| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Hooson: The Minister does not quite meet my point. Does she agree that in the theoretical case I outlined there should be a means which would give a judge a discretion with regard to mitigating circumstances? None of the circumstances I outlined seem to me to be "exceptional circumstances". That is what troubles me about this requirement. No distinction is made in this case. The example of a drug offence illustrates the problem that the Government have got themselves into in regard to the mandatory sentence. It does not distinguish in any way between the casual offender and the hard-bitten drug dealer.
Baroness Blatch: Whether we are talking about the Bill as it was earlier this afternoon, or as it is now as a result of the amendment, if an offence is a third, or second, qualifying offence--in other words, the likelihood is that, if "exceptional circumstances" does not apply, or under the new amendment "specific circumstances" does not apply either to the offence or the offender--then the defendant, the defendant's representative and the trial judge will know that the
judge has a power under the Bill to consider setting the mandatory sentence aside. Given that, the judge will want all the information that he needs at his fingertips in order to reach a view as to whether the mandatory sentence should be applied, or the mandatory sentence plus whatever sentence he wishes to impose, or whether there is a good case for setting it aside. If he takes the view that it is borderline and that he does not have enough information--that is, there is another aspect of the person's character that can be accessed only by means of a pre-sentence report from a probation officer who has some knowledge of the person--he is entirely free to ask for a pre-sentence report.The difference between us is whether we should go beyond that and require in every single case, unless there is an agreement that he should not, that a judge, whether he wants it or not, should unnecessarily delay the case by calling for a pre-sentence report.
Lord Thomas of Gresford: Perhaps the Minister does not appreciate--I am sure she does--that the pre-sentence report comes from an independent source. She referred to the defence advocate or an unrepresented defendant putting forward circumstances himself which a judge may take with a pinch of salt. Before the judge reaches the point of giving some form of mandatory sentence such as is proposed in the Bill, it is vital that he have that information unless, as the amendment proposes, it is agreed by counsel for the defendant or the defendant himself that he does not want one. So instead of leaving it to the judge to decide, in effect it is left to the defendant to decide whether he feels that a report on him would be helpful.
Perhaps the noble and learned Lord the Lord Advocate will forgive me if I illustrate the point made by my noble friend Lord Hooson. Last Monday afternoon I appeared in the Chester Crown Court, the court of Sir Robin David, who is an experienced and distinguished judge. As I was waiting for my case to come on, two drugs cases were called, one after the other. The first involved a man who had about 6.5 kilograms of heroin in his car boot when he was stopped on the motorway. That case was adjourned for reports, and I have no doubt that in due course something condign will happen to that person. Chester Crown Court is top of the league for heavy sentencing, and there is likely to be an application to move it elsewhere. The case that followed was of a person who was selling Ecstasy tablets to his friends at a party. The learned judge sentenced the defendant in that case, without a report, to 120 hours' community service. It is a Class A drug; he was trafficking; he pleaded guilty to trafficking. The difference between the two offences is enormous. Yet the same two offences appear as a qualifying offence in the Bill.
With the greatest respect to the ladies and gentlemen in the Box assisting the Minister, it is the lack of practical knowledge of the courts behind these Home Office proposals as embodied in the Bill, the lack of knowledge of how the Crown Courts work, that makes the Bill so bad. We are not speaking, or at least I am
not speaking, from on high, condemning from a high position in the judiciary. I speak as a practitioner at the coalface. I know that the Bill will not work.
Baroness Blatch: On the first example that the noble Lord gave, I am surprised that reports needed to be called for--although it had to be a matter for the judge's discretion--as the defendant had two previous convictions from dealing in Class A drugs and as the haul that he was carrying in the car boot was substantial.
In the second case, the noble Lord did not say whether a pre-sentence report had been called for. I suspect that if there was a community service sentence, the likelihood is that a report would have been called for, if only to discuss with the probation service the nature of the community sentence.
For the second time today I am on the side of the judges because I believe that they are people who can be trusted about whether they have a sufficient body of information coming through the trial hearings, with or without the involvement of the probation service, to make a judgment as to whether they need the one last piece of information--the pre-sentence report.
The difference between us is not that the reports are not helpful, nor that pre-sentence reports do not provide illuminating evidence that has an influence on the judge at the time. I simply say that it should be a matter for the judge. Where the judge blatantly, with all the matters that he has had to consider, decides that he does not need a pre-sentence report and believes that he has all the information necessary for him to come to a judgment about the defendant, why should we, in the terms of this amendment, require him unnecessarily to delay proceedings?
Lord Ackner: Is not the answer to the noble Baroness's question that, if you are to impose so serious a sentence as life imprisonment, you should not rely on the judge's hunch as to whether there is some information that could bring the accused inside the class of special circumstances? If you are automatically to impose sentences as horrific as these, then the judge should be provided with all the information which is available and not just the information which he thinks, rightly or wrongly, may still exist. It is as simple as that.
Lord Williams of Mostyn: It is indeed as simple as that. The Minister said that she was on the side of the judges. I hope that that will not be fully printed in Hansard because she will be in subversive company these days.
Lord Williams of Mostyn: As the Minister described the nature and function of a pre-sentence report, I became more and more convinced that she was about to accept my amendment because it would deal with such relevant matters as the background of the offender, perhaps the circumstances of the offending and all the basic material that a judge needs.
It is idle to suggest that the stage of the contest in the court at which the prosecution seeks conviction and the defendant seeks acquittal has anything necessarily pertinent to do with the information that the judge needs in the sentencing exercise. As the noble and learned Lord said, if the Bill ever became law, it would impose duties upon judges which they would be able to discharge consonant with their oath only on the fullest possible information. Where is the information to come from?
As the noble Lord, Lord Thomas, pointed out, assertion by the defence advocate is normally taken with at least two buckets of salt. There is always someone who has offered the defendant a job, starting, strangely, next Monday, on paper not headed, not typed and with a signature which is difficult to decipher. No sensible judge pays any attention to that. What he does pay attention to is an independent, informed view from a non-partisan source; that is to say, the person who produces the pre-sentence report.
The Minister said that the judge will want all the information required. Precisely. The noble and learned Lord, Lord Ackner, indicated that without a pre-sentence report, unless one raises one's finger in the air, having first spat on it, one does not know precisely what information may be available. Again the Minister asked a rhetorical question, so nobly I offer the answer. Why should the defendant's consent be required? It is because the defendant is represented and in rare circumstances is advised, after proper legal assistance and advice, that a report will not be needed. That was a commonplace, for example, when a probation order was being considered as an alternative. The judge would ask the defending advocate: "Do you want such-and-such a report or such-and-such other report?". We are dealing with an extremely draconian system which the judges will be obliged loyally to put into effect. The amendment offers them the tools to do the job which the Government seek to impose upon them.
I am on the side of the judges and believe that they ought to have every opportunity to sentence justly. I shall not press the amendment, but the point remains. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord Williams of Mostyn moved Amendment No. 8:
The noble Lord said: I am becoming recidivist. In speaking to Amendment No. 8, I wish to speak also to Amendments Nos. 21, 29 and 32.
The amendments are based on the necessity and desire that the public should be properly protected against over-lenient sentences. There are gaps in the ability the present Attorney-General has to maintain and launch appeals to the Court of Appeal (Criminal Division) because of over-lenient sentences. I give one example. It was not very long ago that a fraudster on an enormous scale (many millions of pounds),
There may be occasions in the new regime--I stress again, if the Bill ever becomes law--when a judge has come to a conclusion which the Attorney, on sensible reflection, after representations from the Crown Prosecution Service, will conclude has been unduly lenient. Therefore the scheme which is variously described in Amendments Nos. 8, 21, 29 and 32 gives power to the Attorney to launch appeals against over-lenient sentences. Therefore, Amendment No. 8:
The relevant section in Part IV of the earlier Act is Section 36, which states that, if the Attorney comes to the conclusion
Therefore, Amendment No. 8 is a protection from the public against over-lenient sentencing specifically in the context of this Bill.
I turn quite shortly to Amendment No. 21, which is in the same category:
Again, that is a protection for the public. The same is true for Amendment No. 29.
Amendment No. 32 concerns a wider point to deal with rogues and criminals such as Mr. Levitt, I believe last seen photographed drinking champagne--I dare say it was a toast to absent friends; namely, those with whom he might reasonably have expected to share a cell, but did not do so. The amendment entitles the Secretary of State to broaden that category of offence which the Attorney may use in circumstances in which sentences have been too lenient.
I cannot see any present rational, sustainable objection to this amendment. Therefore I sit down in the happy and confident belief that the Government will accept it. I beg to move.
Lord Carlisle of Bucklow: Having taken part in the debate on Clause 1, which restored the idea of adjusting the power of the court not to impose a mandatory sentence in certain circumstances, in all honesty I must rise to my feet to support the noble Lord's amendment on this occasion. Many Members of the Committee have argued that the right way to approach over-lenient sentences is not to impose mandatory sentences in all
The Attorney General himself was recently reported in an article in, I believe, The Times as saying what a success the power had been, how it had been used effectively and that in 89 per cent. of the cases that he had taken to the Court of Appeal the sentence had been increased. I have no doubt that it will help in raising the level of sentences, of which the Minister has complained, to a level which she believes the public would consider more acceptable, if the Attorney General had the power to appeal against over-lenient sentences in cases such as burglaries. That would give the Court of Appeal the opportunity to lay down an appropriate sentencing policy and a guideline case.
I hope that the Minister will realise that this is intended to be a constructive amendment, to meet in part the damage which she believes some of us have done--I do not accept that--to the earlier part of the Bill. It is a constructive attempt to deal with over-lenient sentences. I certainly hope that she will take away the amendment and look at it in the context of the amendment on which the Government was defeated earlier this evening.
Page 1, line 20, at end insert--
(" ( ) Where a court has made a statement under subsection (3), Part IV of the Criminal Justice Act 1988 shall apply to the sentence which has been imposed by the court.").
"Where a court has made a statement under subsection (3), Part IV of the Criminal Justice Act 1988 shall apply to the sentence".
"that the sentencing of a person in a proceeding in the Crown Court has been unduly lenient ... he may, with the leave of the Court of Appeal, refer the case to them ... to reviewing the sentencing".
"Part IV of the Criminal Justice Act 1988"--
"shall apply to any sentence which is imposed by the court ... whether or not it is the prescribed minimum sentence".
8.30 p.m.
Next Section
Back to Table of Contents
Lords Hansard Home Page