourthly, it involves profligate expenditure of public money. Fifthly, it will result in dishonest sentencing practices. Sixthly, it is unnecessary.I can deal briefly with my views on those six points because my noble and learned friend the Lord Chief Justice has already extensively covered the subject with great eloquence. I must, however, start off with the principal concern of any judge: that is justice. With the exception of murder and matters such as disqualification which fall within a totally different category, the present situation with regard to the sentencing of serious crime is that Parliament sets a maximum sentence and the judiciary determines what is the appropriate sentence in all the circumstances. If the judiciary gets it wrong--as it can do, by imposing too heavy or too light a sentence--then a higher court can review the sentence if necessary and alter it. That is surely a just way of sentencing.
The Bill promotes injustice because it intends that a sentence should be imposed regardless of the particular circumstances of a particular crime or a particular offender. The escape clause will have limited application, and is intended to have limited application, since otherwise there would be no purpose in having the provisions contained in Clauses 1 and 2 of the Bill. The generality of offences are to be dealt with in the same way, regardless of the circumstances and the personality involved.
I listened with interest to the suggestion by the noble Lord, Lord Rodgers, as to the possible alternative of introducing instead the interests of justice. I do not believe that will meet the problem. If a judge is to be free to do what is in the interests of justice, then that is what he does at present; we shall be back to the present position, which may be the right position.
By removing the discretion of the judiciary, the Bill changes the constitutional balance in this way. If Parliament passes the Bill, the judiciary will give effect to it. However, giving effect to it involves the judiciary surrendering what has up to now been its traditional role, a role which by training and experience it is particularly equipped to perform. The Bill deals only with certain offences. However, it creates a precedent. It is a departure from our traditions. It sets a precedent which, once established, will undoubtedly be followed by further interventions in the future. It involves the legislature taking over what has hitherto always been accepted to be the proper role of the judiciary.
In this country we have no written constitution. Our liberties have been protected by a careful constitutional balance between the different arms of government. The executive, the legislature and the judiciary are usually sensitive in not trespassing upon each other's role. That sensitivity involves self-restraint. So long as there is restraint, the protection which a written constitution
would provide is less necessary in this country than in other parts of the globe. One of the regrettable features of the Bill is the way in which the legislature is interfering with what in the past was never doubted to be a judicial function.I turn to the prison system. Regrettably, at the present time that system is subject to immense strain. After I made the recommendations contained in my prison report, the Government of the day accepted those recommendations and embarked upon a programme to implement them. So far as I am aware, the Government have never publicly departed from that policy. There is no doubt that for a time the prison system made great steps forward, with consequent benefit to the public. Prison regimes were more constructive than they had been in the past. However, the past three years have seen that progress reversed. The prison system is now subject to the sort of stresses that brought about the Strangeways riots. The same pattern is reappearing. There was very recently a prison riot which, had it not been handled with commendable skill, could very easily have resulted in another Strangeways.
The Bill's message is that sentences should be increased. It is the increase in the prison population that is presently taking place and continuing at an alarming rate which has prime responsibility for the strains that now exist within that system. Already, over-crowding is undermining the ability of the Prison Service to do positive things within that system. It has been said by this Government that it is not the Government who send people to prison; it is the judges. In the past that could be said, although it is not entirely true. If this Bill is implemented, it will be less true.
It is not entirely true that the judges are responsible. Levels of sentencing are influenced by the rhetoric at a particular stage. In the present situation, the two major parties and the media are calling for longer and longer sentences. It is hardly surprising that in that situation sentencing has risen in a way which the Government never anticipated and which is causing embarrassment to the Prison Service in the way I identified.
I listened with great concern to the remarks of the noble Lord, Lord Tebbit, about the fact that from time to time members of the judiciary speak in public about their concerns in relation to matters of this sort. It is a matter that has concerned me; namely, the propriety of a judge speaking outside this House on matters of this sort. It may be that judges sometimes feel it essential to take part in public debate on such issues since, otherwise, the public will not have the benefit of their experience on a subject that is peculiarly their own.
It is a fact that the public are confused. As the noble Lord, Lord Tebbit, indicated, there is a lack of public confidence in what is happening in the courts. But if no explanation is given to the public other than by the judiciary as to what is possible and what steps can be taken which are practical and realistic, there are dangers that the public may be misled by the siren calls that they hear from time to time that the solution is to adopt proposals of the sort contained in the Bill. I say to the noble Lord, Lord Tebbit, that it is perhaps preferable
that, with moderation and circumspection, senior members of the judiciary explain these matters to the public rather than their not being explained at all.I do not believe, with the noble Lord, that it is too late for the public to understand the true situation. However, I accept that there is a heavy burden on those who have responsibility in these matters to ensure that the public are fully informed.
I wish to mention one further matter in regard to proposals in the Bill relating to minimum sentences. I have had the opportunity to be at conferences abroad where judges from different jurisdictions have been present when the advantages and disadvantages of proposals of this nature have been debated. In particular, I have had the opportunity of discussing these issues with a number of United States judges. They are astonished that we are not learning from their mistakes. They tell me that the dangers of fixed sentences can result in dishonesty in sentencing practice, and that that dishonesty can undermine the confidence of the public in the criminal justice system.
A very senior and experienced judge from New York explained to me what happens. A defendant is prepared to plead guilty to an inappropriate plea. That plea is accepted in order to avoid what would be an inappropriate mandatory sentence for the offence which was undoubtedly committed. The judge co-operates in the practice to avoid having to impose an inappropriate sentence. There are dangers because it puts immense pressure upon a defendant to plead guilty to a lesser offence so as to avoid the risks of contesting a more serious offence. There are grave dangers because the person who was the victim of the crime cannot recognise what is happening in court as what he or she experienced. I urge upon your Lordships that this is not a course which we should seek to follow. As to expense, which has been referred to, I cannot advance on what was said by previous speakers.
My Lords, I do not believe I can usefully add to what I have said.
5.20 p.m.
Lord Hutchinson of Lullington: My Lords, it is with a substantial degree of humility that one follows two devastating speeches by the noble and learned Lords the Lord Chief Justice and Lord Woolf. One wonders where we are getting to. Has it ever happened before that a Minister comes here to defend clauses in a Bill affecting the criminal law when the judge presiding over the Court of Appeal (Criminal Division) condemns those clauses as unjust, unworkable, irremediably flawed, misdirected, radically unsound and self-defeating?
The noble Lord, Lord Tebbit, speaks with confidence about the public. He says that the public want the clauses. I am sorry that he is no longer in his place, but all Home Office research shows that when the public--particularly victims--are questioned and informed, they are not punitive, as the press would have us all believe. In fact, victims repeatedly want young offenders to be rehabilitated rather than sent to rot in gaol. If only
tabloid journalists would inform rather than inflame the public, we should have a much better reaction from them.I wish to concentrate on Part I of the Bill and on the practical effects of those clauses and the confusion and disruption to which they will give rise in the whole criminal process. The first point, which has already been made, is that the operation of the criminal process is not in the hands of the Home Secretary but those of thousands of dedicated men and women, some professionals, some laymen and some volunteers. The system will only work if those people understand and approve the law and the philosophy which lies behind it. Yet, so far as I can see, every single agency in the criminal process condemns the clauses. It is only the police and, according to the Minister, the Labour Party, who support them.
The second point is that, as a result, changes in the system take a long time to work through and become effective. The third point is that the people who operate the law are not politicians; they do not wish to become part of the political arena.
As we know, the last great change came about in the 1991 Act, born of the 1990 White Paper. The new philosophy reflected years of research and inquiry in which many of us in this House had a hand. The Home Office research unit, the Carlisle parole review, the magisterial Woolf Report, NACRO, the Prison Reform Trust and the 30 bodies in the Penal Affairs Consortium all made major contributions, as did the academic world. There were innumerable seminars and workshops, increasingly attended by judges, police officers and academics. All that led in 1991 to a remarkable consensus, a watershed, helped along, I like to think, by some well-informed debates in this House in which we had valuable exchanges with a number of Ministers who were both emollient and flexible. One of them, the noble Lord, Lord Belstead, will speak in this debate.
Perhaps I may quote the one passage from the 1990 White Paper, Crime, Justice and Protecting the Public, which encapsulates the consensus which was achieved. Paragraph 2.16 of the White Paper stated:
- "It is not the Government's intention that Parliament should bind the courts with strict legislative guidelines".
- "The courts have shown great skill in the way they sentence exceptional cases".
- "The courts will properly continue to have the wide discretion they need if they are to deal justly with the great variety of crimes which come before them".
- "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".
- "It could also result in more acquittals by juries, with more guilty men and women going free unjustly as a result".
As we know and have heard, the principle was that offenders should serve 50 per cent. of their time in prison and 50 per cent. in the community or as recommended by the Parole Board. They should not be let out on the streets absolutely free, as the noble Lord, Lord Tebbit, said, but let out subject to strict conditions and supervision, with sanctions of return to prison and an added sentence should they offend again. That is now called dishonesty in sentencing and a charade. Yet if it was explained by the judge on sentencing, it was effectively designed to help victims and the public by reducing--as it has--the rate of reconviction.
Let me remind the noble and learned Lord, Lord Woolf, although in his presence, of what he said in his report. He quoted the Director General of Prisons:
- "The life and work of the service for the last 20 years [in the prisons] has been distorted by overcrowding. That single factor has dominated prisoners' lives and soured industrial relations".
- "The canker of overcrowding must be rooted out."
As a result of these policies the prison population fell to 43,000. As Sir Peter Lloyd, Home Office Minister at the time, made clear in the other place, crime began to fall in 1992, before the increase in prison numbers and the Howard reforms. Just as the new policies were beginning to bed down, the Home Secretary has decided to dismantle them all. As we heard, there are already 58,000 prisoners now in prison. The canker referred to is not being rooted out but in fact fed. The estimated huge expenditure of £1.2 billion on 12 new prisons--the last one, just finished, cost £92 million--is in order to create an American-type "warehouse" for offenders.
Judges must now reverse their policies. They must hand down sentences which they consider unjust and cease to operate judicial discretion. The only example that the Minister gave of a mandatory sentence was disqualification for a driving offence. With great respect to her, that is no parallel at all. If one is given a licence to do something--say, a licence to drive a car--and one breaks the terms of the licence, obviously part of the penalty is to remove the licence. That is completely and totally different. It has no parallel with removing judicial discretion to impose a proper penalty across the board.
What is to happen to the Judicial Studies Board which was to teach sentencers to follow the new policies five years ago? Is it to start teaching something completely different from its teaching for the past five years? It puts the board in a completely impossible position.
I wonder whether the Minister understands the realities of what goes on in the criminal courts. There has been some reference to that but perhaps, as an old practitioner, I may make some points to her. All those
with long experience of sentencing know that serious offences vary infinitely. There is the brutal and dreadful rape. Yet, far more often, there is the difficult and delicate case. Did the young woman consent or did she, at the last moment, change her mind? Did the man genuinely believe that she had not done so? Were they both the worse for drink? Did she make the allegation out of remorse or as a result of pressure afterwards? A man with a conviction for any offence under these clauses will be wide open to blackmail for ever afterwards.As we have heard, burglaries can consist of stealing a milk bottle or a radio from a garaged car. Manslaughter can involve quite a light blow after a closing-time row or a fall on one's head on a hard surface. And, of course, there are cases of diminished responsibility. Surely the Minister knows only too well--indeed the House has already heard--about young people kicked out of miserable homes, who drift into city centres and are corrupted in a drugs environment.
An analysis found that in 35 per cent. of the cases which have come before the courts and which fall into the category that now carries a life sentence the judges took the view that there should not even be a sentence of imprisonment. Is it seriously suggested that those 207 cases in which it was considered by trained judges that a life sentence should not be imposed--35 per cent. of them not even attracting imprisonment--are now to attract life sentences? I suggest that that is grotesque.
The noble Lord, Lord Tebbit, asked why the maximum sentence is not imposed. The maximum sentence is not imposed because justice does not demand the maximum sentence to be imposed by people who have sat in court and heard hundreds of thousands of cases and who can make up their minds, I should have thought, more seriously and with recourse to more experience than a Home Secretary who has never been inside a criminal court.
Mr. Douglas Hurd, the architect of the 1991 Act, pointed out in the other place what still cannot be hoisted in by the Government: for however long offenders are incarcerated, 99 per cent. of them will be released onto the streets in the end--the ever revolving door, more people in and more people out. The only question for the public is how many of those people who come out will go straight and how many will continue to offend. As we heard from the noble and learned Lord the Lord Chief Justice, incapacitation, as it is called, has but a very small long-term effect.
Lastly, of those who object to these clauses, perhaps not the least significant is the organisation, which I am sure will be known to the Minister, called WAR: Women Against Rape. What does Women Against Rape have to say about the clauses? It says that under them, women and children will have less protection from rape than hitherto. It is a curious combination when Women Against Rape and the Lord Chief Justice say exactly the same thing about these clauses.
The Home Secretary has made many mistakes. As we know, he has acted unlawfully on no less than 14 occasions. But surely the most unforgivable thing
that he has done is to play up for populist political purposes his differences with the judges. That surely is unforgivable in the holder of such a great office. It has done and continues to do grievous harm to the delicate balance in our constitution between the judiciary and the executive, to which the noble and learned Lord, Lord Woolf, referred. The judges have been put in an impossibly difficult position, a position where, inevitably, because of the Home Secretary's attitude, they appear to get involved politically. The noble Lord, Lord Tebbit, fell for that appearance. The removal of the judges' discretion to do what they constitutionally have a duty to do is, I suggest, wholly wrong and should have no place in the Bill.5.40 p.m.
Baroness Young: My Lords, unlike previous speakers I should like to begin by thanking my noble friend the Minister for introducing this Bill this afternoon and, if I may say so, for explaining it so clearly. Perhaps I may underline the point that she made; namely, that it is a Bill that received overwhelming support from another place. Like my noble friend Lord Tebbit, I listened with great interest to the speech of the noble Lord, Lord McIntosh, and understand the Opposition will not vote against it. There may be disagreements on the detail of the Bill, but I understand the Opposition support the main principles.
It is unusual for me to enter into what might be described as a "law and order" debate. I am not a lawyer, nor have I ever been a magistrate--though I have twice been asked to be one and would have liked to do so. There is a great deal of concern today about the breakdown of law and order, and I venture to speak as a member of the public. I was surprised to hear the statistics given by the noble Lord, Lord Rodgers, about the numbers of people who are concerned about the breakdown of law and order. That is not my experience, though I admit that I have not read the Home Office report to which he referred. A great many women are afraid to go out at night and a great many people--no doubt some Members of your Lordships' House--hesitate to take the underground or travel by train after a certain time of night. That is not because they have been raped or violently attacked, but because there is a genuine anxiety and that anxiety needs to be recognised.
I did not hear in the speeches any mention of the anxiety of parents in relation to drug taking. Drug taking is a modern evil and there are few schools which have not experienced it one way or another. I can say confidently that there is not a parent in the land who is not worried, not only about the pusher at the school gates or somebody who picks something up at a party, but that behind those people stand extremely evil people doing a lot of damage. That is something we need to recognise.
I listened carefully to the speeches that have been made. When one is a professional dealing with such matters it is easy to say that all that is being proposed is wrong. But I hope that those who are dealing with the Bill realise that those on the other side of the argument have an equally important case to make; they are
concerned. We have not been as successful with policies concerning law and order as we would have liked. There is a feeling, rightly or wrongly, that the law, however defined, appears so often to favour the criminal rather than the victim; that the victim's real anxieties are not understood.In saying all that, I do not believe that the man on the Clapham omnibus ought to be deciding penal policy; that would be an absurd proposition. But there needs to be a balance in all this. I was interested that the noble Lord, Lord McIntosh, quoted from the speech of my right honourable friend Mr. Hurd in the Second Reading debate in another place in which he said that the British system of justice is in the hands of a variety of people. What he did not add was the statement at the end of the paragraph when my right honourable friend went on to say,
- "Criminal justice measures will not work unless those people work them. That means that they must be listened to--I emphasise that--although their voice is not decisive. In the end, Parliament must decide".--[Official Report, Commons, 4/11/96; col. 934.]
I said at the start that I was not a lawyer. Throughout my life I have been involved in the subject of education. We saw a situation in which employers and parents thought one thing and the educational establishment thought another. In fact, the law, as it were, had got out of kilter with what a lot of people believed should be happening. We found that educational policy, supported by teachers, university departments of education, education advisers, professors and so forth, all went one way. In the end, Parliament intervened and laid down a number of principles such as the national curriculum and testing assessment because Parliament has a duty to determine between opposing views. At the end of the day, the educational establishment was overruled by Parliament. That was upsetting to the experts because their professional judgment was being called into question; many people felt that the policies did not work. There is now general agreement on the matter and educational standards will rise as a result.
In a way, we are in the same kind of position in relation to law and order. I do not believe for one moment that passing this Bill will automatically put right all the problems of law and order. That is not a sound proposition. It is a step in the right direction, but I would be the first to say that we need other measures as well.
What does the Bill do? It respects the reasonable desire on the part of the public for further protection against the criminal. No one has suggested other alternatives, except ones which have nothing to do directly with the criminal justice system. The Bill introduces mandatory sentences for certain serious offences. I hope that when my noble friend replies she will spell out what those serious offences are.
As I understand it, the Bill says that there will be automatic life sentences for second-time--that is the important point--serious violent and sexual offenders. The noble Lord, Lord Hutchinson of Lullington, said that women felt that they were more likely to suffer from rape under those provisions than otherwise. I do not follow that argument. It seems to me that a second
serious offence must be committed before the automatic life sentence comes into operation. If I am wrong about that, perhaps my noble friend will correct me.The second issue in the Bill is that there will be stiffer minimum sentences for persistent house burglars who have committed serious offences. I find it difficult to believe that that includes stealing a milk bottle. It would make a mockery of the whole situation if that were the case. As I read it, we are talking about much more serious matters; for instance, in relation to drug dealing, we are talking about hard drugs. Those are the people we wish to be caught by the provisions. It has been said that one Ecstasy tablet is not all that dangerous; but I believe it was one Ecstasy tablet that killed a girl not so long ago. All those matters are extremely serious and dangerous and we have a duty to deal with them as best we can.
I understand that on a third conviction hard drug dealers can be sentenced to four years' imprisonment, but that can be automatically reduced to only two-and-a-half years. As my noble friend Lord Tebbit pointed out, it is situations like that which members of the public find inexplicable. I hope that we will have a greater understanding at the end of the debate.
We were asked what prison does. I can tell the House what it does: it keeps criminals off the street. That is the first thing that the average member of the public wishes to know. While someone is in prison they cannot be committing crimes outside. That is the first reassurance for members of the public. There is some evidence that it acts as a deterrent. Though the prison population is up by 25 per cent., the amount of recorded crime is down by 10 per cent.
The Bill needs to be supported as part of a package of stronger law and order measures. However, I do not believe that it is the whole story or that it will solve all the problems. I support all those who say that prisoners should be educated. Many are illiterate. They should certainly be taught to read and write and it would be even better if they could be given some prospect of getting a job when they come out. However, as many noble Lords have pointed out, the trouble starts long before anyone gets to prison. The trouble starts when children, particularly boys--they seem most likely to commit crime--are quite young. I was very impressed by what the right reverend Prelate the Bishop of Oxford said on that point.
I have been a consistent supporter in your Lordships' House of proposals to support marriage, the family and sound principles in education so that children are taught right from wrong. One of the tragedies today is that stealing is endemic in the schools. It is endemic in a large part of society in a way that certainly was not the case when I was at school. There is no time to go into the reasons for that but we are in a very different world.
We need to do all these other things because supporting marriage means that we have homes in which there are fathers so that boys have a role model to follow and can learn about responsibility. Supporting high moral principles in schools will enable children to determine right from wrong. We are not able to introduce all these things immediately. This is one step
of reassurance to the public which deserves our support. I am very glad to support the Bill before us. I wish it a speedy passage through Parliament.5.51 p.m.
Lord Mishcon: My Lords, I hope to adopt a course which will commend itself to your Lordships. We were all privileged to hear two outstanding speeches--from the Lord Chief Justice and the Master of the Rolls. They were devastating speeches in regard to Part I of the Bill. I had prepared most excellently a speech which also was directed against Part I of the Bill. The speeches to which I referred more than covered, and did so much more ably, the points that I was going to make. I therefore do not propose to weary your Lordships with my speech.
5.52 p.m.
Lord Carlisle of Bucklow: My Lords, I am conscious also of the fact that this is the third occasion on which this House has discussed the principles of the Bill; first, in the debate introduced by the noble and learned Lord, Lord Taylor; secondly, in the debate on the Queen's Speech; and again in the debate today. Like the noble Lord, Lord Mishcon, I assure the House that I do not propose to repeat the speeches I made on those two previous occasions. However, while I realise that, as far as my noble friend the Minister is concerned, my opposition to and concern about the Bill are well known, I am bound to say, having listened to and followed the debates in another place and having heard her very persuasive speech this afternoon, that I nevertheless remain of the view that this is for many, many reasons a thoroughly undesirable measure.
I think that the Bill is quite unjustified. No attempt has been made to justify the major changes it proposes. I think that it is largely unnecessary. I think that it is ill thought through. I think that the proposals for mandatory minimum sentences are in principle wrong. I believe they blur the vital distinction between the roles of Parliament and the judiciary. I believe they will lead to injustice in individual cases. I believe that they will lead to tension between prisoners within prisons and lead to a very substantial increase in the prison population without achieving the protection of the public that the Bill aims to achieve.
I really do believe that sentencing should not be a matter for party political debate. Surely sentencing should be based on principles which command support across the political spectrum and, above all, retain the approval of the judiciary who are required to implement them. I sit as a recorder and when I do so I hope I sit as a lawyer rather than as a party politician. I believe that the fundamental flaw in the Bill is that its proposals were originally announced in a party political forum without any prior consultation and without any thought as to their effect. I believe that the Bill has been pressed ahead with against considered and informed objections by the judiciary. I believe it is a Bill that we should regret.
Like the noble Lord, Lord Mishcon--I have now spoken for three minutes as the noble Lord spoke for under one--I shall not repeat, or attempt to repeat, the
points made so admirably by the Lord Chief Justice in his speech today. However, as the author of the review to which he referred, I remind the House of the circumstances in which that review was set up. The review of the parole system was set up because we were then in a situation where anyone who had served a sentence of more than six months was eligible to be released, at the say either of the Parole Board or, more likely, the local review committee in the prison, at any time once he had served a third of his sentence. The effect was that, particularly at the lower end of sentences, although the courts were passing sentences of different lengths, people were coming out on the same day. As the Lord Chief Justice pointed out, the proposals we brought forward were aimed at restoring proportionality and restoring meaning to the whole of the sentence and were intended to be simple to understand; namely, that anyone sentenced should serve the first half of that sentence in prison; he should then be released and be on parole for the next quarter; and throughout the time be at risk of being recalled if he committed a further offence.I have seen no argument put forward to suggest that those proposals, introduced as recently as 1992, have failed in any way. The only attempts at criticism in the White Paper are ones that I find extraordinary. It is said that they are complicated and are often misunderstood. I say to my noble friend Lord Tebbit that in our report we recommend that in passing sentence the court should explain to the public what in fact that sentence meant. Perhaps it is unfortunate that the proposal was not taken up.
What is to be put in its place? A system is to be put in its place whereby the court is to ask itself, "What is the sentence that we would have passed had this Bill not been passed?" Having found that, then it is to say, "We shall therefore pass a sentence which is two-thirds of the sentence that we would have passed to try to equate the period spent in prison with that which is spent now". Perhaps I may give one example to follow on what the noble and learned Lord the Lord Chief Justice said. Today a court passes a sentence of two years. That means that the person spends the first year in prison. If he behaves himself he comes out at that stage. He is on parole for six months and for a further 12 months he is at risk of being recalled to serve that sentence if he commits another offence.
What is proposed under the Bill? For the same offence, rather than being sentenced to two years, the man will be sentenced to one year and four months. What period is he going to serve in prison? Apparently, he will serve one year, one month and 12 days. Thereafter he will be on parole for four months. I ask my noble friend the Minister quite simply this question: what is simpler, less confusing and more effective about what this Bill proposes than the position at the moment? I do not believe that the Bill meets any of those tests.
I am concerned about the effect on the prison population. The White Paper says that the proposals in the Bill should increase the prison population by some 10,500. As my noble friend will realise, it specifically says that the proposals on honesty in sentencing should
have no effect at all on the prison population. Yet it is now conceded that those proposals alone will increase the length of the average sentence by 11 per cent. I estimate that that will mean between 2,000 and 4,000 more prisoners a day in prison, but without the 10,000 referred to in the paragraph on resources. What consideration has been given by the Home Office to that effect?Finally, like the Lord Chief Justice, I really question whether in the present climate it is possible to achieve the two-thirds reduction in sentences which the Bill aims to achieve. We looked at this in the report and decided that in reality it would not be achievable. Therefore, to the extent that it is not achievable, all it means is that the prison population increases as people spend longer in prison at vast expense in terms of resources and costs which, as the Lord Chief Justice said, could be better spent on other purposes.
I turn very quickly to the mandatory proposals and I shall try to answer the points made by my noble friends Lady Young and Lord Tebbit. The noble Lord, Lord Tebbit, said that surely we were not talking about the type of drug offence which the Lord Chief Justice mentioned in relation to seven years for drug trafficking. The fact is that I do not believe there is a single person in this House who would not support the most condign punishment for those who are serious traffickers in drugs. But the courts already hand out those kinds of punishment. I sit in the Court of Appeal for the Channel Islands. There we start with a sentence of nine years for the first offence of commercially trafficking in drugs. No one is worried about the commercial trafficker getting more than seven years imprisonment, whether it is for the first, second or third offence.
The only type of person whom these provisions will catch is the pathetic, inadequate drug addict who shares a bit of what he has achieved to pay to feed his addiction. That is the reality for those whom this Bill will affect. Equally, I say to my noble friend Lady Young as regards burglary that of course serious professional burglars should receive sentences of at least three years, if not considerably longer. But under this Bill a boy of 16 years of age who commits two separate domestic burglaries may have gone along with a gang of his own age. He then goes straight for 14 years, gets married, settles down, has a job and a family. Then, being out of work and out of luck he sees, in passing, an open door or window at midday and--as has been said--takes a bottle of milk from the table. I point out to my noble friend Lady Young that he will be caught by these provisions. Those are the people for whom I am concerned.
The trouble with mandatory sentences is that they cannot allow for the enormous difference in variety in the type of offender and offences. Therefore, I believe that that will cause injustice in the cases which come before the courts. I believe that that equally applies to mandatory life sentences where one is to a large extent moving the decision as regards the time spent in prison from the judiciary, given in open court, with a right of appeal, to a parole board who will assess it at a hearing, but in private and without the right of appeal to the Court of Appeal.
In all those respects the Bill goes in the wrong direction. Following the excellent example of the noble Lord, Lord Mishcon, whom I have followed before in one of these debates, I apologise if I have failed in any way to equate with his brevity of speech. But I hope that when it comes to Committee stage we shall consider seriously amendments to the Bill.
6.7 p.m.
Lord Ackner: My Lords, in the debate on the Loyal Address on 24th October, I contrasted the Home Office White Paper of 1996 entitled Protecting the Public, on which a substantial part of this Bill is based, with the 1990 White Paper of the Home Office, entitled Crime, Justice and Protecting the Public, whose proposals, principles and policies were embodied in the Criminal Justice Act 1991. The purpose of that operation was to test the credibility of the Home Secretary. Was he merely appealing to the gallery; playing politics with the administration of justice and taunting the Opposition that he is tougher on crime than it is, or was he sincerely concerned that the public are inadequately protected from criminals by the judiciary and his radical proposals to increase both the level and frequency of imprisonment were designed to improve the situation?
Your Lordships may remember the coup de grace, which was to be found in paragraph 2.16 of the 1990 White Paper. Your Lordships will note in particular the references to "justice". It states:
- "It is not the Government's intention that Parliament should bind the courts with strict legislative guidelines. The courts have shown great skill in the way they sentence exceptional cases. The courts will properly continue to have the wide discretion they need if they are to deal justly with the great variety of crimes which come before them. 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. It could also result in more acquittals by juries, with more guilty men and women going free unjustly as a result".
But there are even more cogent reasons for arriving at that dismal conclusion. I start by dealing with two soundbites. I refer first to the Home Secretary's demand for "honesty in sentencing". My first comment relates to the proposal for automatic life sentences. Save for a tiny minority, those subject to such sentences are not intended to stay in prison for the rest of their lives. Life does not mean life. Moreover, the Home Secretary has accepted in another place that there is no minimum to the tariff that a judge may impose. If the circumstances are teeming with mitigation, the tariff can be a matter of months.
The second matter is this: the proposals with regard to mandatory life sentences are designed to deal with a particular problem,
- "of a small number of men serving determinate sentences of imprisonment who have to be released when their sentences expire, although they are thought to be dangerous."
Furthermore, it has two additional advantages over what is proposed now. First, it is not restricted to repeat offenders, as is the present proposal, but can apply to the first-time violent offender. Secondly, it does not carry with it the potential risk (referred to by judges and politicians) that the criminal might well decide to do away with his victim in order not to have to face the possibility of a life sentence. Could it be that the Home Secretary considers that the provision for reviewable sentences does not sound nearly as macho, as tough on crime as the false label of "life imprisonment"?
The second soundbite which was articulated to the delight of the party faithful at the 1990 conference is:
- "no more half time sentences for full time crimes".
- "half time sentences for full time crimes".
As for greater transparency in sentencing, there is going to be a dog's breakfast over what is to happen in regard to the same type of offence being committed by prisoner No. 1 before the Act comes into force compared with prisoner No. 2 after the Act comes into force. Heaven help us if a prisoner has committed two offences--one before and one after the Act comes into force.
All that is by way of hors d'oeuvre. I come now to the piece de resistance. At the outset of his speech on the Second Reading on 4th November in another place the Home Secretary stressed that the key provisions of the Bill were,
- "designed to improve the protection of the public against serious, dangerous and persistent offenders, and to increase public confidence in the sentencing process".--[Official Report, Commons, 4/11/96; col. 911.]
- "would make it more difficult to sentence justly".
Secondly, the 1990 White Paper also states that the system of minimum or mandatory sentences for certain offences,
- "could also result in more acquittals by jurys with more guilty men and women going free unjustly as a result".
Finally, in order to be sure of obtaining a conviction there will be cases where the prosecution will find themselves obliged to accept an unrealistic plea bargain, as is well known to be the case in America. None of that sounds as if greater protection is being given to the public; on the contrary, it sounds as if protection is being removed.
I come now to the abolition of parole. Because of the definition of "relevant offence" and the necessity for its repetition, the proposed automatic life sentence will miss many potentially dangerous offenders. It is in regard to them that the public is currently being provided with a significant protection by virtue of the parole system, which is to be abolished. Under that system, the risk of a repetition of offences is assessed by a panel of experts before parole is granted and, when granted, it is subject to a tight set of conditions with close supervision and a streamline provision for recall where the behaviour suggests the risk of reoffending. The purpose of the system is both to protect the public in the short term while the defendant is on licence and, in the long term, to reduce the risk of his reoffending and returning to prison.
Finally, I refer to prison overcrowding. The changes are bound to lead to greater prison overcrowding. This, coupled with drastic cuts in the prison budget, will reduce the prison service's ability to provide regimes designed to change attitudes to crime and offending
behaviour. That will increase the risk of reoffending on release, and increase the number of potential victims. To quote Mr. Tilt, the Director General of the Prison Service, in a major speech last September:
- "The prison service would like to do constructive things but this is jeopardised by a very fast rising population ... and budget reductions that do not seem to be sensibly achievable".
- "The Judge has become like a glorified social worker ... who sees law-breaking as the criminal's cry for help. He seems blindly unaware of the popular groundswell in favour of harsher penalties".
That that is an illusion is supported by a recent study conducted under the auspices of the Nuffield Foundation. Among other things, it found that half the public thought that 50 per cent. or fewer convicted rapists were sent to prison. The correct figure was 91 per cent. Half thought that 20 per cent. or fewer convicted burglars were sent to prison. The correct figure was 41 per cent. Half thought that 20 per cent. or fewer convicted muggers were sent to prison. The correct figure was 50 per cent. Contrast that with the reality disclosed by an academic, Joanna Shapland. Recently she conducted a survey of victims of violent crime whose attackers had been convicted in the Crown Court. The survey showed that more than half of them thought that the sentence was "about right" or "too harsh". Even more remarkably, a survey of burglary victims found that 80 per cent. wanted imprisonment for burglary in the abstract but only 32 per cent. wanted it for "their" burglar.
A few weeks prior to the speech of the noble and learned Lord, Lord Taylor of Gosforth, the London Evening Standard sent a team of journalists into Crown Courts in London and the surrounding area to sit in court, listen to real cases and report what happened. The editorial summed up the exercise as follows:
- "The broad picture is of Judges whose sentences are fair, firm and fit the crime".
In the debate initiated in May by the noble and learned Lord, Lord Taylor, calling attention to the Government's White Paper of 1996, my noble and
learned friend Lord Nolan drew attention to a recent study carried out by Professor Michael Zander in his capacity as a member of the Royal Commission chaired by the noble Viscount, Lord Runciman. Professor Zander sent out a questionnaire to members of over 800 juries--that is to say, getting on for 10,000 people--and asked for their views about the various aspects of the crimes in which they had taken part as jurors. As regards the sentences passed in cases in which the defendant had been found guilty, about one-third had no particular views. Of the remaining two-thirds, one-half said that the sentence was just about what they would have expected. A quarter said that it was rather more severe than they would have expected. Only a quarter--that is to say, one-sixth--said it was rather less severe than they would have expected.As the noble and learned Lord, Lord Nolan, pointed out, the Court of Appeal can increase sentences that are excessively lenient. Indeed, the Attorney-General has a duty to bring such cases to its attention. But the Court of Appeal spends far more time having to reduce sentences when judges have been too severe. But these are only a tiny minority--some 2 per cent.--of all sentences passed. The vast majority of sentences are not appealed against or questioned at all. All this the Home Secretary must know but, as was recently stated in a national newspaper, he has "an unerring populist streak" which sadly the Opposition seem now to wish to emulate. O tempora! O mores!
6.26 p.m.
Lord Blake: My Lords, I rise with some hesitation having heard such a distinguished series of speeches from noble and learned Lords. I shall probably be a little briefer. I make only one point; other noble Lords will deal with the detail. It has been stated that the constitution is in some way imperilled by this legislation. It seems to me that there is no question of the separation of powers being damaged or anything of that kind. There is really no separation of powers to damage anyway. Setting that aside, I do not believe that the constitution is in peril. I believe that the legislature is perfectly entitled to legislate about sentencing.
Of course, the legislature may legislate foolishly. That is another matter. But as far as concerns the constitution it has the right to pass the appropriate legislation limiting or altering the nature of sentencing if it sees fit to do so. I do not believe that any point of constitutional propriety arises here. Perhaps that is not a major point but it has some importance in the present context. I have been very brief indeed.
6.27 p.m.
The Earl of Longford: My Lords, it is a special pleasure to follow the noble Lord, Lord Blake. He followed me much more than adequately as politics tutor at Christ Church. I shall try to emulate him today. I shall be fairly brief but not quite as brief as the noble Lord.
The noble Lord, Lord Rodgers, described this as a bad Bill. I go a little further. In my eyes, it is the worst Bill that has ever come before this House in my 50 years as a Member of it. It is certainly the worst Bill on penal
measures since I introduced the first debate on prisons in this House 40 years ago. As I am to be followed by the chairman of the Parole Board, I believe that this is the worst Bill since a Labour Party committee, which I chaired, produced parole plans that became law during the Wilson Government; in other words, it is a very bad Bill.If the House asks me why I believe that it is so bad, the first reason is the great increase in the prison population. Three years ago the prison population was somewhat over 40,000; today it is approaching 60,000 and going up fast. We will soon be beyond that figure.
The Government say that the Bill will send up the numbers by 10,500. The Prison Reform Trust, of which, I am glad to say, Mr. Douglas Hurd has become chairman, tells me that it thinks that the measure may send up the numbers by 30,000. Let us split the difference and say 20,000. So if the Bill is approved, within a few years the prison population will go up from something over 40,000 to somewhere near 80,000. It will have about doubled within a few years. That is pretty astonishing.
We must bear in mind that present plans are to reduce the prison staff. I was in two prisons last week. In one case the staff were under the impression that their numbers were to be cut by about 40 per cent. I think that that was an exaggeration. I think that there will be a reduction in that prison of about 100. There will be fewer staff and a doubling of the prison population. That makes it out of the question to pursue any constructive policy of what is now called rehabilitation. I prefer the old word "reform".
I am not saying that rehabilitation, reform, or whatever we like to call it, is the only object of imprisonment. Prison is, first, a punishment. It is imposed on people who have committed a crime; who have broken the law. I wrote a small book called Punishment 35 years ago. When one considers punishment one can identify four elements: deterrence, prevention or incapacitation--to use the modern term which means locking people up so that they cannot do any harm for as long as they are there--retribution, and reform or rehabilitation. I have never found anyone who was concerned seriously with these matters, or anyone who has given their lives to studying them, who would rule out rehabilitation.
Rehabilitation cannot be ruled out altogether. We have devoted staff struggling away. Howardism is despised throughout the Prison Service but one way or another staff have to carry out orders. I always say to them, "I know it is not your fault. Yours not to reason why." They have to go on doing their job. With the prison population being doubled and staff numbers going down, the Government are doing everything they humanly can to make rehabilitation impossible. For that reason this is an atrocious Bill.
Let me offer one further thought which is in many people's minds in this House and elsewhere. In May last year, the former Lord Chief Justice, who I am glad is restored to health, led an onslaught against Howardism. He was backed up, among others, by five former Home Office Ministers, including a former Home Secretary.
Recently, in the other place, Mr. Hurd, Mr. Kenneth Baker, another former Home Secretary, and Sir Peter Lloyd, a former Minister of State at the Home Office, all criticised the Bill. On the one side, we have all those concerned with prisons at various levels: the judiciary, as we have seen today, prison governors, prison staff, successive inspectors-general, the Probation Service and the criminologists. On the other, what is there? Just popular emotion, exploited savagely by the tabloid press. One is left with a choice. It is as clear as can be that this is an evil Bill; I hope that it will never reach the statute book.6.34 p.m.
Lord Belstead: My Lords, I thank my noble friend the Minister for her clear explanation of the proposals contained in this enormously wide-ranging Bill. It is a Bill which, as the Long Title makes clear, provides also for the treatment of offenders in a wide variety of different situations. It is a pleasure to follow the noble Earl, Lord Longford. He has a wealth of first-hand experience in this field and I hope that he will take an active part in what may be an interesting Committee stage.
It is also a Bill which, as the White Paper which preceded it says, has "protection of the public" as its primary objective. I recognise that the right honourable gentleman the Home Secretary is consistent in pursuing that aim and in making proposals in the Bill which seek to give protection against serious and violent crimes.
However, what I find of particular concern is that the Bill appears to have lost sight of "protection of the public" in aiming also for what the White Paper described as "honesty in sentencing". Here I must declare an interest as chairman of the Parole Board, but I assure noble Lords that my concern stems not from a desire in some way to maintain the status quo--that, incidentally, would be foolish as there are interesting additional and new responsibilities to be laid on the Parole Board by the Bill, as well as other things--but from a belief that it is necessary to warn that the risk to the public will be increased by the clauses in Part II which, in pursuing "honesty in sentencing", introduce a new remission scheme for the early release of prisoners. That was one of the four grounds upon which the noble and learned Lord the Lord Chief Justice based his devastating criticism of the Bill when he was speaking about the early release proposals.
Clause 10 provides for a new scheme of early release based on days of remission awarded on grounds of good behaviour. The reason for that appears to rest on the argument that "honesty in sentencing" requires, as the right honourable gentleman the Home Secretary stated on Second Reading in another place, that the prison sentence that is passed by the court is the sentence that will actually be served by the offender.
Is that achieved by Part II of the Bill? No, it is not. Prisoners awarded early release days under Clause 10 will be released early. I shall take the same example of a six year sentence given by the Minister in a letter she kindly wrote to me on 20th January, a copy of which
has been placed in the Library: a six year sentence today will need to be reduced to four years under the terms of Clause 22, and then, with the possibility of 12 days' remission every two months, something under only three-and-a-half years is all that will be left to serve for those who obtain maximum remission.I say that, not I hope in a snide way, but in order to add my voice to that of those speakers much better qualified than I who have said that honesty in sentencing is a difficult target to hit, particularly in terms of a Bill which deals also with early release. It is a target which the Bill does not succeed in hitting.
Having said that, my main cause for concern in Clause 10 is that the grounds upon which early release is given are to be altered. At the moment that is done by risk assessment--an assessment of the risk which a prisoner would present if released early under supervision. I assure my noble friend the Minister that the assessments of risk must of course take account of a prisoner's behaviour in prison.
Under Clause 10, that is to be replaced by remission solely for good behaviour. I must say that I should have thought that an alarm bell should have started to ring in the Prison Service at the prospect of the reintroduction of remission, which was brought to an end only four years ago, following the recommendations of a committee under my noble friend Lord Carlisle of Bucklow, which looked with great care at the early release system. Indeed, looked at from almost any viewpoint, the new remission scheme gives cause for concern, because it appears that it will not contribute to the safety of the public; for example, it takes little imagination to realise that good behaviour, or behaviour of the prescribed minimum standard, as Clause 10 rather inelegantly describes it, is not a reliable basis for the early release of prisoners. There are many offenders, as many noble Lords will know better than I, who have no difficulty in conforming to a prison regime, but who do not experience any change of heart or of criminal intent, and however good their behaviour, those prisoners remain dangerous to the public.
In my noble friend's letter, which I mentioned, she suggested that risk assessments will in future be carried out as part of the sentence planning process in prisons. I recognise that in saying that she is seeking to be helpful, but sentence planning is not risk assessment. And, anyway, the provisions of Clause 10 are crystal clear; in future, early release is to be awarded not on an assessment of risk but according to the prisoner's behaviour in prison.
By contrast, the parole system is a team effort. As noble Lords will know very well, it involves reports from prison officers, specialist prison staff, the probation service and often the medical profession. Those reports are read by panels of the Parole Board to give an independent risk assessment. It is fair to claim that over the past quarter of a century the parole system has proved itself. Home Office research shows that taken from 1968, the year in which the system started, prisoners on parole up to the first six months after release have a reconviction rate of under 10 per cent. compared with 30 per cent. for non-parolees. Two years
after release, when supervision periods have almost always run out for most prisoners, the story remains much the same, with parolees' reconvictions running at about 35 per cent. compared with 55 to 60 per cent. for non-parolees. In saying that, I realise that a single prisoner who reoffends is one too many, but that major difference in reoffending rates represents a significant protection which parole can afford to the general public. Yet parole for fixed-term prisoners is to be discarded and, logically, the risk of reconvictions will substantially increase.If the consequences of the new remission scheme are likely to be so counter-productive, are there other and better reasons for its introduction? For instance, will it lead to greater confidence in the sentences given? Your Lordships will have noticed Clause 22, which is disarmingly described as "Continuity of sentencing". That is the clause which instructs the courts to reduce their fixed-term sentences by one third, so that a six year sentence will amount to only four years. As a layman, I believe that in order for Clause 22 to succeed it will be necessary to explain to the general public in plain terms that it means what it says; that shorter sentences must be given by statute. I very much doubt whether that news will be widely welcomed as a public protection measure.
On the other hand, might there be administrative reasons for introducing remission for good behaviour? I hope that the Minister will give a little information about the exact figures. I understand that the task of deciding every two months whether the behaviour of upwards of 30,000 prisoners has attained or exceeded "prescribed minimum standards" will be enormous. One can conclude only that hard-pressed prison staff will resort simply to the ticking of boxes on forms, an exercise which will eventually become entirely automatic. It will also be a procedure which appears to disregard entirely the appropriateness of whether prison officers should become the arbiters of early release for prisoners in their custody.
Therefore, I am suggesting that already warning signals are hoisted over Clause 10. I can see no reason why the existing parole system could not simply be tightened up so that a prisoner would not be eligible for parole, if that is what the Government wish, until later in the sentence. That is a simple change which would avoid the problems of the remission scheme, which are formidable indeed.
I say that because there are two remaining issues which are specifically provided for in Part II which raise major problems. The first involves release conditions. When a prisoner is released early now there is a licence which spells out standard conditions upon which parole is granted. But those conditions can be supplemented by special conditions. These days, the Government are concerned--and rightly concerned--about the protection of victims of crime. One of the ways in which that protection can be given is by special licence conditions: for example; a condition that a released prisoner shall have no contact with a victim or a victim's family; a condition of psychiatric oversight during the
supervision period; or a condition to do some offence-focused work to continue to tackle the causes of the prisoner's crimes.Such conditions can be absolutely crucial for successful supervision. Yet there is nothing in Part II to explain how the conditions attached to release supervision orders are to be decided, except for the rather curious involvement which the Parole Board is to have in deciding on "hostel" or "curfew order" conditions. Bearing in mind that the board will have had nothing to do with the prisoner up to that point and will not do so in the future, the practicality and expense of that Parole Board involvement will need to be probed in Committee.
However, my concern now is that it is by no means clear what information will be available on which prison staff will be able to base release supervision order conditions. Even more significantly, it is also very unclear what, if any, offence-focused work can possibly be prescribed for the supervision period, bearing in mind that the worst behaved prisoners will be under supervision entirely after their sentences have been fully served when the sanctions hanging over their heads will be very limited. At the moment the sanction of recall to custody can most certainly convince a prisoner of the need to try to reform and rehabilitate while under supervision.
That leads me directly to the other issue that I wish to mention; namely, recalls, which are a most important protection-of-the-public issue. At the moment, long-term prisoners are subject to revocation of their licences and recall to prison by the Home Secretary on the recommendation of the Parole Board, which meets daily and treats recall cases as a priority. And, crucially, the power to recall extends not only to licensees who commit another crime but also to those who ignore their licence conditions and whose behaviour indicates a probability of reoffending. With those powers, in the majority of cases it is possible to recall prisoners before they can reoffend. That is a very important safeguard for public protection.
That safeguard is now largely to be removed. What is proposed in the Bill is that proceedings for breach of the conditions of a release supervision order must be brought in the courts. No doubt my noble friend will correct me if I am wrong, but I understand that the existing recall scheme for short-term prisoners, which relies on court hearings, has already shown that breaching for anything other than a further offence is rare because of the obvious difficulty of bringing cases to court where a licensee has not actually committed another offence.
Therefore, no longer will recalls provide a safety net which can catch a prisoner under supervision who appears to be going off the rails before another crime is committed. I hope that the Government will be prepared to look again at the recall provisions in the Bill, which appear to be a backward step as regards protection of the public.
My noble friend Lady Blatch in her opening speech reminded us that in another place the supervision period for prisoners was extended. I hope that I do not sound
grudging when I say that I welcome that as far as it goes. However, I must point out that, as there is to be no real risk assessment, that is bound to have a detrimental effect on the production of a good supervision plan on which the quality of the supervision period is based. If things then start to go wrong it will be far less possible to recall a prisoner under supervision.Finally, the Bill is subject to a curious contradiction. On the one hand it creates automatic life sentences under Clause 1 for serious offences about which the Home Secretary is understandably concerned, and the Parole Board is to be made responsible for the release of those prisoners through the well-tried process of risk assessment. Yet, on the other hand, the Bill leaves other prisoners who have fixed-term sentences, however long, to be released early by a remission system which, in my submission, is devoid of any worthwhile risk assessment. Those systems really do not sit logically together, unless perhaps a calculation was made when the Bill was being drafted that, because of Clause 1, only offenders who are not really dangerous would come within the scope of remission awarded solely for good behaviour.
Into this rather uncertain scene has stepped the Centre for Criminological Research at Oxford University. In a piece of research published in the November edition of the Criminal Law Review it described how it took a sample of 324 prisoners who had been convicted of a sexual or a violent offence and who were having their last possible parole review, having failed to get parole earlier on in their sentences. The Oxford research then discovered that of the prisoners in their sample who were found by the Parole Board to be still dangerous--not unsuitable for parole but still dangerous--only one in every 10 would have been eligible for an automatic life sentence under Clause 1. In other words, nine out of 10 dangerous prisoners in that research sample would have had to receive fixed-term sentences and would have been eligible for early release simply on the basis of their good behaviour in prison.
I realise that early release is, at least for me, a difficult and controversial subject. It becomes anyone involved in it to be ready to try to listen and to learn from proposals for change. But in the light of that piece of research, I really do think that the introduction of this remission scheme in the Bill for good behaviour could be a disastrous move for public safety. It is on that ground, repeated again and again in Clauses 10 to 14, that I believe this part of the Bill fails. I hope that the Government will be prepared to look at some of the issues that I have mentioned before it is too late.
6.52 p.m.
Earl Russell: My Lords, amid so many judges and experts, I appear as the statutory layman. In that capacity, I should like to offer my congratulations to the noble and learned Lord, Lord Taylor of Gosforth, who I am delighted to see in his place this evening. While going over my papers yesterday, I was impressed yet again by the extent to which we are indebted to the noble and learned Lord's clarity of mind in marshalling the arguments that we are now deploying.
On the whole, I thought that the Minister made a very reasonable introduction to the Bill. However, I was a little distressed when she ascribed much of the concern to a misplaced concern about the relationship between government and the judiciary. There is such a concern. However, in my opinion, it is neither misplaced nor trivial. Indeed, it would be altogether demeaning our concern about the Bill to make out that that is what it is about. Our concern is about a fundamental disagreement regarding the nature of justice. The mandatory minimum sentence is a filing clerk's notion of justice: you put it under a particular heading and then you know what sentence to give it.
I agree much more closely with the noble and learned Lord, Lord Bingham of Cornhill, who made such a distinguished speech earlier today. He said that the object of justice was to match the sentence to the gravity of the offence--that is to say, to the particular offence committed by the particular person on the particular occasion, not just to the heading under which we choose to classify it.
I do not believe that the Minister assisted her case by invoking the mandatory life sentence for murder which, as your Lordships know, has already incurred the displeasure of this House. If there is one crime which is not always the same in one case or another, it is murder. When we debated the matter before on consideration of Commons Reasons, I recall something that the noble and learned Lord, Lord Hailsham, said at that time. Unhappily, the noble and learned Lord is no longer in his place tonight but, nevertheless, I gave him notice that I intended to quote this point. The noble and learned Lord contrasted a mercy killing of a terminally-ill patient with arson in a crowded building in which, by the grace of God, no one was killed. On that occasion the noble and learned Lord concluded, "Let them have their silly way". However, before it is concluded that that would be the noble and learned Lord's advice on any future occasion, we should remember that that was said on consideration of Commons Reasons.
On another occasion, the noble and learned Lord, Lord Ackner, contrasted the treatment of Private Lee Clegg with the idea of the mandatory minimum life sentence for murder. I know that that case is the sort of hard case that makes bad law, but for the Government that is really a very difficult exercise. On 23rd May I dwelt on the difficulty of classifying all rapes together under the heading of "equal gravity". I shall not do so again. Nevertheless, one can do the same with burglary.
I recall a burglary in my father's house when the burglar found one bottle of Red Hackle whisky. He drank the lot at his leisure and went off without taking anything else. My father reported the incident to the manufacturers of the whisky and suggested that they use it for an advertisement, which I believe they did. It would be truly absurd to treat that as an offence of the same gravity as ransacking a house of all the valuables that it contains and then trashing the house to boot. These crimes are not on all fours. I know that there is an escape clause, but it is an escape clause designed by Dr. No for James Bond; it is not for daily use.
The noble Lord, Lord Blake, made the point that minimum sentences are not unconstitutional. That point was made by the noble and learned Lord, Lord Taylor of Gosforth, on 23rd May last. As a fellow historian, I agree with the noble Lord, Lord Blake. What is more, I shall cap what he said. Parliament has done this before. It is then relevant to consider what happened when Parliament did it before. In considering the effect of proposals, we should compare them with what happened when they were put into effect on other occasions. Such comparisons must be with other places or with other times.
We have heard from the noble and learned Lords, Lord Bingham of Cornhill and Lord Woolf, about what happened when it was done in other places in the United States: it has not worked very well. Therefore, I should like to touch on what has happened when it has been done in other times under this jurisdiction. Up to the penal reforms of the 1820s, theft above the value of one shilling was a capital offence. During the 16th century inflation rose to about 500 per cent, which means that there was an unintended and rapid escalation in the severity of sentences. What happened illustrates to a nicety the maxim of the noble and learned Lord, Lord Bingham, that attempts to destroy discretion do not destroy it but rather transfer it. I say that because, of course, the capital penalty depended on the valuation of the stolen goods. Their valuation, being a matter of fact, was a matter for the jury. So, for example, in one case burglars stole a whole set of silver out of a gentleman's house worth goodness knows how many pounds, but the jury valued it at eleven pence halfpenny. Therefore, no capital penalty resulted.
One particularly clear illustration of how this is, as the noble and learned Lord, Lord Bingham, said, an exercise of a discretion which was discovered by a former Fulbright scholar to whom I had the honour to be host and who is now a distinguished professor in the United States. I have in mind the case of a certain Mrs. Harridan. I assure your Lordships it is a genuine name. Mrs. Harridan found a young girl of 15 whose father had recently died. Her mother had remarried a man the girl did not like. Mrs. Harridan persuaded the girl that her stepfather was going to embezzle her family heirlooms, but that she, Mrs. Harridan, would take them into safe keeping so the girl could have them when she grew up. The girl duly removed the heirlooms from the house and gave them to Mrs. Harridan who, of course, sold them. The jury, when it assessed this, should have found the same verdict for both of them. The girl had actually taken the things out of the house. But the jury acquitted the girl and hanged Mrs. Harridan. If that is not an exercise in discretion, I do not know what is. So the noble and learned Lord was quite right: if you attempt to destroy discretion, you transfer it.
The noble Lord, Lord Tebbit, touched on the issue of the concern of the public. That is deep and real. However, what the public want, and want passionately, is reduction in crime. It does not mean that the public are necessarily the best judge of how one gets that. It is the basic principle of representative government that the
public say what they want and it is for us to sit down and try to work out how the public can get it. The public are not always the best judge of every technical issue.I grant that the basic and original purpose of sentencing was to prevent private vengeance. That is vital. So we must always take account of public concern. Our earliest attempts at statutes, some 1400 years ago, were attempts to mitigate the blood feud by the imposition of a fixed level of compensation. The attempt to take vengeance away from the private individual and bring it into the hands of the state is a basic force behind the criminal justice system. But that does not mean that the public should judge exactly how much the vengeance should be in each individual case, because when one does that, and even more when one encourages the victim to be involved in the sentencing of his or her own case, that reverses the process--a basic process of civilization--of transferring the judgment to the state. That raises the question whether the contents of this Bill will prevent crime.
I do not see how any sentence can prevent crime until people believe they will be caught. When the chances of being caught are so small as they are now, I do not think it matters what sentence one gives. Criminals are by temperament gamblers. Gamblers by temperament believe that they will be the lucky ones. It is that belief one has to dent if one is to discourage crime. We on these Benches would try to reduce crime: first, by prevention--by lighting, locking and other practical devices; and, secondly, by better detection, which means more resources and more people for the police. Thirdly, we would try to reduce it by more effective prosecution. The Home Secretary could have done far more with £100,000 for the Crown Prosecution Service than with all the money that is being spent on this Bill. Fourthly, we would pay attention to staffing levels in the hope of reducing the amount of crime in prison.
The Home Secretary reasons on the assumption that people are not committing crime in prison. In a legal sense that may be true, but they are certainly committing offences against the person at a quite alarming rate. The noble Baroness may recall a debate on an Unstarred Question introduced by the noble Lord, Lord Henderson of Brompton, on the Howard League report on the treatment of youth offenders entitled Banged Up, Beaten Up, Cutting Up. That showed a quite alarming degree of offences in prison. I believe the words "safe custody" should mean exactly what they say. If we cannot prevent offending in custody we ought to keep down the prison population and keep up its staffing level until we can, because if we cannot do that we are failing to achieve the object of the exercise.
I think this Bill is not merely a misconceived Bill; I think it is a useless Bill. The Government's test is protecting the public. It is a fair test but that, I believe, is precisely the test which this Bill fails.
7.5 p.m.
Lord Renton: My Lords, although the noble Earl and I have different views on the Bill, I am glad that I can agree with some of his remarks, particularly his reference to my noble friend Lady Blatch. I do not know
of any other occasion when one Minister has found it his or her duty to pilot three major controversial Bills through your Lordships' House simultaneously. I say with deep respect to the noble and learned Lord the Lord Advocate that the noble Baroness, Lady Blatch, has had to do that almost single handed. There is another pleasing aspect that I should like to mention. I have been in your Lordships' House for only 17 years but I do not remember a previous occasion when we have had the noble and learned Lord the Lord Chief Justice and both his predecessors with us for a debate.Although for 10 years I tried many criminal cases, as a recorder and as a relief judge at the Old Bailey, I have not sentenced anyone for 25 years. I hope therefore that your Lordships will realise that I am not putting forward my views based on professional experience, but--I hope the noble Earl will be pleased to hear this--as a parliamentarian who, like him, believes that the public expect us to do something when there is a serious problem.
The public look to Parliament to try to do something about reducing crime. The victims of crime especially feel that way. The noble Earl referred with admiration--and so do I--to the speech made by the noble and learned Lord the Lord Chief Justice. I refer too to the remarks of the noble and learned Lord the Master of the Rolls. I shall study both speeches, each of which was, if I may say so, a bit negative. I say that with the deepest respect, but they were negative. The noble and learned Lords condemned the Bill but did not have anything much by way of an alternative to suggest. I shall read especially the speech of the noble and learned Lord, Lord Bingham, in order to see what detailed amendments may be necessary in the course of the Bill's passage through your Lordships' House.
On balance I support the Bill. We have an alarming and ever increasing crime rate; it has grown every year since Coronation year--the only year, I believe, this century when crime fell. People expect us, with the help of the police and the detection of crime, and in the hope that the courts will use their sentencing powers as necessary, to punish convicted criminals, to dissuade them from committing further offences and to discourage other people from offending. However, there is a feeling, rightly or wrongly, that the courts are not using the powers that Parliament has given them to the fullest advantage. Of course we all know--even lay people know--that judges vary tremendously in the discretion they exercise when sentencing. Some judges are known to be tough; others are known to wish to be as humanitarian as possible. When I was a recorder, I used to be a little criticised. I knew that prisons were overcrowded and universities of crime. Therefore I tried all I could to keep people out of prison. But that process can go too far. Let us take burglaries, for example. They are dealt with in Clause 3 of the Bill. In 1993-94, the average sentence on a third conviction of burglary was less than 19 months. As the noble and learned Lord the Lord Chief Justice rightly said, burglaries vary. A burglary can consist of stealing a bottle of milk. It can consist of breaking into someone's house, not finding
anything worth stealing, but frightening the old lady who lives in the house. The person who does that deserves a heavy sentence.
We know that discretion is given to the court regarding exceptional circumstances in Clauses 1 and 2. I agree that until now the courts have given a very narrow interpretation of that. But surely, if only a bottle of milk is stolen, and nobody is disturbed, that may be an exceptional circumstance. I should have thought that the courts have to apply that opportunity which Parliament gives them with regard to exceptional circumstances to avoid what might be an obvious injustice. I hope that the courts will not interpret "exceptional circumstances"--
Next Section
Back to Table of Contents
Lords Hansard Home Page