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Lord Henley: I find myself in something of a quandary over this amendment and I rather think that the noble Lord, Lord Williams, will feel very much the same about his situation; indeed, he will be in an even greater quandary than I. Normally, I like to support my noble friends Lord Windlesham and Lord Carlisle of Bucklow and on some occasions I would even wish to support the noble Baroness, Lady David, although, as she will recognise, I do not always support amendments which she puts forward. Sadly, on this occasion I cannot offer my support from these Benches to my noble friends over this particular amendment. As my noble friend has reminded the Committee, it is only a little over a year since these new provisions were introduced by my right honourable friend Mr. Michael Howard and we have only had a year to see them in operation. Having been introduced into both Houses of Parliament and agreed to, it would be premature to remove these provisions at this stage.
Having said that, I find myself, as I say, in something of a quandary. I suspect that the position of the noble Lord, Lord Williams, is somewhat worse. He has been reminded by my noble friend Lord Windlesham of his words a little over a year ago, as the earlier Bill was proceeding through both Houses of Parliament. The noble and learned Lord the Solicitor-General reminded us that on top of one of his earlier notes was the word "resist". We have all seen that word on a great many notes prepared for us by officials as Bills pass through Parliament. No doubt the noble Lord has "resist" written very firmly at the top of his brief. Of course, I do not know whether or not that is the case and certainly it is not for me to put forward the arguments against this particular amendment. However, I am looking forward to hearing the noble Lord, with his usual eloquence, putting forward those arguments. I have no doubt that he will do so after I have sat down.
Lord Harris of Greenwich: The reason an absurdity of this kind was put on to the statute book was because of the frenzied pre-election atmosphere obtaining at that time. It was a nonsense; this House knew it was a nonsense when it was debated; and unhappily it remains on the statute book. Here is an opportunity for making some limited progress in putting this matter right.
The noble Baroness, Lady David, and I agree with one another almost always on criminal justice issues, but the one matter on which I am afraid I cannot possibly agree with her concerns this fancy that
Lord Henley: I feel bound to support the noble Lord. I did not think it was officials who bent the ear of Ministers in the Home Office. I suspect that it is the Ministers themselves in the Home Office who have changed the views they held a little over a year ago and have come to pursue some of the policies previously advocated by my right honourable friend Mr. Michael Howard.
Lord Hylton: I should just like to ask the noble Lord, Lord Henley, the following questions. Does he not see some risk of automatic sentences turning out to be idiotic sentences? Does he really want English prisons to become clogged up in the same sort of way as American prisons?
Lord Henley: As I have said, these matters were debated at some length a little over a year ago and, as I was putting forward, the provisions have only been in place for a year. Therefore, it is right to give them a little longer to have an effect so that we can see exactly how they operate. I do not think it is right that Parliament, less than a year after these provisions were passed, should seek to repeal them.
What this amendment seeks to do is to remove one part, and one part only, of the automatic life sentence offences. As the noble Lord rightly pointed out, this is simply one of 10 and relates to Section 18 wounding or causing grievous bodily harm with intent. I think one needs to pause a moment and consider the full definition. It is not wounding or causing grievous bodily harm; it is committing either of those two offences with the overriding intent of causing grievous bodily harm. In the language of today: some really serious physical injury. The first deployment--
Lord Windlesham: I am sorry, but before the noble Lord leaves that point, could I ask him to elucidate it? In my reading of paragraph (d) of Subsection (5), the words in brackets referring to wounding or causing grievous bodily harm with intent are merely a short description of every offence covered under Section 18 and do not limit certain offences within Section 18. Is that not correct?
Lord Williams of Mostyn: I am not contending to the contrary. What I am saying is what I believe to be a correct summary of the law: that simple wounding or simple grievous bodily harm is not sufficient to constitute Section 18 under the Offences Against the
Perhaps I may turn to the various ways in which the argument was deployed. First, the noble Lord rightly said that the language of 1861 is likely to be archaic and unhelpful in 1998. The purpose behind the Home Secretary's remarks is that the whole question of the offences under the Offences Against the Person Act needs to be reviewed. Of course, it would necessarily follow that, if the draft Offences Against the Person Bill is enacted in its present form, we shall have to redefine paragraph (d) of Section 2(5) of the Crime (Sentences) Act 1997. But that is an inevitable consequence about which I personally see no difficulties.
The noble Lord, Lord Thomas of Gresford, said that a jury would be unwilling to find a verdict of guilty on a Section 18 offence if it knew that it meant life imprisonment. But life imprisonment is for a second offence. In those circumstances, how is the jury to know that it is a second offence?
Lord Thomas of Gresford: Perhaps I may reply to the noble Lord. This was an issue which I recall being taken up by the noble Baroness, Lady Blatch. She felt that it was impossible that a defence counsel would ever reveal to a jury a previous conviction for a similar offence. I pointed out to her that in practice it is frequently done--I am sure the noble Lord has done it--if there is an advantage to be gained for the defendant. In a situation where there was a second Section 18 charge, which did not involve permanent injury to a person but came within the definition of the offence, one would certainly tell the jury what the result of a guilty verdict would be.
Lord Williams of Mostyn: If one told the jury that, it would be professional misconduct, as has plainly been set out by the Bar Counsel and I believe by the Court of Appeal, Criminal Division. The introduction of a previous conviction to establish that life imprisonment was the likely sentence on conviction of the present charge, would be wholly wrong, as it was found to be wholly wrong by the Court of Criminal Appeal as it then was, when murder was still a capital offence, for counsel to say to the jury, "It is hanging for my client unless you make a recommendation for mercy". There is no doubt about that professional position.
Lord Ackner: That is perhaps a bit simplistic. If the facts fit, one can ask the accused, "Have you committed any previous offence?" and his character can be put in. He may say, "Yes". Let us say that one of the offences is a triggering offence; he can then be asked, "Are you aware what might be the consequences to you, having that previous record, if you committed an offence of the type with which you are charged?". He may answer, "Yes". He can then be asked, "Did you know that before the offence charged here?".
In practice I do not see any sensible distinction and I retain my position that it is professionally improper to seek that sort of advantage as opposed to a legitimate advantage when putting the defendant's character in on a different basis.
I turn from that because it leads to a further point. Many of the propositions put forward are the usual shibboleths which are brought out on these occasions when there is no better argument to hand. For instance, if juries know that life imprisonment is the maximum sentence for rape at the moment--which they may or may not do--I doubt, in the absence of jury research, that jurors ponder, when having a quick knit or a cigarette, what the sentence is likely to be. Jurors do not work in that way. It demeans the conscientiousness of jurors who have taken their oath to suggest that. Jurors do not say in rape cases, "If we convict, it means life imprisonment", any more than they do in cases involving the difference between murder and manslaughter.
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