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Lord McIntosh of Haringey: I am sorry to interrupt the Minister, but before she leaves the point can she tell the Committee to what other exceptional background circumstances she is referring?
Baroness Blatch: There is a body of evidence that results from statute and court practice. I shall give the noble Lord an example. I have in mind a case involving a policeman where the court exercised its right to suspend sentence. Perhaps I may refer to another case. An appellant pleaded guilty to unlawful wounding. He was a taxi driver and the victim was a passenger in the taxi who disputed the fare requested at the end of the journey. As the appellant drove away the victim kicked the back of the taxi and caused damage. The appellant stopped, got out and chased the victim. When he heard the victim call to his wife to bring him a crowbar the appellant took a chisel from a toolbox in the taxi and struck the victim a number of blows to the head and face. The victim suffered several lacerations that required stitches, bruising and swelling to the face and a suspected fracture to the orbit of the left eye. The appellant was sentenced to six months' imprisonment. The sentencer stated that he considered the offence so serious that only a custodial sentence could be justified for the offender, and that he imposed a shorter sentence in view of the mitigating circumstances--the appellant's good record, the fact that his wife and mother-in-law were dependent on him and his remorse. In the view of the court, there was no error in the sentencer's decision that the offence was so serious that only a custodial sentence could be justified. The court would not accede to the submission that the sentence should be suspended. In that case the court was not allowed to.
Perhaps I may turn to the other case, because the noble Lord wants an example. The appellant had been a serving police officer for almost 20 years and had lived in a police house. His wife had become seriously disabled and could walk inside the house only with the aid of a stick. Outside the house she required a wheelchair. The appellant had been advised to have building works done to the house to make life easier for her and had been under the impression that he would receive a grant for the whole of the cost of the necessary work. When the work was started and the appellant was committed for the whole sum, he discovered that only 75 per cent. of the cost could be covered by the grant and he fell into financial difficulties as a result.
As a result of the offences--which were that he was stealing money from the police station--the appellant had lost his employment and his house and the work that had been done to it still had to be paid for. His pension was frozen and would not be payable until he was 60. He had made two attempts at suicide and had been under psychiatric care for reactive depression, partly arising from the stress and anxiety of the offence before his arrest. A medical report described him as devastated by the charges and indicated that he was in need of continuing psychiatric care.
The decision was that the mitigating circumstances should not be allowed to obscure the fact that this was an exceedingly serious breach of trust committed by a police officer in the course of his responsibilities for the administration of justice. Although the largest sum in any one of the counts was just over £500 and the next largest £360, there could be no question that each such offence, whether taken individually or in combination with any one such offence, was so serious that only a custodial sentence could be justified. It was not suggested that the sentences of three months were not commensurate with the seriousness of the offences, as was required by Section 2(2)(a). The court had been invited to treat the case as one in which there were exceptional circumstances so as to justify the court in suspending the sentence under the Powers of Criminal Courts Act 1973.
I am not saying that that is an example of what will happen in this case. But there are surrounding circumstances which can be taken into account. We are saying simply that we should not fetter the discretion.
Perhaps I may continue, because I believe that the noble Lord is artfully taking me away from the thrust of what I want to say about the importance of the debate--
Lord Graham of Edmonton: The Minister has been led astray!
Baroness Blatch: The noble Lord has a vested interest in doing just that.
The effect of the proposed new clause, combined with the other amendments to Clauses 2 and 3, is quite a different matter. The effect would be to replace the "exceptional circumstances" test altogether. Instead, the court would have the discretion to set aside the mandatory penalty where there are specific, not exceptional, circumstances which relate to the offence or the offender and which would make the mandatory sentence unjust in all the circumstances.
This is a wrecking amendment. It would quite simply drive a coach and horses through the provisions in these clauses. They are designed to protect the public from persistent and serious offenders and to ensure that punishment takes proper account of the persistence of the offending. The changes proposed by the noble Lord, Lord McIntosh, would seriously undermine these important objectives. No longer would the circumstance have to be exceptional; it would simply have to be specific. Any judge could exercise any judgment whatever--as indeed judges do now--that it was unjust, and against no test at all.
We have accepted that the court needs to have some discretion to set aside the mandatory penalties. However, any such discretion should not be so wide as to allow that mandatory penalties will not be imposed perhaps in the majority of cases of serious persistent offending. We believe that exceptional circumstances should be just that--exceptional--determined by the court and explained clearly in open court.
I should like to examine the differences between the "exceptional circumstances" test and the alternative which the noble Lord, Lord McIntosh, has put forward. The new test differs from the "exceptional circumstances" test in three respects. First, the circumstances must be specific. Specific to what? Secondly, they must relate to any of the qualifying offences or to the offender. I have already discussed this point in relation to Clause 1 and will not therefore say any more about it. Thirdly, and most important, they must be such as to make the mandatory sentence unjust in all the circumstances.
The noble Lord, Lord McIntosh, has suggested that the words "specific circumstances" would serve to narrow the test of unjust in all the circumstances. His colleague in another place, Mr. Michael, did not agree with that view. But to my mind they do not. It seems to me that they simply mean any circumstances that can be clearly defined and spelt out as specific. This of course is what courts are already asked to do under the Bill when explaining what the exceptional circumstances are.
The phrase "unjust in all the circumstances" goes to the heart of these amendments. In relation to this aspect of the amendments, my concern is that the discretion to set aside the mandatory penalty would be too wide. The noble and learned Lord, Lord Bingham of Cornhill, has said that the courts interpret "exceptional circumstances" to mean very unusual at the very least. I make no apology for saying that that is exactly what we want to achieve. The whole essence of mandatory penalties is that they should be imposed as a matter of course in the generality of cases. If they are not, then mandatory penalties will not have the effect which we intend and expect that they should. My noble friend Lord Elton gave the most elegant justification of why it is important to have the near certainty, except for exceptional circumstances, that those mandatory sentences will apply if people are persistently burgling, dealing in Class A drugs and repeating violent offences.
The noble and learned Lord, Lord Bingham of Cornhill, also said that a test based on the trial judge's view of whether or not the mandatory sentence was unjust would enable the judge to avoid imposing the mandatory sentence in any case where he considered it simply anomalous to do so. That is the effect of the amendments to Clauses 2 and 3, not to Clause 1.
The amendments would negate the purpose of mandatory sentences and would allow the judge to set aside the mandatory penalty in any case where he would otherwise have been minded to impose a different penalty. And that would make nonsense out of the whole concept and purpose of mandatory penalties.
This is a wrecking amendment and would destroy the essential point of statutory minimum sentences for persistent burglars and drug dealers by allowing such a wide discretion to the courts which would lead us back to where we are now.
Mandatory penalties will not lead to injustices. On the contrary, I would contend that without mandatory penalties justice is not being done to the wider community. Perhaps I could remind the Committee of the figures. A recent sample showed that the average sentence imposed by the Crown Court on offenders convicted of domestic burglary for the first time is 16.2 months. After three or more convictions, the average rose to only 18.9 months, and after seven or more convictions to 10.4 months. And 28 per cent. of offenders in the Crown Court with seven or more convictions for domestic burglary were not sent to prison at all. Where is the justice in that? Is it any wonder that the public have lost confidence?
We believe that where the stringent qualifying conditions set out in Clauses 2 and 3 are met mandatory sentences should be imposed as a matter of course in most cases. There is no injustice involved in Parliament saying that persistent offenders who continue to offend should go to prison for a period not less than that stated in the Bill or that dangerous offenders should not be released without a risk assessment being carried out first.
There may be occasional cases where the mandatory penalty would be unnecessary or inappropriate. That is why the Bill provides discretion for the court to set aside the mandatory penalty in exceptional circumstances. In my view, this strikes the right balance. Deliberately widening the scope to set aside the mandatory sentence would seriously undermine it.
The noble Lord, Lord McIntosh, referred to the USA. This is not American-style justice. In the United States, if somebody commits any crime, however serious or trivial, on three occasions, he receives a sentence of 25 years. These are narrowly focused propositions set out in the Bill. I stand by that.
My noble friend Lord Carlisle referred to the sovereignty of Parliament. I must say to my noble friend that Parliament is sovereign in these matters. If it should take the view that mandatory penalties should apply for certain categories of crime, then it is for the courts to implement the will of Parliament.
My noble friend referred to the fact that many senior members of the judiciary support his proposals. I speak for the man on the top of the bus. There is another group of people whose views are paramount in these matters, not just senior judiciary. I am talking about the victims of crime and the public who look to Parliament for the right degree of protection set out in a framework to be implemented by the courts.
My noble friend appears to suggest--and I find this almost offensive--that stealing valuable items from people who have such items should be taken more seriously than the persistent burglar who daily terrorises people who are much less fortunate by stealing items of lower value such as a bottle of milk, 50 pence from a
purse or small but essential items from people who do not have very much. Persistent burglary on any scale is a scourge on our community. A disproportionate number of people at the lower end of the income scale suffer almost daily from it.
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