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Baroness Carnegy of Lour: Before the noble Lord sits down, may I say that noble Lords who live in Scotland will be able to tell him that what concerns people there is not the level or the consistency of sentencing. Not everybody knows about all the mechanisms that there are to even these matters up, but they are very good, and I am sure they work. What worries people is the fact that the time spent in prison is so very different to the sentence that a person receives. That worries people. The Scottish media bear that out, as do my own discussions with the people who live where I do.
Lord Thomas of Gresford: With the greatest respect to the noble Baroness, she merely emphasises the point that I sought to make a moment ago; namely, that we are to have a proliferation of "life" sentences--that is the word being used--when the media and the people of Scotland know that it is not a life sentence that is contemplated at all; it is an indeterminate sentence. I would describe it as a public safety sentence. Why can we not use the correct expressions when contemplating changes of this sort?
Lord McCluskey: The noble Baroness, Lady Carnegy of Lour, just expressed her support for proposals in a different part, Part III, of the Bill; namely, the early release proposals, to which we shall turn in due course. She also, perhaps unwittingly, expressed total support for the speeches just delivered, particularly by the noble Lord, Lord Thomas of Gresford. I shall do the same. I propose to be brief at this stage since I intend to speak on the Question as to whether this clause shall stand part of the Bill. I can forgive the noble Baroness some of her errors, since in the article referred to by the noble Lord,
Lord Sewel, no less distinguished an authority than the Solicitor-General for Scotland said, with the utmost folly:
- "Nothing in the Bill will reduce judicial discretion".
There are 26 offences listed in the Bill, and they constitute 99 per cent. of the diet of the High Court in Scotland, in which I have been appearing for 41 years. These offences are almost all the offences with which I deal as a High Court judge. My discretion will be totally and utterly removed in any case in which a person has previously been convicted of such an offence. Let me make that abundantly plain. The literature and statements put out by the Government do not make it clear. I repeat, it is not a matter of having cognate offences, such as rape, to put people into prison. If a boy at the age of 15 interferes with his little sister and happens to receive a conviction for what is called lewd and libidinous practices which does not involve an assault and may involve no more, then at the age of 18, if in the course of a brawl in a bar he cuts somebody's face and inflicts a scar that requires four stitches, he goes to prison for life. As a judge I would never dream of imposing such a sentence. To say that my discretion is not removed is the utmost folly. For the Solicitor-General to write for readers of the Herald, the quality newspaper with the largest circulation in Scotland, that nothing in the Bill will reduce judicial discretion is totally and utterly misleading.
On the point about consistency, we have--it was sponsored by the recently retired Lord Justice Clerk, Lord Ross--the "sentencing information system". Every sentence imposed in the High Court in Scotland for the past five years is put onto a computer databank. I have a computer at home, and when I come out of court in the course of a day, I press the appropriate buttons and find out what we have been doing in assault cases of this character and that character. I can type in offence characteristics and offender characteristics, and can thus arrive at the centre of gravity, as it were, of what we are doing. Consistency is assured for that reason as well as for the reason given by the noble Lord, Lord Thomas.
We shall examine more fully the matter of "exceptional". But the Committee should understand this. When in a statute a word is used that has been used previously in statute, the courts will always endeavour to give that word the same meaning as it had on previous occasions. The word "exceptional" has been given a meaning in England and in Scotland. The Minister of State was quite right to agree with the Lord Chief Justice that it will be construed extremely narrowly. I will seek information about this; however, as I read the Bill, "exceptional circumstances" relates only to the second or qualifying offence, not to the first. We shall return to that. The sheriff court has no jurisdiction at all in this matter. It cannot and is not required by the Bill to pass a life sentence.
In conclusion, I listened to the remarks of the noble Lord, Lord Sewel, with some astonishment. He said things with which I agree about 99 per cent. He also said that they supported the idea of mandatory sentencing. His entire argument gave the lie to that
proposition. He cannot advance the argument that he has and say, "We support some degree of mandatory sentencing". I shall return to the matter at a later stage.3.45 p.m.
Lord Carlisle of Bucklow: I intervene with great trepidation on a Bill which describes itself as referring to Scotland. I do so in order to make only one very small point and to support the remarks of the noble Lord, Lord Thomas. As I understand it, this amendment is word for word the same as that passed by this place some two or three weeks ago in relation to Clauses 1 and 2 of the Crime (Sentences) Bill relating to England. Surely, if for no other reason than that of consistency, we should support in the same way this amendment to this Bill.
The noble Baroness says that that amendment may be changed in the Commons. It may; on the other hand, it may not. Certainly, if we change this Bill in the same way, the Commons will have the opportunity to deal with both Bills in the same way when they return there.
Lord Ackner: I rise to make a very short intervention. We had a White Paper in 1960 entitled, Crime, Justice and Protecting the Public. That contained a statement of the government view then in these terms:
- "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. This would make it more difficult to sentence justly in exceptional cases. It could also result in more acquittals by juries, with more guilty men and women going free unjustly as a result".
In the debates on the English Bill we heard not the slightest basis for the Government changing their mind. The noble Lord, Lord Carr, a former Home Secretary, in a debate that was the result of an intervention by the former Lord Chief Justice, Lord Taylor, said in terms that where the Government make such a fundamental change in philosophy they must be obliged to provide the basis for the change. None has been provided. It is very easy to support what is said. "It"--these mandatory sentences--"could result in more acquittals by juries with more guilty men and women going free unjustly as a result".
Let me very briefly give the Committee some indication as to how maximum and minimum sentences can detract from public safety and public protection. First, there will be many more cases where there are pleas of not guilty to avoid the risk of being convicted with a life sentence. The consequence of that will be to jam up the lists; it will involve victims having to go through the misery of a court appearance; and, because the onus of proof is such a heavy one, there will be some guilty persons who go free.
Secondly, there will be occasions when the jury, conscious of the severe consequences of a conviction and not wishing to impose what will in the event be a life sentence, will refuse to convict. There will be cases where witnesses, particularly those who have some family or emotional relationship with the accused, will either refuse to give evidence or not come up to proof.
There will be cases where the prosecution, anxious to achieve a conviction and knowing that the danger is that they will fail, will--as has occurred in America--enter into wholly unrealistic plea bargains, thereby shifting the discretion in sentencing away from the judges and into the hands of the prosecution or the defence.Finally, the prisons will be filled up, with the result that they will no longer have adequate resources to provide training and re-education to aid rehabilitation. As a consequence, more people will be convicted again, following their release from prison, and recidivism will increase. I respectfully suggest to the Committee that for all those reasons this amendment should be agreed to.
Lord McCluskey: There is one other matter that I should have mentioned. The prison population of Scotland at the moment is slightly smaller than 6,000. I put down a Question to the Government at about the time of Second Reading to ask how many people in Scotland are qualified to go to prison the next time they appear in the High Court and are convicted. The answer was 3,300: so 3,300 people are at risk of being sent to prison for life if they commit a further offence.
I believe that my noble and learned friend Lord Ackner referred to the 1960 White Paper; of course, he meant to refer to the 1990 White Paper.
Lord Macaulay of Bragar: We shall come to the question of prison population in due course. If I may take up the point made by the noble and learned Lord, Lord McCluskey, the Explanatory Notes to the Bill state:
- "There will be no significant increase in Prison Service manpower, as new prisons will be privately financed".
I do not quite understand what that means. The notes continue:
- "However the new assessment procedures will require the equivalent of 25 additional prison staff".
That must tie in with the figure given to the noble and learned Lord. It is also stated:
- "The provision of additional court sitting days will require the appointment of one Senator and 7 permanent Sheriffs".
I do not understand why eight extra judges are needed to implement the provisions of this Bill; judges just impose a different sentence.
An amendment of this importance tends to take on the dimensions of a Second Reading debate; I shall try to avoid that. I do not intend to go over the points made on Second Reading. As demonstrated by the amendments put down by the noble and learned Lord the Lord Advocate, he has taken notice of some of the points made.
From reading the Scottish press it seems to me that there is something peculiar in the concentrated government feeding of the press with regard to the Bill. I understand--though I say it with great reservation because I do not like hearsay evidence--that before the Bill ever reached the Committee the Lord Advocate and the Solicitor-General held a press briefing. I would like the Lord Advocate to say whether that rumour is true or untrue; and, if it is true, why it was held and what its purpose was.
If I may say so--with the greatest restraint because the Solicitor-General is not a Member of this Chamber--the article in the Glasgow Herald is one of the most disgraceful I have seen for a long time concerning the Scottish judicial system. I have to declare an interest because the noble and learned Lord, Lord McCluskey, was my devil master at the Scottish Bar. That does not make any difference. I hope that the Lord Advocate will take heed of what the noble and learned Lord said during the Second Reading debate and answer a question for a change. Did the Lord Advocate approve this article? Was it cleared by the Crown Office? Did he see a draft of it? Does he consider it proper, when a debate is taking place in this Chamber, that a senior law officer dealing with the Bill goes into public print to make an attack--this is nothing less than an attack--on a highly respected senator of the College of Justice? If we do not receive an answer today, I shall continue to seek one.
It has been claimed in the press in one form or another that this side of the Committee is out to wreck the Bill. Nothing of the kind. We accept the Bill--it will probably go through--and, in the best traditions of your Lordships' House, will try to amend it and make it sensible and workable and not the piece of judicial and legal nonsense that it is at the moment.
It is important to remember that life sentences were introduced into the system as a quid pro quo for doing away with capital punishment. That was the bargain that was struck. It is clear from the deliberations of the Select Committee which met a number of years ago. The transfer of the crime of murder into the terms of this Bill is quite inappropriate. It will increase the prison population. With respect to the noble and learned Lord, Lord McCluskey, the recent figure for Scotland is 6,200 prisoners "banged up" three in a cell, with the prospect of one new prison in Kilmarnock in 1999 which may hold 500. Will the Lord Advocate tell the Committee whether the figure given by the noble and learned Lord of an increase of 3,300 is correct? If it is correct, where will he put them? Is he going to put them up on the roof of the prison?
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