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Baroness Carnegy of Lour: As an ordinary lay person, I find these semantic arguments difficult to follow. "Exceptional circumstances" in any normal parlance are circumstances which make it possible to except what one does from what is laid down. I should have thought that it was a question of judicial discretion. I know that the noble Lord dislikes the whole thing, but surely this argument is absolutely basic to the Bill. I should have thought that the phrase means what it
means in ordinary English. I wonder whether my noble and learned friend the Lord Advocate can say whether there is any other legislation in Scots law involving "exceptional circumstances". Is there a problem with the phrase elsewhere? When reading the Bill, I thought that a judge could operate the provision quite well. It seems to me that this is an unnecessarily complex argument.
Lord Hope of Craighead: There is a particular problem here to which I attempted to draw attention on Second Reading. The word "exceptional" is itself capable of interpretation and I have no doubt that, as case follows upon case, the Criminal Appeal Court in Edinburgh, which is not subject to review by your Lordships' House in its judicial capacity, will be able to evolve a satisfactory meaning for the word. However, there is a problem which arises in relation to road traffic legislation where the word "exceptional" is not used, but where the word "special" is used. In certain cases, certain events can follow if the circumstances are "special". There is some authority for the view that the phrase "special circumstances" does not include the circumstances of the offence on the view that Parliament has laid down a mandatory disqualification and that that in itself is enough to justify the imposition of the mandatory disqualification, irrespective of whether or not the offence is serious.
It was for that reason that I asked the noble and learned Lord to consider on reflection and in the light of what I had said whether the Government were prepared to say at least that the phrase "exceptional circumstances" could cover the circumstances of the offence. Without committing himself to what the word "exceptional" might mean it would be of assistance if the noble and learned Lord were prepared to confirm that the Government understand the phrase to be wide enough to include not only the circumstances of the offender, but also the circumstances of the offence.
As I said at Second Reading, it would be perfectly understandable and intelligible if the noble and learned Lord were to say no to that question--in other words, that the circumstances of the offence were not to be taken into account. On the other hand, it would be logical for him to say yes. However, what I cannot understand is why the Government should not be prepared to give an answer to that question. In view of the fact that they have brought forward this legislation they must at least have some view as to whether the circumstances of the offence can be taken into account in deciding what is and what is not "exceptional".
Lord Mackay of Drumadoon: The invitation which has been extended to me by noble Lords on all sides of the Committee to amplify the Government's construction of the term "exceptional circumstances" has been urged on a number of my colleagues both in this House and in another place and it has been resisted until now. I have no intention of departing from that practice.
I believe that I am right in my recollection that the noble and learned Lord, Lord Hope, was not in the Committee earlier when, in speaking to Amendment No. 1, I made it clear that the Government can see no
reason why the court could not construe the term "exceptional circumstances" to include the circumstances of the two offences and those of the offender. It was for that reason that I invited the Committee to take the view that part of that first amendment was unnecessary. I refer to the subsection which was restricted to Clause 1. I believe that that position was also made clear by the Minister of State in another place when the Bill was in Committee there. Indeed, that has been the Government's position throughout and nothing that I have said so far departs from or amplifies that.In response to a point raised by the noble and learned Lord, Lord Ackner, I said that a fact which indicated a period of 20 years or more between two offences is the sort of fact one would anticipate being used in advancing the argument, which would require to be advanced, that in looking at all of the circumstances before the court--not just the mere fact that there were 20 years between the two convictions--which could include the circumstances of both offences and those of the offender, it would be possible for the court to take the view that there were exceptional circumstances which would justify the court not imposing either an automatic life sentence or a mandatory sentence under Clause 2.
The noble Lord, Lord Thomas, suggested a number of situations which might arise such as the mere gap in time between the two offences or a significant difference in the character of the offences. For example, a serious sexual offence, such as rape or unlawful intercourse with a girl under the age of 13 years, may be the first offence, while robbery with the use of a firearm is the second. The noble Lord mentioned the English concept of "joint enterprise" which we in Scotland refer to as "concert" or "art and part". I believe that that will arise in due course when we examine certain of the individual offences set out in the schedule of qualifying offences. He gave as another example a case in which the judge was satisfied on the information before him that there was no possibility of danger to the public. I find it difficult to imagine a situation in which a judge can be so satisfied when dealing with an offender who has been convicted for the second time of a serious sexual or violent offence, but I do not exclude the possibility that such a view can be taken.
All of these examples illustrate the point that I sought to make earlier. It is for the courts to construe the term "exceptional circumstances". No doubt if there is any ambiguity about it, the courts will, in accordance with the authority of Pepper v. Hart, have recourse to what has been said in this Chamber and in another place. They may feel that it is unnecessary to follow the route which that authority opens up, but it is for the court to construe it. That is the approach that the Government have taken, rather than setting out in detail and at length a great variety of different considerations that may or may not fall to be looked at by the courts when they construe the clause. Once a construction is decided upon, the court will apply it to the facts of the particular case.
An invitation to expand upon this matter has been given in the past. The Government, having considered the matter very carefully, are firmly of the view that that is not the way forward. Courts day and daily have to construe provisions in Acts of Parliament. The matter referred to by the noble and learned Lord, Lord Hope, is one example of that. Parliament could have given various examples and more guidance but chose not to do so. That is the route that we believe is the correct one to be followed here.
I know that my explanation will not satisfy the noble Lord, Lord Thomas--he has been asking for it repeatedly--but equally it will not surprise him. I hope that, having heard what he has already heard in the past, he will accept that there is no point in proceeding with either this amendment or the subsequent one.
7 p.m.
Lord Thomas of Gresford: I express my disappointment but not surprise at the answer that has been given by the noble and learned Lord the Lord Advocate. As a rugby referee, I have more guidance from the Welsh Rugby Union as to the meaning of the rules of rugby football than the noble and learned Lord has just given in respect of this Bill. While I am disappointed in one direction, my heart leaps in another. Given the definition of "exceptional circumstances" proposed by the noble Baroness, Lady Carnegie of Lour--which amounts to what is just and unjust--the noble and learned Lord has virtually accepted what she has said.
The noble and learned Lord says that the courts must construe this phrase; but he appears to forget that the courts seek to determine what Parliament intends. If Parliament in the guise of the Lord Advocate do not take this opportunity to expand a little further on it, it is for the judges to exercise, as they have over the centuries, their own beliefs as to what is just and unjust and what is right and what is wrong. I welcome the Pepper v. Hart decision which will enable the words that have been spoken on this amendment to be read by every judge throughout the land, just as if the Welsh Rugby Union were told, "Boys, is up to you what you do in determining what this phrase means". I am happy with that. If it is left to the judges we will get justice in this country. Because of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCluskey had given notice of his intention to move Amendment No. 13:
The noble and learned Lord said: Perhaps I may take this opportunity to say in reply to the noble Baroness, Lady Carnegie of Lour, that this matter is not one of semantics. The meaning of the expression "exceptional circumstances" is not clear to me or, so I understand, to the noble and learned Lord, Lord Hope of Craighead, who was the Lord Justice-General for Scotland. In the letter to which I referred from the present Lord Justice-General reference was made to the fact that at the stage of sentencing the judge would have to decide
[Amendments Nos. 14 to 17 not moved.]
Page 2, line 16, leave out ("exceptional").
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