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Lord Carlisle of Bucklow: I rise to support these amendments to which I have put my name, and I know where the Committee resiles from my still confirmed view that I am against mandatory sentences as such. I am against them for the very good reason that I believe that the role of the legislature, the role of Parliament, is to provide the sentencing framework within which judges should pass sentence. I believe that judges should always be free to fit a particular punishment to a particular crime. May I dare to say to the Minister that I share the view of the Government expressed as recently as February 1990 that,
- "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".
That was the view of the Government as recently as 1990. I still share that view. I have heard nothing during the course of debates in this Chamber to persuade me to understand why the Government have apparently changed in the way that they have.
If we are, nevertheless, to go down the road of mandatory sentences, as appears the case, and if at the same time we are to avoid injustice in individual cases, it is essential that we have a discretion that will allow the courts to sentence other than by means of mandatory sentences when they believe, given all the circumstances of a case, that it is unjust to impose such a sentence. I cannot see how we advance the cause of justice, or confidence in justice, by requiring judges to impose sentences that they believe to be unjust. I cannot see how we advance the cause of justice by sentences that clearly are unjust, as will happen.
I agree with the remarks of the noble Lord, Lord McIntosh, in moving the amendment. I am not in any way against severe sentences. It is not a matter of being tough or not being tough on crime. It is a matter of providing sufficient discretion to allow justice to take place.
There is enormous variety in the cases that appear before the courts. I turn immediately to the provision in Clause 3 of the Bill relating to burglary. Burglars divide between, on the one hand, the professional, who perhaps breaks into a house at night and strips it of valuable property, and on whom I am sure the whole Committee would wish to see a serious penalty imposed, to, more commonly, the young, often opportunist burglar acting on impulse, often entering a house that is unoccupied. Those two ends of the spectrum cannot be dealt with by one simple system of mandatory sentencing.
As the noble Lord, Lord McIntosh, said, the Bill provides that there shall be an exception; namely, if there are "exceptional circumstances". With the greatest
respect, I believe that provision to be totally inadequate. As the noble and learned Lord the Lord Chief Justice has pointed out in this House and other places, the term "exceptional circumstances" has always been construed by the courts extremely narrowly. I wish to make it clear that, not only has it been construed extremely narrowly; it is clearly the intention of the Government that it shall continue to be construed extremely narrowly. In another place on 15th January Mr David Maclean, the Minister of State, said:
- "It is the Lord Chief Justice's view, which I believe to be correct, that the term 'exceptional circumstances' will be construed very narrowly. I believe and hope that that is the correct interpretation".--[Official Report, Commons, 15/1/97; col. 395.]
- "It is the Government's intention that the courts should interpret 'exceptional circumstances' in exactly the same way as they have been in other legislation over the past five years".--[col. 396.]
What does that mean? It means that it is accepted by the Government that the exclusion that they are attempting to put into the Bill is to be construed narrowly. As the noble Lord said in opening, the only example given in another place by any Minister was the suggestion of the Home Secretary that the provision could apply to someone who had given exceptional assistance to the police.
What we do know--and there is clear authority for this--is that exceptional circumstances do not include good character, youth, an early plea of guilty or contrition, whether taken separately or in combination. It is essential that if the Bill is not to be found in practice to cause injustice, during this Committee stage we should replace the provision of "exceptional circumstances" and, as these amendments attempt to do, introduce the idea that a court need not pass a mandatory sentence if it is satisfied that it is unjust in all the circumstances. With respect, I should have thought that that was not a difficult concept but one behind which all sides of the Committee might unite. Surely it cannot be said that Parliament wishes to see courts being required to pass sentences which they believe to be unjust.
Having read the debate that took place in this House on Second Reading, I wish to attempt to answer some of the points made. My noble friend Lady Young said that under the Bill there would be stiffer minimum sentences for persistent house burglars who had committed serious offences. She said:
- "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".--[Official Report, 27/1/97; col. 1005.]
I have to tell the House that, according to the Minister in another place, that is apparently the case. The very issue was put during the Committee stage in another place. Mr. Maclean, the Minister, said:
- "Whether someone is charged with theft of milk bottles or with burglary is a question of fact and law. If the Crown Prosecution Service decide to charge burglary, not theft, the person is so charged. It is up to the court to determine whether the offence is burglary. I have no sympathy for a third time burglar whose excuse is, 'It wasn't a proper burglary. I only reached in the window to steal a milk bottle'. In the honourable gentleman's view, it would be more serious if the person had reached in and grabbed a purse from a woman.
- "I do not intend to pontificate on whether that burglary would be more or less serious. If a person is charged with a set of circumstances which, in the court's view, constitute domestic burglary, and he is found guilty, I am content for the provisions of the clause to apply to him".--[Official Report, Commons, Standing Committee A, 21/11/96; col. 146.]
It is clear that as the Bill stands it would cover the very case which my noble friend Lady Young said would make a mockery of the whole Bill.
I turn to another matter. Both my noble friends Lady Seccombe and Lady Anelay referred to their situation as magistrates. I wish to remind the House of what the Magistrates' Association said in its considered submission to the Home Office:
- "The Magistrates' Association considers that domestic burglary is a singularly unsuitable offence for a mandatory sentence. While we acknowledge that burglary can be a very serious offence, e.g. night-time burglary with ransacking, soiling and damage, nevertheless the scope of the offence is so wide that the criminal justice system could be brought into disrepute if courts had to impose mandatory three year sentence for, say, the theft of a bottle of milk through an open window. Moreover, we see great problems in defining 'genuinely exceptional circumstances' at the time of the mode of trial decision, resulting in all cases being referred to the Crown Court".
I believe that the Magistrates' Association was absolutely right in its view.
The point I wish to make to the House is different. I ask my noble friends who are magistrates a question. One of the principles on which the White Paper is based is the claim that on the third offence of domestic burglary half the cases are dealt with in the magistrates' court and that some 64 per cent. of those convicted are not sentenced to prison. Those who are get an average of four months. My question is this: is it really to be suggested that magistrates sitting in court are so out of touch with the community they represent that it is to be argued that all those cases which make up the 64 per cent. who, in the magistrates' view, should not go to prison at all, are instead to receive a mandatory three-year sentence? Indeed, rather more. If we take into account the effect of honesty in sentencing, it is now a sentence of four-and-a-half years. I ask magistrates to reflect: are they saying of themselves and their colleagues that they have got it so wrong that in 64 per cent. of the cases that do not go to prison at all the court should instead be required to impose a sentence of three-and-a-half to four years' imprisonment? I believe that the message to be drawn is not that the magistrates have it wrong, but that it shows the wide variety of incidents that amount to domestic burglary.
Finally, like the mover of the amendment, I was frankly amazed to hear the suggestion by the Home Secretary that the amendment would drive a coach and horses through the Bill. Is it really considered that to say that a court should not be required to pass a sentence which it believes unjust drives a coach and horses through the Bill? If it does, then all I can say is that it shows the total injustice of the Bill with which we are dealing.
It has also been suggested that if the amendment were passed it would be a wrecking amendment because it would leave the situation as the status quo. With respect, that is totally untrue. I wish to remind the House of what
would happen if the amendment were to pass. Instead of half the cases today being dealt with in the magistrates' court, under the terms of the Bill every third case of domestic burglary would have to go to the Crown Court. When those cases reached the Crown Court there would be a presumption that the defendant would serve the mandatory sentence of three years because the Bill says:
- "The court shall impose [such] a sentence".
The defendant would have the burden of satisfying the judge that it was unjust in the circumstances to do so. On top of that the judge then has to state in open court his reasons for coming to that conclusion.
I do not believe that sentencing should be a matter for party political debate. Judges are appointed from practising lawyers without question as to their political allegiance. Magistrates are chosen to represent the areas and communities in which they live. Surely, we should attempt to provide a system of justice and sentencing which is agreed across the political divide. I believe that I am the only person on this side of the House who at the moment sits as a recorder and tries and sentences people. I realise that my noble friend Lord Renton did so with distinction for many years. I know that, across the Chamber, the noble Lord, Lord Williams of Mostyn, is also a recorder, as is the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Mallalieu. We sit on different Benches in this House but I am sure that we will all vote the same way on this amendment. We will do so because we all believe that sentencing should not be a matter of party politics. It should be a matter of doing justice between the individual and the state.
I apologise for going on so long. Finally, I believe it is tragic that the Government appear to be in total conflict with the judiciary over the matter. I have absolutely no doubt that the overwhelming majority of those who sit in the criminal courts, whether they be High Court judges, circuit judges, recorders or assistant recorders, are totally opposed to the effect of mandatory sentences unless there is a sensible exclusion clause. I find it extraordinary that apparently the Government do not heed the advice of the Lord Chief Justice, the Master of the Rolls and the two previous Lord Chief Justices who sit in the House today. I hope desperately that we can come to an agreement to find a set of words which will allow the Bill to proceed but to proceed in a way that will do justice. If the Minister feels herself unable to accept the amendment, then all I can say is that I hope that it will be carried by the House.
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