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Lord Mackay of Drumadoon moved Amendment No. 18:
The noble and learned Lord said: In moving this amendment, I should like to speak also to Amendments Nos. 19, 20, 21, 37, 38, 40, 53 and 55 which fall within the third grouping on the list. The purpose of Amendment No. 18 and the related Amendments Nos. 53 and 55--the new clause after Clause 2--is to remove convictions for which the offender has received an absolute or conditional discharge from the definition of "conviction" in Clauses 1 and 2 of the Bill which, on further offending, may lead to an automatic life or minimum sentence. These amendments arise out of our further consideration of the provisions of the Bill in the light of comments made at Second Reading and in another place, and our conclusion that such convictions should not fall within the scope of the definition. At the same time, the amendments will add convictions under military law to the definition and fill a gap that would otherwise exist in the provisions of the Bill.
I hope that the amendments will go some way towards addressing the concerns that possibly underlie Amendment No. 19 which stands in the name of the noble and learned Lord, Lord McCluskey, although the noble and learned Lord will no doubt make that clear in due course. His amendment seeks to remove from the Bill that part of the definition of qualifying conviction which makes it clear that convictions involving admonition, absolute or conditional discharge or a probation order will be regarded as qualifying convictions. The amendment in my name would achieve this for absolute and conditional discharge. While it is not wholly clear what the effect of removing the remainder of the definition would be, it is possible that the court would conclude that these other convictions should not be regarded as qualifying either.
Clause 1 seeks to deal with offenders who, despite having been convicted of a serious violent or sexual offence such as rape and the other serious offences set out in the schedule, go on to commit a further such offence. We have already dealt with the question of "exceptional circumstances". In so far as the circumstances of the first offence can be taken into account, part of those circumstances will be the disposal. That will be one of the many factors that the court will
The other amendments in the name of the noble and learned Lord, Lord McCluskey, would remove convictions obtained elsewhere in the United Kingdom from the definition of qualifying convictions. While I acknowledge--I believe that I mentioned this earlier in our deliberations--that there are some differences in the definitions of offences between Scotland on the one hand and England and Wales on the other, the Government do not think it reasonable that someone who is convicted of one rape in England and who then commits a second rape in Scotland should expect to be treated differently from someone who commits both rapes in Scotland. One can find endless permutations of how, if the noble and learned Lord's amendments were accepted, such curious results would occur.
The notion that by moving between England and Scotland one might avoid the full force of the law when one is engaging in serious criminal activity and committing further serious and dangerous offences is not one which anyone, I venture to suggest, would wish to encourage. It would not fit well for such freedom of movement to bring about different results of the nature that I have indicated.
Amendments Nos. 21 and 37 respond to suggestions made to the Government by the noble and learned Lord, Lord Hope of Craighead, on Second Reading. His view, which the Government accept, is that the work of the courts and others concerned with the legislation would be assisted if the full lists of the relevant offences in England and Wales and Northern Ireland were set out on the face of the Bill. That is what Amendments Nos. 21 and 37 are designed to achieve. I beg to move.
The Deputy Chairman of Committees (Baroness Nicol): I have to inform the Committee that, if this amendment is agreed to, I am unable to call Amendment No. 19.
Lord McCluskey: As I was the author of Amendment No. 19, perhaps it would be appropriate for me to speak at this stage. Unfortunately, because I am in Scotland, I did not receive a copy of the government amendments until shortly after noon today when I arrived here. However, as I understand the Lord Advocate he is accepting the point which is contained in my Amendment No. 19, so that a person who has merely been admonished or received an absolute discharge does not thereby earn a qualifying offence. If that is right, there is no need for me to pursue the matter further in Amendment No. 19.
The provision in the Bill as it stands, before amendment, is of course an absurd one, because plainly if a person appears in the High Court on one of the qualifying offences, and is given an absolute discharge or is admonished, manifestly the circumstances must have been exceptional, even though one does not know
Lord Mackay of Drumadoon: I am sorry to reject the noble and learned Lord's unqualified support. I apologise if he did not receive as much notice of the amendments as he might have done. If he turns to Amendment No. 55, which was the last one I mentioned in the list to which I was speaking, he will see set out there a new clause which will come after Clause 2 in which admonition is included. So the purpose of the Government amendment is to remove absolute and conditional discharge but not admonition.
Lord McCluskey: That means that I have to return to the fray. This might give us a little assistance in relation to what exceptional circumstances are or might be. If a person appears in the High Court and is convicted of one of the offences listed in the schedule--culpable homicide, incitement to murder, rape, attempted rape, use of a firearm and so forth--and is admonished, then the circumstances must have been exceptional; otherwise he would not have been admonished. If he had been admonished and the circumstances were not exceptional, the Crown would have used its right of appeal to go to the Appeal Court to say that that was an unduly lenient or inappropriate sentence. Does it not follow that the logic of that is that if a person subsequently obtains a qualifying offence, and his previous one was one in respect of which he was admonished, the circumstances must, almost by definition, have been exceptional? Does not the Lord Advocate accept that?
Lord Sewel: May I ask whether I am beginning to understand this? Is it that under Amendment No. 55, although an admonishment would count as a conviction, it would be open to argument that the nature of the disposal--the admonition itself--was the basis of an exceptional circumstance?
Lord Mackay of Drumadoon: This illustrates the value of leaving this to the court. The noble and learned Lord, Lord McCluskey, has expressed a view as to what must be exceptional circumstances. It is not for me to say whether he is right or wrong on that, but it illustrates the point I seek to make, and have sought to make throughout this afternoon: that those who sit in the High Court of Justiciary in Scotland, and their counterparts in England, are more than capable of looking at a term in a statute and a set of facts to see whether the facts can be described as exceptional circumstances.
My response to the point made by the noble Lord, Lord Sewel, is that the fact that an accused was admonished on the first occasion is a fact which could be relied upon in advancing the argument that there were exceptional circumstances. I do not for a minute concede that in every case in which there is an admonishment it would automatically follow, as night
Lord Sewel: Before the noble and learned Lord sits down, how would the court find out whether the offence had occurred 20 years ago and there had been an admonishment? What material would be available to the court hearing the second offence upon which it could make a judgment that the admonishment, in the context of the case, was a recognition of the exceptional circumstances?
Lord Mackie of Benshie: I wonder whether the noble and learned Lord can enlighten me. I have listened to the debate with interest. I understand that he is prepared to trust the judges to say what are exceptional circumstances, but he is not prepared to trust them with the ordinary circumstances of sentencing.
Lord Mackay of Drumadoon: With the greatest respect to the noble Lord, that is rather more a comment on my argument than a matter upon which he expects a response. I have heard him make it before. In fact, as I recollect, he made it on Second Reading. I have already explained at some length my position and that of the Government on automatic life sentences.
I return to the point made by the noble Lord, Lord Sewel, about the practicalities of the situation. It is a valid point. It is one which is obviously of importance and which will require to be addressed. The Crown's practice is to retain papers, not to destroy them. In the course of my service as Lord Advocate over the past year or so, I have been surprised by the number of occasions when dusty sets of papers have been brought out, and cases which I prosecuted as an advocate depute, and which others prosecuted before me, had to be looked at for whatever reason. That is a matter which will be required to be discussed by the Crown with the court and with those charged with the defence of those who appear as accused persons in the High Court, the Faculty of Advocates, solicitor advocates, and those who instruct them. It should be possible to work out procedures, whether Acts of Adjournal are required to be passed by the court is a matter which will have to be looked at. Agreed practice may be another option to be explored. I see no practical reason why we cannot make sure that where a particular accused wishes the court to address the circumstances of an earlier conviction, no bar is placed in the way of him seeking to do so.
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