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Lord Donaldson of Lymington: I should like to make two brief points. The first arises out of the speech made by the noble Lord, Lord Elton, when he said that it was no breach of principle to tell the judges what to do. I should like to emphasise that to my recollection no judge in this House has ever suggested that the judges
do contest the right of Parliament to tell them what to do. Indeed, I know that the Lord Chief Justice has made that absolutely clear. It is Parliament's constitutional right to do that. But there is a world of difference between having the right to do that and doing it.However, even the noble Lord, Lord Elton, seemed to balk at the idea that Parliament should tell the judges that they should impose a particular sentence for every first offence. That would not be a breach of principle; it would be a monstrous thing to do, but that is something quite different. I hope that we shall not be told again that the judges are in some way obstructing the will of Parliament. They are advising that what the Government propose is wholly wrong and that it would involve them in being asked to do things which they believe to be wholly unjust.
The noble Lord, Lord Renton, said that the amendment takes us back to square one. With respect, I disagree. It gives the judges a discretion which they badly need. But it is a discretion that is exercised against a background. At the moment, there is no background except the maximum sentence. The amendment would substitute a different background. It would be saying, "This is the sentence"--whether mandatory or minimum--"which in the view of Parliament is the norm". Indeed, it would be the minimum norm because there is nothing to stop judges going above it. It would be saying, "This is the norm in terms of minima, but if you, the judges, find that there are circumstances in which the norm would be unjust, you will be free to depart from it". That is something quite different from the wide-ranging discretion which judges have at present.
I hope that when the Minister replies--and no doubt relies upon "exceptional circumstances"--she will think for a moment in terms of percentages. In my book and, I suggest, in the book of most judges, an exceptional circumstance would be a fraction of 1 per cent. of all cases, yet we know that many of the cases which have been mentioned--the young inadequate drug addict and the opportunist young burglar who has been tempted--are not to be counted at under 1 per cent., still less at a fraction of 1 per cent. Large categories fall into what many people would regard as "exceptional circumstances" which the judges could not conscientiously regard as "exceptional circumstances" in the light of the meaning which judges have always given to those words.
The Marquess of Hertford: May I ask my noble friend the Minister whether there is any truth at all in the rumour that the Home Office is considering in a few years' time hiring ships to house the number of prisoners for whom there may be no room in our existing gaols or even in the gaols which are now being built? If that rumour is true, I feel some anxiety that we are going back to the days when Charles Dickens was a young man and prisoners were housed in hulks on the Thames Estuary, when an ex-convict could say with perfect truth that he might as well be hanged for a sheep as for a lamb. It follows that ex-convicts who are
committing a crime might well be tempted to use a great deal more violence than they otherwise would in order to avoid being caught.
Lord Monson: In view of the time, I shall not elaborate on why I support the amendment. But I wonder whether the Minister could kindly indicate in her reply whether any other country in the civilised world, apart from the United States of America, imposes mandatory minimum sentences in the way that this Bill proposes.
5 p.m.
Lord Gisborough: The pendulum has swung too far in favour of the criminal in the mechanism of defence, the length of sentence and early release from prison. I am delighted that the pendulum is swinging back with this Bill and others like it. There are too many cases where people who have been released from prison have gone straight back to crime. A murder was committed near my home by someone who had just come out of prison.
I very much support higher sentences, but I do not believe that the Bill as it stands will be effective. The Bill removes the decision from judges and places it in the hands of the CPS. The CPS will decide whether or not it wants a life sentence to be imposed and bring the appropriate charge. It must be wrong to place that decision in the hands of the CPS, which is what this Bill seeks to do.
I do not believe that an amendment of this nature weakens the Bill. It strengthens it. Without it burglars will know that if they are caught on a third occasion they will be subject to a life sentence. Therefore, they must go out to murder because that is the only way they can avoid a life sentence.
Lord Elton: I believe that my noble friend has misread the Bill. There is no question of imposing a life sentence for burglary.
Lord Gisborough: However, there are other crimes that carry such a sentence. I do not believe that juries will dispense justice because they will not want very long sentences to be imposed. Therefore, they will not bring in verdicts of guilty when such verdicts are justified. Having sat as a magistrate, I know that there is no doubt that each case is different. Discretion is vital. For example, a 20 year-old may commit three crimes one after the other and render himself liable to a long sentence. Although it is very inconvenient, the fact is that such people grow out of it. Some discretion must be allowed.
I believe that as it stands the Bill is little short of grotesque. I do not necessarily support this amendment, but I hope that my noble friend will come back with something that improves the present position.
Baroness Blatch: The proposed new clause standing in the name of the noble Lord, Lord McIntosh of Haringey, relates to the circumstances in which courts should have discretion to set aside the mandatory
penalties prescribed in Clauses 1 to 3 of the Bill. That is inconsistent with the position adopted by the noble Lord's honourable friends in another place. They abstained from voting on an amendment which would have had exactly the same effect as this amendment would have on Clauses 2 and 3. It would have the effect of removing the test of exceptional circumstances and replacing it with the test of injustice or justice--whichever word one wants to use.As far as concerns Clauses 2 and 3, burglars and drug dealers will rejoice at these amendments. They set aside exceptional circumstances and substitute the court's view of what is unjust in all the circumstances, as is the case at the present time. That was evidenced by the noble and learned Lord, Lord Woolf, Master of the Rolls--who has not spoken in today's debate-- at Second Reading. If the amendment were passed it would have the following effect. For example, having already disposed of special circumstances in Clauses 2 and 3, if a third time burglar or drug dealer came before the court for an offence which would have attracted a much lower penalty in the mind of the judge but for Clauses 2 and 3, under this amendment the court could take the view that the circumstances were such that a mandatory penalty would be unjust.
There would be nothing to prevent the court from taking that view in a high percentage of cases, if not all cases, because there would no longer be a requirement to prove exceptional circumstances. Your Lordships must tell that to the thousands of victims of burglary, the thousands of people who are at the receiving end of the activities of drugs dealers and the community at large who have lost confidence in the willingness of the courts to punish persistent offenders. I shall return to that matter when I deal with court records.
The Bill as it stands provides that the court may set aside the automatic life sentence if it considers that there are exceptional circumstances which justify doing so. As I understand it, the effect of the amendment to Clause 1 would be to stipulate on the face of the Bill that the circumstances in question must relate to either of the two qualifying offences or to the offender. But it is not clear whether the circumstances would have to be exceptional because that word does not appear anywhere in the new clause. However, it appears in Clause 1 of the Bill. As far as one can tell, the new clause does not change that. Although I have listened to the supporters of the amendment, the issue is still far from clear. Therefore, in this context I invite the noble Lord, Lord McIntosh, when he rises to respond to the debate on this amendment to make clear to the Committee what his attitude will be when Amendment No. 3 is debated.
The court should be able to consider any exceptional circumstances of the qualifying offences or the offender, but I do not believe that it is either necessary or helpful to specify it in the Bill. I believe that it would have the effect of fettering the discretion of the courts. Section 22 of the Powers of Criminal Courts Act 1973 similarly provides that a court may suspend a prison sentence if that can be justified by the exceptional circumstances of
the case. Courts have interpreted that as extending to the circumstances of the offence and the offender and to any other background circumstances.
The amendment could have the effect of limiting the court's discretion because by stipulating that the exceptional circumstances must relate to either the qualifying offences or the offender the court could be precluded from taking account of other background circumstances. For those reasons, while I do not disagree with the view that the circumstances of the qualifying offences and of the offender may be relevant and exceptional--they are subsumed in the Bill as it now stands--I do not believe that it is either necessary or helpful to specify this on the face of the Bill.
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