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Lord Renton: My Lords, perhaps my noble friend will allow me to intervene. What I was getting at--I believe it is quite true and that neither of the noble and learned Lords would dispute it--was that their speeches were confined to criticising the terms of the Bill. They did not put forward alternative proposals. That is why I ventured, with deep respect of course, to say that they were a bit negative.
Lord Campbell of Alloway: My Lords, we shall all read Hansard. I must get on with my speech as there are many more speakers to come. It seems to me, however, that my noble friend was not entitled to suggest that either of those magnificent speeches had a hint of a negative aspect. I stand by my impression until I have read the Official Report.
It is no secret that senior members of the judiciary and others, including myself, I admit, who sit on these Back Benches, have sought accommodation on this matter, but in vain. The hope is that, in the light of this Second Reading debate, the drawbridge may be lowered and that some amendment may be devised which will be acceptable to government and the judiciary, such as the deletion of "exceptional". As the noble Lord the Lord Chief Justice so truly said--he was supported by other noble and learned Lords--this is no escape route from the vice of the proposals, none whatever. As the noble and learned Lord, Lord Oliver of Aylmerton, said, it is no good for that purpose, and he gave a considered reason in relation to the construction of the Bill as a whole.
Certain proposals were put by the noble Lords, Lord McIntosh and Lord Rodgers. No doubt we can consider those at Committee stage. But amended, assuredly, the Bill shall be. Some measure must be introduced to ensure that a judge is never obliged to impose a sentence which is contrary to his conscience; which he considers to be unjust and inappropriate. That is my bottom line. It is plain English and readily understandable.
It is accepted that our sentencing machine as implemented on release affords scant deterrence and inadequate protection for the public from persons who have committed serious crimes and are likely to reoffend on release, and that something must be done about that. But the mandatory life sentences proposed by Clause 1 of the Bill, which seeks to virtually remove judicial discretion, are not appropriate. As many noble and learned Lords who have a wealth of experience, including the Lord Chief Justice, agree, that would work injustice in many cases.
In context with the administration of criminal justice I accept, on the authority of my noble friend Lord Blake, that there is no constitutional impropriety. Nonetheless, I go along with the view of my noble and learned friend Lord Woolf that sentencing is a matter for the judiciary, as was acknowledged by the noble Lord, Lord Rodgers. Release is a matter for the executive, which has the benefit of a judge's recommendation made when
imposing a life sentence, though that is many years before release. It is of constitutional importance--I put it no higher--because of the danger to which the noble Earl, Lord Russell, so cogently referred, that the separation of powers should be acknowledged by the legislature and should not suffer further erosion.It has been suggested that Clause 1 is modelled on discretionary life sentences and that the judge retains discretion; that he need not impose a life sentence but, if he does so, under Clause 23 he may order the relevant part of the sentence to be served. That is an absurd suggestion and is not well conceived. The argument remains wholly circuitous until "exceptional" has been deleted from Clause 1 and an amendment introduced to restore judicial discretion.
It is interesting that Clause 1 is not acceptable to Women Against Rape. I received a handout from that organisation this morning which adverts to the proposition--it was touched on by the Lord Chief Justice in another context--that a woman may have a previous conviction for GBH prior to marriage years ago and a subsequent conviction of manslaughter for killing her husband after years of brutal domestic violence. Under this Bill that would involve a mandatory life sentence as though she had not been convicted of manslaughter, but of murder. That is but one example of the difficulties of the form in which Clause 1 is drafted. It raises many questions which are not easy to resolve.
It is not possible to devise any definition of general application of "exceptional circumstances". The judge must state in open court the grounds on which he formed his opinion that there are such circumstances and he must also state what those circumstances are. It is a matter for the objective consideration of the appellate court; but without any definition of the norm it is not easy to decide judicially what is "exceptional" and what may be treated properly by the judge as "exceptional" on the facts of any specific case.
If the judge is satisfied that there is no prospect of reoffending either as regards the category of crime of which a person is convicted on the first occasion or of the category of crime of which he is convicted on the second occasion, it is thought that such could constitute "exceptional circumstances" which would justify a departure from the norm which requires the imposition of a life sentence. But would it? In view of what was said by the noble and learned Lord, Lord Oliver of Aylmerton, would it? Would one be met in the Court of Appeal by the argument--which the noble and learned Lord did not fully deploy--of construction? What is "exceptional"? There are eight categories of serious crimes within the meaning of Clause 1 which fall into five types in context with murder, manslaughter, GBH, rape, under-age sex and firearms.
I conclude with this question--there are so many others: would a life sentence be appropriate if the judge was satisfied that there was no prospect of reoffending as regards either type of serious crime in respect of which the accused had been convicted? Who knows? Noble and learned Lords who have spoken do not appear to be able to provide an answer. How can they without any definition of the norm?
7.58 p.m.
Lord Archer of Sandwell: My Lords, perhaps the most serious penalty for leaving it late to set down one's name for a debate is a double one. First, all the best arguments have been fully deployed; and, secondly, a contribution is judged less by its comprehensiveness than by its brevity.
It is always a pleasure to follow the noble Lord, Lord Campbell of Alloway, but it has not been invariable that I have been able to express so completely my agreement with what he said. Perhaps it is an "exceptional" circumstance!
After the wealth of experience and expertise which has been placed at the disposal of the Home Secretary in this debate, my excuse for adding my voice is a modest one. I have practised at the Bar for some 43 years, a proportion of that time being spent in the criminal courts. I have sat for the past 16 years as a Recorder. And perhaps most importantly for this purpose, for 26 years I was addressed from time to time by a fairly wide cross-section of the public in a deprived industrial area of the kind to which the noble and learned Lord the Lord Chief Justice referred. None of that, as I am sadly aware, is a guarantee of wisdom; but it provides a certain reservoir of information. If enforcing law and order is the declared purpose of the Bill, then those who were my constituents for those 26 years would applaud that purpose; and so do I.
In the interests of brevity, I propose to confine this intervention to one issue, although I do not give an undertaking to observe a similar reticence at subsequent stages. Pace my noble friend Lord Mishcon, I venture to contribute a word on the concept of prescribing a minimum sentence for a second or third offence of a specific category. As the noble Lord, Lord Carlisle, so clearly pointed out, we categorise offences according to certain selected characteristics of the incident, whatever the other characteristics it may have. I understand, as the noble Earl, Lord Russell, pointed out, that that may attract the filing clerk's approach, but it is inevitably the draftsman's approach.
We can define the characteristics in law of a domestic burglary, but they include no reference to whether the occupiers were terrified or whether they were absent from home; whether the offence was carefully planned by a team of professionals or the opportunistic discovery of an open window; whether it was accompanied by damage; whether the goods taken were pre-identified art treasures, or the much discussed bottle of milk; whether the offence committed on the premises was stealing at all; or whether the purpose was to remonstrate with a former partner but the thing went sour and it turned into criminal damage; whether the offender was a professional burglar or simply desperate for the next meal. None of these characteristics would be likely to amount to exceptional circumstances. With the greatest respect, which he knows I always accord him, to the noble Lord, Lord Renton, who is not in his place, if he thinks that stealing a bottle of milk is an exceptional circumstance, I suspect that he is in a minority among the lawyers in your Lordships' Chamber.
Yet all these characteristics are relevant to what is a just sentence and a rational disposal of the case. It follows that if the court is precluded from taking them into account, then, as the noble and learned Lord the Lord Chief Justice so compellingly demonstrated, the sentence will not be a just one, and the disposal will not be rational. Is there then a case for an irrational disposal on the ground that that is what the public wants to see?
The community's reaction to crime was never wholly rational. In the earliest times, an important element was simply to strike out at whoever, or even whatever, was thought to be responsible for the misfortune. In the Book of Exodus, an ox responsible for a death was stoned; and in this country, as late as Bracton, a cart which ran over a man was burnt.
I hope that over the centuries reactions have become more reflective. There is a greater concern with what we are trying to achieve, but there is a strong element of simple indignation, of pure moral condemnation. And that is important. If we lose the connection between penal policy and a declaration of ethical principles as perceived by the public, then we lose an important part of the impetus to law and order. And that, as I understand it, is the essence of the Home Secretary's case.
It then follows that the courts, in sentencing, should pay some regard to public opinion. I hope the noble Earl, Lord Russell, will forgive me if I say that it may not always be possible to distinguish rigidly between ends and means; between what the public wants to achieve and how it sees a possible way of achieving it. The enforcement of law and order needs the co-operation of the public in assisting with crime prevention, in crime detection and in building up a climate of peer pressure in favour of legality. Criminals themselves, for the most part, recognise a distinction between getting their deserts and being themselves treated unjustly. But if the argument for these clauses is that the public expects tough sentences, irrespective of the justice of specific cases, we need to administer to ourselves two cautions.
First, I have never met a member of the public--and I suppose that that expression includes everyone--however tough on crime, who refused to agree that the public is best protected from offences if a criminal really is induced to renounce crime, and does not offend again. That is the optimum outcome in the public interest. If, on a specific occasion, that is likely to be achieved by a more lenient sentence--perhaps by a community disposal--then that is the best way to protect the victims of crime. The right reverend Prelate the Bishop of Oxford gave an example of the drug offender who, having now been discovered, may be anxious to kick the drug habit and, therefore, the motivation for subsequent crimes. Of course we cannot always predict the outcome accurately of a disposal of a case, but there is available to the courts a fund of expertise which we would be foolish to waste.
Secondly, an ill-informed public opinion is a loose cannon, because the public view may change if all the facts emerge. So often, public reaction to a sentence is
based on a very selective account of the facts gleaned from the tabloid newspapers. If there is a public perception that judges are spineless wimps who do not have the guts to pass proper sentences, that can be dispelled by a closer acquaintance with the courts. The noble and learned Lord, Lord Ackner, cited the example mentioned on 23rd May by the noble and learned Lord, Lord Nolan, of the questionnaire sent out by Professor Zander at the time of the Runciman Commission.I can add to that one anecdote. I recently heard of an occasion when members of the public who are not particularly familiar with the courts had a dialogue with some experienced magistrates. Since it was told to me in confidence, for good reasons, I cannot identify the occasion or those who participated. But at the outset, the members of the sample almost all expressed the view that the courts needed to deter crime by more draconian sentences. They then proceeded to consider a series of specific cases, of the kind that are used as exercises in judicial seminars, where judges are presented with a set of facts, including such mitigation as is available, and compare their reactions. In nearly every case, the members of the sample would have passed more lenient sentences than those which would have been passed by the experienced magistrates.
If a sentence is to reflect the public view of what a wrongdoer deserves, then that principle faces both ways. Public confidence in the penal system is at least as much at risk when an offender is perceived as having been treated unfairly--when the reaction was more draconian than the offender deserved. The criminal law depends on the support of the public against the criminal. If sometimes the criminal is seen as escaping the full measure of his deserts, that may diminish public confidence in the courts, which is regrettable, but it is not likely to diminish public support for law and order. But if the criminal is seen as a victim, if the sentence appears to be beyond his deserts, then public support may switch from the agents of law and order to the criminal himself.
When capital punishment is discussed, I am always reminded of the little girl who, on the morning of the execution, was heard to murmur, "Poor Dr. Crippen". And if the object is to reduce crime, and to make the offender less likely to reoffend, then causing the criminal to appear as the one who is wronged is about as counter-productive as you can get.
If penal policy is to serve as an affirmation of ethical standards, that cannot be applied selectively. Seeking to enforce justice by resorting to injustice is invoking Satan to cast out Satan. If the Home Secretary believes that that is what the public wishes to see, he really should meet more members of the public.
8.10 p.m.
Baroness Seccombe: My Lords, it is with humility that I rise to speak after so many distinguished speakers, but I believe that I have a duty to reflect the very real concerns of so many members of the public. I agree wholeheartedly with my noble friend Lady O'Cathain. Most of my friends are fearful of being out alone at night. So I am grateful for the opportunity to speak in
support of the Bill. Regardless of one's standpoint, it is without doubt a landmark Bill, which will have a radical and, I believe, positive impact on criminal justice in this country. Indeed, I share the view of the president of the Chief Superintendents Association that it is in the national interest that this Bill becomes law.At the forefront of our minds in this debate, and in others dealing with criminal justice matters, must be the need to ensure that the criminal justice system commands public confidence that justice is done and is seen to be done; that the guilty are convicted and the innocent acquitted.
Before I move on to some of the specifics of the Bill I ask your Lordships to visualise the chilling picture of a criminal justice system in which the public, particularly in inner cities and high crime areas, cease to have any faith; where people take the law into their own hands because they have given up on the ability of the police and the courts to catch and punish criminals. This is the vigilante society, which is anathema to the rule of law which I hold dear. We must always keep an eye on preventing this from happening and avoiding starting down that road. This Bill will ensure that we do not.
Speaking from my experience as a magistrate for 28 years, I can say that little dispirits members of the public more than when they see someone sentenced, let us say, to six months' imprisonment only to find him--usually him--out and about after three months or so. Obviously, it is even more disconcerting when someone is sentenced to four years' imprisonment for a much more serious offence and he or she is then out of prison after two years. It makes a mockery of the courts and the system.
Sentences served by offenders must reflect the sentence that the court has imposed. This Bill will change current procedure and put sentencing on a more honest footing. If a judge intends a criminal to spend two years in prison, under the proposed legislation he will give him a two-year sentence. The confusing features in the current system will be put right by the Bill's proposals. In future, everyone--the judiciary, the defendant and the public--will know where they stand.
I welcome also the clauses introducing minimum mandatory sentences for the worst offences. I do not believe that it is the case that they will encroach on judicial independence. It is for Parliament to set the statutory framework for sentencing and for the judges to exercise their discretion within that framework. Indeed, I believe that I heard the noble and learned Lord, Lord Woolf, say that on radio this morning.
Automatic minimum sentences already exist. Maximum and minimum sentences work on the same basic principles--both set the limits within which judges exercise their discretion. The message sent out to would-be criminals would be loud and clear. I have never known someone who comes before the court for drunk driving not knowing that they are going to be disqualified for at least a year.
The provision for an automatic life sentence for second time serious, violent and sexual offenders like repeat rapists or armed robbers, will be welcome added
protection for the public from such dangerous offenders. Giving a life sentence to a rapist who has raped twice will ensure that he will never be released to rape again if the Parole Board, and those working with him, believe that he still poses a danger to the public. I join the police and the public in welcoming that clause.Burglary is a particularly wicked crime especially where elderly people are the victims. Having been the victim of burglary, I understand what a horrendous problem it can be. For someone who is elderly and who may be living alone, then I believe that for them it is so traumatic that their whole life can be changed and they may never be able to live in their own house again. So I believe that the public are perfectly justified when they expect the police and the courts to take this crime very seriously.
This Bill will ensure that those burglars who offend again and again on three occasions or more are taken out of circulation for a minimum of three years. I believe that that is right. The fact is that if persistent burglars get little more than a derisory sentence--for example, statistics show a sentence of 19.4 months on a seventh conviction--then prison for them will become little more than an occupational hazard in an otherwise lucrative, even if dangerous, profession.
I also welcome other measures contained in the Bill, particularly the discretion it will give courts to extend disqualification from driving to non-vehicle related offences, and the proposal to extend electronic tagging to 10 to 15 year-old offenders. These measures will give the courts greater flexibility to deal effectively with a variety of crimes that are a menace to the public on a daily basis.
I welcome the Bill. It is in the national interest, as I have already said. I believe that it will make a difference over time to crime in this country. I believe that the Bill will go a long way towards achieving the goal of protecting the public and at the same time bolster the rule of law by strengthening public confidence in the system's ability to do justice and uphold the law. I commend the Bill to noble Lords and hope that they will support the aims of the Bill.
8.17 p.m.
Lord Hope of Craighead: My Lords, had it not been for the presence of Clause 1(6) of the Bill, which provides that,
- "An offence committed in Scotland is a serious offence for the purposes of [the clause] if it is a qualifying offence for the purposes of"
Many noble and learned Lords and noble Lords with far more experience of English law than I have and a far better appreciation of the impact which these measures will have on the English system in all its
respects have spoken and it would be presumptuous of me to add anything to their remarks. My own experience of the criminal law, both as an advocate and as a judge, was, until very recently, confined to Scotland which has its own system of law and procedures in these matters.However, a number of difficult issues are raised by subsection (6) which will have practical significance for the operation of Clause 1 as a whole. Indeed, they affect the questions of principle which lie at the heart of the Bill. The fact is that the Border between England and Scotland remains open. People travel around the United Kingdom. The noble and learned Lord the Lord Advocate will know that only about 10 days ago many Welsh people were in Edinburgh not far from Murrayfield and no doubt, in a few days' time, many Scottish people will not be far from Twickenham. So these remarks are not made out of idle curiosity; they have some practical significance which must be of concern to anyone who seeks to make sense of the Bill.
Perhaps I may establish briefly my own credentials to speak in this debate, as other noble Lords have done. I should explain that for seven years until the end of last September I was the Lord Justice General for Scotland, which is the Scottish equivalent of the Lord Chief Justice. As part of my duties, I had the responsibility, as every Chief Justice in the United Kingdom has, of advising the Secretary of State on the penal element in sentences of life imprisonment. I also took a close interest in the workings of the Parole Board for Scotland and was therefore particularly interested in the detailed contribution of the noble Lord, Lord Belstead.
The purpose of Clause 1, the broad idea expressed within it, is, I understand, to deal with serious repeat crimes--the worst offences, as the noble Baroness, Lady Seccombe, has just said. There are therefore two factors which are crucial to the operation of the clause if a fair balance is to be struck between punishment--appropriate punishment, that is--which is the concern of the judge, and the need to protect the public, which is of particular and understandable concern to the Minister. Those factors are, first, the definition of what amounts to a serious offence and, secondly, the way in which the qualification under reference to exceptional circumstances, which others have mentioned, is to be interpreted.
I do not believe that it is possible for your Lordships to appreciate the full impact of Clause 1 without a proper understanding of the range of offences which are to be treated as serious offences for the purposes of the clause. The noble Baroness, Lady Young, addressed a very important question to the Minister when she said, "Please tell us what those serious offences are." Indeed, one must remember that the offences to which the question was directed include not only the offence for which the person is being sentenced, but also his previous offence which has qualified him for the life sentence. That is where the list of offences committed in Scotland becomes relevant to the Bill.
It should also be borne in mind that the examples commonly given by Ministers to justify this measure are almost invariably taken from the top end of the scale--the most violent or depraved examples of criminal
conduct. There is no doubt that a life sentence may be appropriate at the top of the scale. Indeed, there is much force in the argument that the discretionary life sentence which is already available to, and used by, judges takes care of such cases. However, the point I would stress is simply this: if the margin at the top end of the scale is to be moved down to accommodate a wider range of offences, it becomes a matter of crucial importance to ensure that that margin is not set too low. To do that would undermine the impact of the life sentence in the minds of the public in those cases for which it was appropriate, as it would bring the whole system into disrepute. It would also have very serious consequences for all those who have to administer life sentences for the rest of the person's life, not to mention the individual on whom the sentence is passed.It is against that background that I should like to draw three points to the Minister's attention, with particular reference to the inclusion of Scottish offences on the list. These matters will, I suggest, require careful study if the clause is to remain part of the Bill. I mention them in the full knowledge that this is a Second Reading debate and that the time is late. I do so in the hope that my observations may inform further debate when we come to consider the Bill in Committee.
The list of the offences is not to be found in this Bill but in the corresponding Bill for Scotland, the Crime and Punishment (Scotland) Bill. As I understand it, that Bill is still under consideration in another place. I hope very much that it will have reached your Lordships' House before the Committee stage of this Bill takes place so that your Lordships may have access to it when we come to examine this clause at that stage.
For the time being I can tell your Lordships--because I have a copy of the Scottish Bill with me--that the list of Scottish offences is already significantly wider than that in Clause 1(5) of this Bill which lists the categories for England and Wales. As mentioned not long ago, eight offences are listed in subsection (5). The Scottish list already includes 10 categories of offences, three of which enter into areas of criminal activity which are not, I understand, covered anywhere in the English list. It includes sodomy and attempted sodomy; the broad offence of lewd, indecent or libidinous behaviour; and the unusual offence of clandestine injury to women. This is not the time to go into detail, but I should perhaps explain that clandestine injury to women is committed when a man has intercourse with a woman who is unconscious or asleep and that the offence of lewd conduct covers a very wide range of sexually deviant behaviour ranging from indecent exposure to the serious sexual abuse of children below the age of puberty. No one could suggest that those are not crimes which alarm and disturb the public.
The point to which I ask the Minister to direct her attention is this. If the theory to which Clause 1 is intended to give effect is that a second offence of the kind listed in subsection (5) justifies the imposition of a life sentence, how can it be right to impose the same sentence on someone whose first offence in Scotland was of a different kind from that on the list? If the list for Scotland had been directly comparable with the
English list, assuming for the moment that that was possible--requiring no more than changes in wording, as often occurs in legislation relating to matters of procedure--there would have been no real difficulty. But the two lists are not directly comparable. This is due at least in part to the fact that most of the serious crimes known to the criminal law of Scotland are common law crimes. These are defined very widely and apply to a wide range of criminal conduct.There has been a tendency in the preparation of the Scottish Bill--I must confess some responsibility as it resulted from some of my comments when the White Paper was discussed in Scotland--to extend the list in an attempt to include all kinds of conduct which might cause concern to the public and to make sense of the list. That echoes the point made by the noble and learned Lord, Lord Woolf, about creating a precedent. Here is a vehicle which can take on board more and more offences. The list may get wider still and, if devolution were to come about, it would then be for the Scottish Assembly to review the list in measures which would not come before your Lordships at all for scrutiny.
The inclusion of such a wide range of offences in the Scottish list is of concern for another reason--and this is my second point. In the Scottish Bill the corresponding clause is careful to provide--no doubt on the wise advice of the noble and learned Lord the Lord Advocate--that a conviction for a qualifying offence is only to be taken into account if it was obtained on indictment in the High Court. This, as I say, is a wise provision because many of the offences on the list may not be, on the facts of the case, very serious. So they are prosecuted in the sheriff court whose sentencing powers are more limited. But as I read the Bill no such provision has been included in the measure which is now before your Lordships. So, unless the clause is amended, we will have the very odd and, I think, highly unsatisfactory position that a conviction for a relatively minor offence of its kind in Scotland--which would not count as a first offence for the purpose of the imposition of a life sentence in a Scottish court because it was a conviction in the sheriff court--would have that effect in England and Wales, as the court in which the conviction was obtained is not a factor which is said to be relevant.
I should point out that it is in any event a matter of everyday experience in the Scottish courts that an offence which appeared to be appropriate for the High Court at the start of the case turns out, when the jury returns its verdict after listening to the evidence, to be less serious and more appropriate for a prosecution in the sheriff court. This is reflected by the terms in which a Scottish jury returns its verdict. A Scottish jury can delete passages from the narrative of the charge. The fact that the conviction was obtained in the High Court is no guarantee that the offence was, after all, a very serious one. But to insert such a qualification would go some way towards minimising the risk of injustice and serious distortion in the operation of this measure on each side of the Border.
Lastly, I should like to touch briefly on the words "unless there are exceptional circumstances" to which other noble and learned Lords have drawn attention. I share the concern expressed about the effect of these words. But a particular question arises with regard to the cross-Border implications. I ask the Minister whether it is envisaged by the Government that these exceptional circumstances may include the circumstances of the first offence, in particular whether that offence was a serious offence of its kind. The question is important because the judge who is being asked to impose the life sentence will have the circumstances of the case before him but not the circumstances of the first offence. Alternatively, is it the intention that the judge should have regard only to the circumstances of the offender and not the nature of the offences which have qualified him for a sentence of life imprisonment? This is a matter of importance because in some areas of road traffic law it is now established that the seriousness of an offence is not a relevant factor. The Government's position on this issue is required to be made clear. Furthermore, if it is intended that the nature of the offences can be taken into account at that stage, what procedures are envisaged to enable the relevant information from Scotland to be put before the trial judge in England? Why have they not been stated or at least provided for in the Bill to ensure that that information is made available across the Border without delay when it is required?
I firmly believe that the cross-Border implications of this clause, in addition to the other points made in the debate, give rise to practical difficulty and also questions of principle. Whatever one may think about the broad policy, surely the wiser course would have been to study the implications much more carefully before the Bill was introduced. As it is, lists as long and as wide as those in these two Bills will almost certainly give rise to injustice and, sooner or later--after, I fear, much damage has been done--to demands that discretion in these matters should be returned to the judges who, after all is said and done, are best placed to see that a just and effective sentence is imposed in each case.
8.33 p.m.
Lord Taylor of Warwick: My Lords, a few months ago I was in the Crown Court defending a 23 year-old labourer who had pleaded guilty to a number of dwellinghouse burglaries. He said that his parents were in the iron and steel business: his mother ironed while his father stole. My instructions were to ask the judge for one last chance to avoid prison. I told my client that this time prison was likely because I had already asked for a last chance twice that year. I also happened to be appearing before the same judge who had dealt with the matter previously, so it was not my day.
My client asked anxiously whether I thought the judge would remember him and I replied that he probably would. I asked why he did it. He had a loyal girlfriend and a job and yet he kept getting into trouble. He looked at me sadly and said, "It is like this. I am too easily led by my socio-economic peer group". I said, "How do you know that?" With a big grin, he responded that his social worker had told him. That day he did
go to prison. Ten minutes after the sentence had been imposed, I went to see him in the cells. He had already worked out his release date and knew that he would have to serve only half the sentence anyway.I am afraid that that example is only too common in our courts. The general public are fed up with it, in my view. In particular they want protection from serious, dangerous and persistent criminals. They want to have greater confidence in the process, and that is what this Bill is all about. I support the Bill in principle, although I suspect that the Committee stage will be most fruitful and certain matters of detail may need to be addressed, especially in view of the comments made by distinguished members of the judiciary. In view of the excellent speeches made by both them and other noble and learned Lords earlier, I propose to be much shorter than I would otherwise have been.
The Home Secretary said in another place that there could be a number of exceptional circumstances in which judges could exercise discretion not to impose mandatory or minimum sentences. He gave only one example but a rather interesting one. He referred to the case where a defendant had helped the police to bring other serious criminals to justice. It may be a sad feature of our system but without the co-operation of so-called police informants fewer crimes would be solved. I am concerned about this particular matter. At present, a judge can reflect that factor by reducing the severity of his sentence without referring in open court to the fact that the defendant is a police informant, but the Bill proposes that the judge shall state in open court the exceptional circumstances for not imposing the sentence. Some defendants who have assisted, or may consider assisting, the police will be fearful of that fact being revealed in open court because of reprisals. I have no sympathy for these people; I do not plead their cause. But this may reduce the valuable sources of information which are available to the police. I should like the Minister to give this matter some thought.
It has been argued that criminals are deterred mainly by the thought of getting caught rather than the severity of the sentence. Crime detection and prevention are important. It is for that reason that the increase in police numbers, closed-circuit television cameras and the DNA database are welcome. But surely the persistent criminal will not be deterred if he believes that once caught he will receive only light punishment. One regular client joked that before a burglary he always took a bath so that he could make a clean getaway. He treated the whole matter as a joke. To him, a short prison sentence was really an occupational hazard, just like paying income tax. There is no doubt that the public want more criminals to be caught, but they also want more honesty in sentencing by which I mean that offenders are properly punished.
I am firmly in favour of the proposed mandatory life sentence for second time violent and sexual offenders. A couple of years ago I had the privilege of meeting a very brave and gracious lady: Jill Saward. You will recall that she was raped by two of the three men who burgled her father's Ealing vicarage in 1986. Her father and then boyfriend were beaten until they were barely
alive. I listened with horror as she told me of some of the terror and trauma that she suffered years afterwards. I believe that the public viewed it as an insult that her attackers were sentenced to just three and five years' imprisonment each for the rape--less than for the burglary. The public, especially women in this regard, look for a signal that this kind of behaviour will not be tolerated.These proposals do not amount to three strikes and you are out as in America. They are carefully targeted on serious, dangerous and persistent offenders. However, this Bill reflects the American intolerance to crime, and we should make no apology for it. There is no doubt that in America this strong approach to sentencing has reduced crime, and it would continue to do so here.
Critics of the idea that prison works should not ignore the latest reconviction rates which show that 51 per cent. of all prisoners reoffended within two years of being released compared with 55 per cent. of all those given community service orders. That points to the fact that the prison-works concept has some merit behind it.
Less media attention has been paid to the fact that the Bill will mean also an enormous reduction in custodial sentences for fine defaulters; discretion for courts to reveal the identity of young criminals; longer supervision of offenders after their release from prison; and new hospital orders for mentally ill offenders. I welcome all those proposals.
There is no doubt that the Bill has the support of the police and the public. All the broadsheet and tabloid newspapers back the proposals. That is interesting. We often deride the popular press for being simplistic and vulgar, but it is so often an accurate barometer of the nation's mood. I shall certainly keep taking the tabloids. I apologise for that joke, my Lords. We ignore public opinion at our peril.
The Bill is not about sentencing offenders such as the poor cleaning lady whom I once represented. With a large family and debts, she literally found that grime did not pay. She shoplifted on impulse. It was the first time she had done that. In her confused state, she managed to include among the four small items she stole a free sample. The Bill is not about that type of criminal. It is about protecting the public from dangerous and professional criminals.
The Bill is not the solution to the crime problem, but it could be part of it. Those who criticise it should come up with something better. They should not merely criticise it. We have to face the music even though we may not like the tune--that is, we need to take a tougher line for serious crime. The Bill hits the right note, and, in principle, I support it.
8.42 p.m.
The Earl of Mar and Kellie: My Lords, the noble Lord, Lord Taylor of Warwick, took a quick and friendly swipe at social workers. As a social worker from the criminal justice system, and someone who has worked as a prison social worker, a community service supervisor, probation supervisor, and a project worker on an intensive probation project, and, obviously the
writer of many social background reports, I use that as an introduction to saying that I want to focus my remarks on clauses in Part III. Parts I and II have been well thumbed today, whereas Part III has been looked at by only a few, including the noble Lord, Lord Taylor of Warwick.As regards Clause 31, I have no problem with the idea that fine defaulters be diverted away from prisons to community-based disposals. With up to 20 per cent. of the prison population consisting of non-payers of fines, for whom there was initially considered to be no need for imprisonment, that proposal clearly has some merit. My difficulty lies in the use of community service as a disposal in such circumstances.
Community service is an official alternative to custody. It is in danger of being trivialised if it is used for minor offenders who would not have qualified for imprisonment. Community service is a useful medium for restitution, and the reintegration of offenders into society. The working hours allow an environment for informal discussions about offending and reintegration issues, which is often more natural than may be found in a formal supervision session. I should prefer the use of attendance centre orders, as in Scotland, which would meet the needs of society and minor offenders who cannot or will not pay their fines.
There is an interesting proposal to use driving bans for non-payers of fines. I understand at what that is aimed, but I am worried that those driving bans will be ignored. They will be difficult to police. It means we could be generating a number of victims of people driving while uninsured. No doubt we will discuss that matter later in Committee.
The use of curfew orders or electronic tagging is proposed. Tagging is a form of part-time house arrest only. There is no input about offending issues or behaviour modifications. It is useful only as a head count, for the contractor running the scheme is unlikely to be equipped to do anything more. Its use for young people is especially deficient in that respect.
Among the many things needed by young offenders, one priority is an authoritative and sympathetic person to whom they can speak and relate. An electronic tag attached to a person with low self-esteem, itself the commonest background factor in offending behaviour, does nothing to correct that feature of poor self-esteem. It may even encourage the wretch to whom it is clamped to build up a notoriety and identity of ill repute which is counter productive.
I am arguing that if electronic tagging is to be used, it is appropriate only for those who are well-adjusted and who, in the words of the popular saying, have gone off the rails. To spell that out, they are well brought up chancers who know the score, or, to revert to the saying, know where the rails lead and can be nudged soundly back into decent behaviour. In the meantime, the inadequate offender, highly marginalised, needs greater care than electronic tagging can afford in order to begin to overcome his offending behaviour and sort out his usually chaotic life style.
With regard to Clause 33, there is good sense in looking for an alternative non-custodial disposal for persistent petty offenders who have many fines to pay with questionable prospects of doing so. Their infuriating offences rarely merit custody, but they are likely to be imprisoned for non-payment of their fines. Imprisonment had been judged inappropriate initially, and so it is right to look for another non-custodial disposal. Fine defaulters take up a great deal of accommodation in prisons, stay only a short time and cause unnecessary administration and expense. Again, I wish to make a plea not to trivialise community service in that respect.
Finally, in Clause 34 we come to what I consider to be a most unreasonable development: the abolition of the need for the offender's consent to a community-based sentence. That contradicts all that I was brought up with. Almost all community sentences: probation orders, with or without special conditions, community service orders, attendance orders and future curfew orders have breach proceedings in court in the event of non-compliance.
For many years, probation was not considered to be a sentence because the offender could be returned to court on a breach and be repunished for the offence, usually by imprisonment. A probation order provides that the court accepts that the offender has committed the offence levelled against him; the offender has given his consent to the making of the probation order, recognising that he can be returned to court if he is in breach of the conditions of the order. That could be by non-compliance with the terms of the order or because he has committed a further offence. If he has not complied with the conditions of the probation order he can be resentenced for the offence. If he has committed a further offence he can be punished both for the new offence and for the original offence. I believe it to be unjust to award such a consequential type of disposal without the offender's consent.
Perhaps I may draw attention to the benefit of seeking consent when discussing a community sentence with an offender at the stage of the social background report; post-conviction but pre-sentence. The issue of consent allows a focus on the purpose of the community sentence in terms of compliance and of the possible personal benefit, development, rehabilitation and reintegration. Community sentence procedures are intrusive into the offender's life and are intended to be. That must be pointed out in advance. It is particularly true of probation orders, especially those with special extra conditions. Such intrusion is wholly voluntary or non-existent when paying a fine or serving a prison sentence. I hope that that issue and Clause 34 will attract the attention they deserve when the Bill arrives in Committee.
8.51 p.m.
Lord Dubs: My Lords, I wish to deal with the effect of the Bill on mentally disordered offenders. The issue was referred to in passing by the Minister and by the noble Lord, Lord Renton, but has not been subjected to scrutiny tonight. I should declare an interest at the outset. I am a non-executive director of Pathfinder
Mental Health Trust in south London and through it have involvement with people in its medium-term secure unit.Of course, we must be concerned about protecting the public but we must also seek to achieve the right balance between the needs of health treatment and the needs of the criminal justice system. Striking the right balance is not easy. We must also be aware that in our prisons today are a large number of individuals who are mentally disordered or mentally ill and have not been picked up by the system which led them to be there. That is of concern certainly to people who work in prisons because of the difficulty they have in dealing with such prisoners.
Perhaps I may first deal with one omission from the Bill. We need something more to help the courts to identify and assess mentally disordered people who come before them. In the other place an amendment was tabled which attempted to set up a psychiatric assessment scheme linked to the courts. Perhaps in Committee we can return to that proposal in order to try to help the courts to be better aware of the nature of mental disorder among convicted people.
I turn to the main points of the Bill and to the mentally disordered offenders who are clearly identified by the courts. Part II deals with the power of the courts in disposing of mentally disordered offenders. We have a new concept before us; it is a hybrid order, as described in the White Paper, which provides that the courts having imposed the sentence of imprisonment can link that to a hospital order. That means immediate admission to a mental illness hospital, which I presume is always a secure unit, for treatment.
The idea of the hybrid order stems from a Home Office and Department of Health working group which reported in 1994 under the chairmanship of Dr. John Reid. The report linked the hybrid order only to psychopathic disorders. The idea was that having been treated in hospital individuals would return to prison only if the treatment was inappropriate or had been refused. Therefore, the concept was more limited than that contained in the Bill, where the intention is much wider. It appears that disordered offenders should be returned to prison after a period of hospital treatment even if the treatment has been successful. Although it is not stated in the Bill, the Minister will have powers to extend the provision from psychopathic disorders to all disordered offenders. Then we should have the situation in which someone is sent to hospital, and is helped and treated but must then go to prison to complete the sentence imposed by the court. Those can be very wide powers if the Government choose to take them up, as the Bill would empower them to do.
That presents a difficult dilemma for those who are treating people in secure units in hospitals for the mentally ill. Let us suppose that a man receives a 10-year sentence, the first four years of which are spent in a secure unit in a hospital for the mentally ill. After four years the doctors judge that he has been treated and, in so far as one can say of mental illness, has been cured. Under the present situation that individual, having been cured, can be released, although it may be
that the Home Office must approve such a release. However, under the Bill the hospital must either send the individual to prison or keep him in hospital occupying a bed. Sending an individual who has had four years' treatment for a mental condition back to prison might negate the benefits of the treatment. When the individual is eventually released after the sentence he may then be even more dangerous to the public than he would have been if he had been released from the secure unit after successful treatment and kept under some form of supervision.There are a number of concerns, the first of which is a point of principle. How content can we be that a mentally ill person should be punished and imprisoned? I am not saying that the answer is always yes or no, but the problem is difficult. Should people who are mentally ill at the time of committing an offence be punished for it?
Secondly, the idea of continuity of care for mentally ill people, or for people who are mentally disordered, will not be possible if the first three or four years of the sentence are in a secure unit and the next four or five years are in a prison. It is difficult to envisage that the same type of care will continue from the secure unit in hospital into the prison system. There is a problem therefore about what will happen when the individual is released.
Thirdly, aftercare is essential in all such instances. If an individual has spent several years in a secure unit, then goes to prison and is then released it may well be that the prison is a long way from home and from the hospital at which he was treated. I wonder whether such an individual will be more dangerous to the public.
I have two further concerns. First, it may well be that a consequence of the provision is that more mentally disordered people will be in secure units in hospitals for the mentally ill. That will increase the cost to the health service and make life more difficult. There is already an enormous pressure on beds in such units. The hospital with which I am involved is always full and could take many more people if it had a few more beds.
I turn now to my last concern. Is it just possible that the courts might be tempted to use this hybrid order as what someone called "an easy option"? In other words, it may be said, "Well, that's a way of dealing with people. They will get some treatment in hospital and then they will serve the rest of their time in prison". Surely there is a danger that we might end up with more people in prison than under the present system. I suggest that that would not be protecting the public; it would simply mean more people in prison, even though those individuals were mentally disturbed at the time of the offence and when the sentence was imposed upon them.
In her opening speech, the Minister actually gave us some hope; indeed, I hope that she meant it. What we need is more discretion. We might simply have a system for dealing with such people which gives little or no discretion--for example, a person would get a 10-year sentence with, say, four years in hospital with the balance being served in prison. It would mean that there would be very little discretion other than that afforded to doctors. I noted the Minister's words carefully. She
talked about an individual going from hospital to prison and used two words specifically; namely, "if appropriate". I am not sure what the source of that phrase is other than that the Minister said it. I do not know whether there is anything in the Bill, or in one of the mental health Acts linked to the Bill, which gives that discretion.However, assuming that the position is clear, I should like to know a little more about how that decision, as regards the appropriateness of a transfer for a treated person from hospital to prison, would be taken. How would that appropriateness be judged, and how would that whole process work its way through? If we have more discretion in the way that it operates it is possible that the system will not be too bad. But, with a lack of discretion, I fear that we are embarking on a course which may not be a wise one.
9 p.m.
Lord Hacking: My Lords, 25 years ago when I first entered your Lordships' House--and I certainly did not expect to be here for more than a few years--I was a practising member of the Bar and regularly appeared on criminal matters before magistrates' courts, quarter sessions and assizes (as they were then called). Since then, I have remained in the law but I have concentrated on commercial matters; and, indeed, have become a solicitor of the Supreme Court. Therefore, in the circumstances, it seemed to me that I did not have the freshness of knowledge on criminal matters to make an early speech in the debate. In fact, I asked if I could be called later and am most grateful to the Whips' Office for agreeing to that proposition.
I thought that the correct approach was not to prepare a speech but to refresh my memory of the argument that was produced at that excellent debate to which I listened on 23rd May of last year, and to listen also to the argument being presented today in this House. Before I state where I have been persuaded and why, I should like to pay a particular tribute to my noble friend the Minister for the care and attention that she gave in her opening speech; for the fact that she is indeed carrying this as one of three major Bills through the House; and for the further fact that my noble friend has been present--as has the noble Lord, Lord McIntosh--throughout the debate and listened to every single speech.
Again, before I say where I stand on the issue, I should like to say that I respect the sincerity of the Home Secretary and of those who have supported the Bill in this House. I remember the Home Secretary some 35 years ago at the Cambridge Union. If my memory is right, and I am not letting any cats out of the bag, I recall that there was rather a Left-wing inclination in the Conservative Party in those days. I repeat that I entirely respect the sincerity of those who support the Bill, particularly my noble friend the Minister.
However, most regretfully, I have come to the conclusion that this is a bad Bill, addressing a very serious issue in the wrong way. Yes, crime is serious and yes, it is increasing. I live in South London with my family. All of us have been victims of crime during the
past 10 years. I am sorry that my noble friend Lady O'Cathain is not now present in the Chamber. My wife walks back every night from St. Thomas' Hospital, under those dark arches of the railway. Yes, she has been chased by criminals and it is frightening for women. It is also rather frightening for men, too; I do not like being under those dark arches, either.I have come to the conclusion that this is a bad Bill, addressing a serious problem in the wrong way for all the reasons that have been addressed to your Lordships by the noble and learned Lord the Lord Chief Justice, and others who have participated in the debate tonight. Therefore, I shall not repeat those arguments. However, I should like to underline the concerns raised by the noble Lord, Lord Dubs; concerns which are shared by the Royal College of Psychiatrists and the Law Society on the impact of the Bill upon those who are mentally ill.
The noble Lord, Lord Dubs, took us very carefully through his concerns. I believe that he was chiefly addressing the way that hospital direction orders will work under Clause 43. My noble friend Lord Renton also expressed concern about that clause. But perhaps I may go straight to the absolute basics. As I read Clauses 1 and 2, it seems to me that the mental disability of the accused will not be a matter that is taken into account. It follows from that that severely deluded and hallucinated people, suffering, for example, from schizophrenia or severe learning disabilities, will find themselves ab initio facing a mandatory prison sentence. I am glad to see the noble Lord, Lord McIntosh, nodding his head in agreement. That is a matter of great concern that has been expressed by the Royal College of Psychiatrists.
The question that your Lordships should be asking is: how did the Bill come to be here in this House in its present form? More directly, what have Her Majesty's Opposition been doing in another place to allow this Bill to come forward in its present form with some form of their qualified support? We know what Her Majesty's Opposition have been doing in this House. We well remember the speeches made on the debate of 23rd May last. I notified the noble Lord, Lord Williams, that I intended to quote from two paragraphs of his speech. Having criticised and also drawn to your Lordships' attention the view of the Select Committee on mandatory sentences, the noble Lord did something which I believe is always very helpful in your Lordships' House--he gave some personal examples. He said:
- "I prosecuted a determined professional burglar whose life's income came from preying on others. He terrorised people in their own homes; tied them up with electric flex so that they almost died. He did it on a number of occasions. He was convicted on several occasions and was subject, rightly, to a harsh sentence indeed. Put the burglar at the opposite end of the scale--the rather dim youth who puts his hand through the open back window of domestic premises and takes a loaf or a bottle of milk and does it three times. Is he now to be the automatic recipient of a minimum, mandatory sentence? That is not just; it is a perversion of justice and one which, I am sorry to say, is brought about on the basis of low motive".--[Official Report, 23/5/96; col. 1031.]
He then went on to say (at col. 1032 of Hansard) in reference to pleas of guilty,
- "There is a virtue in pleas of guilty. It has nothing to do with the ignoble point that the time of the court is saved or that public expense is lessened. It is much more important than that. A plea of guilty is the public acceptance of moral responsibility for the harm done to the victim. In a very deep sense, it is the beginning of moral recompense for the victim who has been wounded. What inducement will there be for anyone properly to be advised to plead guilty if we have minimum mandatory sentences, imposed by diktat from the Home Office and not considered on a reflective, informed basis by someone who has heard the evidence?"
If that is right, I am troubled that the Bill should have arrived at your Lordships' House in its present form. Even if I displease the noble Lord, Lord McIntosh, by yelling, "Not-Content" when the Question on Second Reading is put to your Lordships at the end of this debate, I believe this Bill should never have come to your Lordships' House in its present form and should be sent back to the other place for it further to reflect upon it.
9.9 p.m.
Viscount Tenby: My Lords, I begin by declaring an interest both as a magistrate and as a member of the Magistrates Association. Whilst we share a common purpose and interest in most respects, I must stress that any views I express tonight are mine and mine alone.
The trouble with being a "tail ender", as noble Lords will know, is that most of the runs have already been scored, and, I might add, by better batsmen. However, there are parts of the outfield that have not yet been fully explored. The Minister, who has perhaps had more than her fair share of difficult tasks in the past 10 days, and who in my view deserves every word of the gallant tribute paid to her by the noble Lord, Lord Renton, may be relieved to hear that I do not intend to dwell tonight on the main concerns relating to sentencing in the higher courts. Indeed, I already feel rather like a skiff running for safety between two lines of men-of-war, with the broadsides of the judiciary to port and the massed canonry of the Government--and perhaps even part of the Opposition--to starboard. I hope that I have the geographical and political dispositions right in nautical terms.
I cannot, however, in general resist the temptation to make just one comment about the main concerns which have arisen as a result of the Bill. Anyone who has been involved in sentencing, in the lower courts no less than elsewhere, is aware that only those intimately concerned in a case can know the full details and all the many circumstances surrounding it. It is also true that no two cases are exactly similar in every detail. In other words, each should be treated on its own merits, and that particularly applies where sentencing is concerned, as the noble Lord, Lord Carlisle, said so graphically.
Having said that, it is undoubtedly the case that in supporting the Bill another place has been responding to the will of the people in this country, however
ill-informed that opinion may be in the eyes of the judiciary and others. What exactly has caused this upsurge of feeling must be a matter of conjecture and will to a large extent depend on the political ground on which one stands. A greatly increased crime rate, sensational media treatment, personal experience of crime, the liberal policies of the 1970s and 1980s, all have their advocates. However, I suggest that the one thing we cannot afford to do in a democracy--after all, it is a democracy, is it not?--is to ignore this genuine feeling with an irritated frown or a helpless shrug of the shoulders. Therefore we must look again and again to check whether we have it right, and we should perhaps ask ourselves whether we need to educate more and communicate better. I suggest that this is a critical area.As a magistrate, my main concerns lie inevitably in those sections of the Bill relating to the lower courts. In this context I feel I should congratulate the Government on the initiatives they are proposing to reduce the number of offenders committed to prison for wilful refusal to settle fines. This has long been a preoccupation of mine. Indeed I recall that I made my maiden speech on the subject of alternatives to custodial sentencing many years ago in a debate initiated by my noble friend Lord Allen of Abbeydale, whose experience and wisdom in this field are rightly acknowledged by all as second to none. Since then, we have frequently returned to the topic. I have always been mildly irritated--that is all one is allowed to be in this House, mildly anything--by speakers who have understandably railed against such imprisonments without offering any practical suggestions as alternatives.
The brutal truth is that in the sophisticated game of parting an offender from his or her money, there must always be an ultimate sanction available to a court, otherwise the debt to society remains unpaid and a fines system which accounts for, I believe, some 80 per cent. of all disposals in the lower courts, becomes discredited.
Two proposals are being made now which, wisely in my view, will be tried out in pilot schemes before full implementation. First, the use of disqualification from driving for an offence not necessarily related to motoring itself, for example, non-payment of fines, is an imaginative leap which nevertheless poses a number of problems both in terms of administration as well as in questions of judicial fairness. But if those are recognised and faced at an early stage, there is no reason why this should not be a useful addition to the disposals available to magistrates even though I suspect that the sanction may be used sparingly at first, and rightly so.
Sentencers are aware that for many the use of a car may be the difference between having and not having employment. Further, any measure which dramatically increases the number of disqualified drivers will inevitably increase the number of those who deliberately choose to drive illegally while disqualified, with all that that entails for all those unfortunate enough to suffer from such recklessness. In addition to these important considerations, there must be severe administrative consequences for the police, the courts and by no means least, the DVLA at Swansea. Persistent traffic offenders who are disqualified may well be known to the local
police. The new category, disqualified for unrelated offences, will be more difficult to target and that difficulty will be compounded if, for example, a fine defaulter suddenly acquires the means to discharge his debt and, therefore, presumably becomes eligible to have his or her licence returned to him or her. It may be appropriate in such cases for the licence to be kept not in Swansea but at the relevant court. One must also add that for the hardened criminal, the prospect of driving while disqualified will be like water off a lag's back.However, if the new proposals are used with care and sensitivity, and the administrative machinery is capable of coping with what will assuredly be a greatly increased workload, then we look forward to seeing what the early returns show.
The other proposal in relation to sentencing concerns the introduction of community service orders for a lesser range of offences, including again fines, and on this I congratulate the Government warmly on producing something which at long last may provide the answer to all our concerns about inappropriate custodial sentencing. I am sorry to part company with the noble Earl, Lord Mar and Kellie, but, unlike him, I say to this proposal, "Alleluia". I would, however, voice two concerns. At present a community service order is a serious disposal--to use the court formula, "serious enough". I believe, accordingly, that the new orders for lesser offences, if only to prevent confusion and not to debase the coinage of the original community service orders, should be called something else. The term "work orders" has been suggested. There is, too, the example of Scotland which has supervised attendance orders. Why does Scotland always seem to be ahead of us on these matters? I can understand why it wants independence.
My other point which does not so far appear to have been addressed by the Government is that the measure will inevitably require considerable additional resources, in particular in manpower. I suggest that it is such an important initiative that it is essential that it does not go off at half cock because of inadequate funding. I would welcome the Minister's assurance that adequate resources will be made available. If the experiment fails through lack of cash, we shall have learned nothing and perhaps be wrongly put off going down this road for years to come.
Finally, despite the widespread criticism which will undoubtedly emerge from some quarters regarding the proposal to give discretion where it is deemed appropriate for courts to name certain juvenile offenders, I say only that many will feel that, providing the freedom is not abused, such a step is long overdue.
This is an important Bill which may or may not see the light of day. However, whatever its fate, it covers much new and hotly disputed ground and it seems inconceivable that we can ever return to the status quo, as some would like. As I hope that I have indicated, I believe it to be a curate's egg of a Bill with clauses to condemn and to applaud. Let us hope that as a result of our deliberations we can make the administration and execution of justice better in this country and that by our persuasion and logic we can ultimately carry the country with us.
9.20 p.m.
Baroness Anelay of St. Johns: My Lords, today we have heard from a legion of lawyers--or, in the context of their contributions to the debate, perhaps I should call them a battery--and there are yet more to come. I stand here, however, as a member of a larger legion of sentencers. Like the previous speaker, I am a magistrate, one of over 30,000 volunteers who dispose of over 95 per cent. of criminal cases in this country. I feel emboldened to speak having heard my noble and learned friend the Lord Chancellor encourage the noble Lord, Lord McIntosh of Haringey, last Friday morning to continue with his Opposition stewardship of the stalking Bill and not surrender it into the hands of a lawyer. He argued that the layman's view can be useful and effective in debates affecting the law and the legal profession. I wholeheartedly agree.
I also feel a duty to speak on behalf of an even larger group of people: the victims and potential victims of crime. Sentencing is a complex and often difficult task even for those of us who dispose of less serious matters. Courts should never be expected to exercise their sentencing powers with one eye on the hovering hand of the tabloid journalist, even if that journalist is my noble friend Lord Tebbit. But they must never disregard public opinion itself. They should recognise that sentencing practice may need to be changed to reflect the public's desire to show their disapproval of specific criminal activities and to live their lives free from the threat of such crimes.
Today, the public believe that, too often, courts impose sentences which fail to match the gravity of the crimes committed. I therefore welcome the extension of mandatory life sentences to those new categories of offences listed in Clause 1 of the Bill. Prison is the only suitable punishment for the most persistent and dangerous criminals, and certainly the only way of making sure that the public get the protection that they deserve.
Many noble Lords spoke about Clause 1. I wish to refer to just one part of it, subsection (5)(d), which would bring within the scope of the mandatory life sentence,
- "an offence under section 18 of the Offences Against the Person Act 1861 (wounding, or causing grievous bodily harm, with intent)".
Over the past months, opponents of the Bill have sometimes used Clause 1(5)(d) as evidence that the extension of mandatory life sentences to new categories of offence is flawed. They have argued that this is an offence which can occur in the heat of the moment--typified perhaps by a "glassing" in a pub. They say that the Bill takes that offence into a new category of seriousness by making it a qualifying offence for an automatic life sentence upon a second conviction.
But they are wrong. If someone becomes embroiled in a violent attack in the heat of the moment without having a specific intent to cause grievous bodily injury, then that person would be charged under Section 20 with the lesser offence of unlawful wounding or unlawfully inflicting grievous bodily harm.
For the offender to come within the provisions of Clause 1(5)(d) of the Bill, the jury must be satisfied that the offender is not only guilty of deliberately causing serious bodily injury, but had the specific intention to do it.
When we talk about offences of this nature, we are dealing with injuries from which it is often a matter of luck that the victim did not die as a consequence. If that sounds too melodramatic, then let us consider the case of the pub brawl referred to in passing earlier in the debate, the glassing where the element of intent has been proved. The victim is in a position where he or she is at the receiving end of an assault with broken glass. I suggest that most people cannot insert a broken glass with absolute precision into someone's face or neck so as to avoid the main arteries. So if somebody is convicted of that type of offence for a second time, it is surely at least an indication that that person is a danger to the public and should not be released until the relevant authorities are satisfied that the person no longer represents a danger to the public.
After all, if the victim were to be unlucky and die from those injuries, the intention to do grievous bodily harm is sufficient to found a conviction for murder. Therefore, we are dealing with really serious criminal activity from which the public requires and deserves protection.
Of course, I appreciate that no two cases are exactly the same. But judges can reflect that by their use of the tariff or even perhaps by the application--dare I use the phrase after what has been said today?--of the "exceptional circumstances" provision. Therefore, I can see no valid reason why a second conviction for this category of offence should not be subject to a mandatory life sentence.
Public debate and debate in this House has concentrated on the question of mandatory life sentences in a way that has almost obscured discussion about those measures in Part III of the Bill which make innovative use of non-custodial sentences and seek to extend them to circumstances where imprisonment is no longer considered the appropriate penalty. I am disappointed that more attention has not been focused on those measures.
Speaking as a magistrate--and I also declare an interest as a member of the Magistrates' Association--but mainly as an individual, I am grateful to the noble Viscount, Lord Tenby, for his lucid arguments about the measures in Part III. I welcome measures which will give courts the opportunity to avoid the need to impose prison sentences for non-payment of fines. But here I shall take a leaf out of the book of the noble Lord, Lord Mishcon, as he read it earlier this evening, and say that because the matters in Part III have been so ably covered by the noble Viscount, Lord Tenby, I shall not repeat all that at this late hour, save to say--those dreadful words--that I welcome the intention to introduce a pilot scheme to test the proposal to give magistrates the discretion to impose a disqualification order as a measure to enforce the payment of a fine.
As someone who has been involved in pilot schemes, I ask the Minister to ensure that this pilot scheme is as straightforward in its operation as possible so that its effectiveness is not compromised.
I support the principles of the Bill and look forward to a lively and fruitful time in Committee.
9.27 p.m.
Lord Thomas of Gresford: My Lords, some years ago I prosecuted two men who attacked an off-duty doorman, a bouncer, at a party. He was rendered unconscious. He never came round or recovered and 14 days later he died of pneumonia. It was not possible to link his fatal illness with the attack that had been made upon him. As a result, the two men were prosecuted under Section 18 of the Offences Against the Person Act 1861 and were duly convicted. The High Court judge who tried the case then sentenced them. He made it clear that he was not sentencing them on the basis that they had killed the deceased, that they were responsible for his death, and he passed a suspended sentence of imprisonment. The furore that then broke out in the public gallery of that court is something I shall never forget because the relatives of the deceased were utterly incensed. The two men, who were still in the dock, were triumphant and challenged the family to meet them that night so that a fight could take place.
It was at that moment that I realised the force behind the sentiment expressed earlier today by my noble friend Lord Russell when he said that the basic force behind the criminal justice system is to prevent private vengeance. When something like that happens and a completely inadequate sentence of imprisonment is passed, private vengeance is not assuaged. It is an act of trust for a victim and for a victim's family to subsume their anger and their sense of vengeance. For them to do that requires public confidence, their confidence in the criminal justice system. The criminal justice system must deliver justice and fairness for the state, the victim and family and, indeed, for the accused.
A moment ago the noble Baroness, Lady Anelay of St. Johns, talked about her concern for the victims. I can assure her that we on these Benches share that concern. It is a pity that the Home Secretary, Mr. Howard, did not share that concern when he revamped the Criminal Injuries Compensation Scheme so as to reduce compensation for victims of violent crime.
Let me deal first with the concept of honesty in sentencing. The Minister said that everyone should know what the sentence means. The sentence should be transparent. But her proposals, as set out in Clause 1(2) state:
- "The court shall impose a life sentence, that is to say--... where the person is 21 or over, a sentence of imprisonment for life".
When the Home Secretary sloganises his half-time sentences for full-time crime, again, as the noble and learned Lord, Lord Ackner, pointed out, it would suggest or imply that a person sentenced to four years' imprisonment will serve four years. But we know that that is not the case either. So the suggestion that the Bill will promote honesty in sentencing is defeated by the very words of the Bill. It is a charter for dishonesty in sentencing.
As the noble and learned Lord, Lord Woolf, pointed out, it will lead to plea bargaining, the transfer of the discretion from the judge elsewhere, as the noble and learned Lord the Lord Chief Justice put it. From personal experience I can tell your Lordships that I know what will happen when the situation arises that a person faces a mandatory life sentence. The CPS will say, "We do not have the resources to fight this case. It is open and shut but we do not want to spend money. We will take a conviction for a lesser offence." The prosecutor will be happy because he will have the certainty of the conviction; the defendant will be happy because he will avoid the mandatory life sentence; and as for the judge, he will have cleared his lists. But what is vital and important is that the public and the victim will not know what has gone on and why that more serious offence has been reduced--to save money and to avoid the consequences of mandatory sentences of that type.
The role of the judge in sentencing is crucial. I was disappointed to hear the noble Lord, Lord Tebbit, describe how, in his view, confidence needed to be restored in the judicial system. He felt that judges who criticised anything that was advanced by the Government in this field had entered into the political field and that people were confused by sentencing policy.
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