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Lord Harris of Greenwich: Will the noble Lord explain the advice given to him at the top left-hand part of his brief, where he reassured us that the word was not "reject" but "explain helpfully"? It sounded to me as though he had misread what was at the top left-hand side of his brief.

Lord Williams of Mostyn: Since I myself wrote down "explain" and underlined "helpfully", I believe that is what I have done. What I have done is to point out quite plainly some facts. The commencement of this section was as recent as 1st October last year. The second proposition is that we have had little opportunity to see this in action. The third is a gentle injunction to see how things actually work out; whether they work satisfactorily or not; and if they do not, they will have to be reviewed. But from October to February--I am not about to break into song--is not really a very long time.

Lord Windlesham: I thank the noble Baroness, Lady David, who is a co-sponsor of the amendment, for her effective speech from the Government's own Benches. My noble friend Lord Carlisle of Bucklow, who made such a powerful contribution in the earlier stages of the Committee, asked me to apologise on his behalf to the Committee for his inability to be present. I dare say that his absence has been appreciated more by the noble Lord who replied because he would have had to face another extraordinarily vocal and experienced critic. I thank the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Thomas of Gresford, both practitioners with long experience in the criminal courts, and the noble Lord, Lord Harris of Greenwich, who I left out from my earlier litany of former chairmen of the Parole Board. He held that office as my immediate predecessor.

We have heard tonight the speech of a skilled advocate making the best of an extremely difficult task. We appreciate and enjoy the way in which he did it. He asked whether this was an amendment based on principled objection or whether it was simply an opportunity to embarrass the Government and indeed to embarrass him, although he did not put it quite in those terms. Why did we select paragraph (d) out of the list of eight offences which trigger a mandatory life sentence on second conviction? We selected it for the same reason that he selected it when he spoke just a

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year ago. It is the strongest example of the inappropriateness of this particular section of our criminal law. That is why it was chosen.

In my opening speech I made it abundantly clear that I am totally and absolutely opposed to the entire section. I believe that it was wrong; and that it was the most serious mistake that has been made in our criminal justice system for many years. I shall continue to do everything I can to undermine it. The experience shared with others in this House as regards the mandatory life sentence for murder--another subject for another day--is that the progress made over the past two decades has been inch by inch, bit by bit. The edifice has been eroded until there is only the last plank left. Some of that has been achieved in the courts and some in Parliament. A large part has been the result of decisions by the European Court of Human Rights. That is how changes are made in our criminal law.

I did not expect the noble Lord to say this evening, "I still stick to what I said before and I have persuaded my good friends now". I did not expect to carry this amendment. It may be that we could do so, but I do not propose to call a Division. It is to call attention to the irrationality and deep injustice of mandatory sentencing that I have selected this particular example for debate tonight. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.15 p.m.

Clause 70 [Extended sentences for sex and violent offenders]:

Lord Mackay of Drumadoon moved Amendment No. 218B:

Page 55, line 32, leave out from ("court") to ("and") in line 33 and insert ("considers appropriate taking into account--
(i) the seriousness of the offence, or of the offence combined with other offences associated with it, and
(ii) any previous conviction of the offender;").

The noble and learned Lord said: This is a probing amendment directed at the provisions of Clause 70 of the Bill. It seeks to explore, if it can, one aspect of government policy that lies behind this clause, and in particular to explore how the Government propose that the courts should take account of the need to protect members of the public when exercising the new sentencing powers that the clause will give them.

It is my understanding from the discussions that took place earlier today in relation to the corresponding English provision that it is intended that this new provision should deal with serious offenders; namely, those who have been convicted on indictment of either sexual or violent offences.

When this Bill was debated at Second Reading very little was said in any of the speeches about these clauses and about their English equivalents. The noble Lord, Lord Williams of Mostyn, described the clauses as extending the supervision of offenders, but they go somewhat further than that in making those who are subject to them the subject of the full rigours of the

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licence system. In particular it affords the opportunity to the courts to impose periods of licence far in excess of the custodial term of the sentence concerned. I stand to be corrected if I am wrong, but as far as I am aware the reasoning behind the new provisions has not been explained in any consultation document or in any other statement of government policy on the matter.

As regards protecting the public at the present time, that can arise in two instances. First, when one is dealing with a determinate sentence it is possible for the court to take into account the need to protect the public as well as the need to punish the offender. The need to protect the public can be taken into account in determining the length of sentence. That is one of the factors that goes into the total sentence.

Secondly, another area in which the issue arises is in deciding whether or not to impose a discretionary life sentence. The fact that an accused is established to be a danger to the public can clearly be a justification for exercising such an option, which is open in every case where the maximum sentence is life imprisonment. If the latter option is exercised by the court, then in fixing the relevant part the judge is directed by statute to leave out of account the issue of protecting the public. In fixing the relevant part all the judge takes account of is the seriousness of the offence and any previous conviction of the accused. That is how the relevant part is fixed. Therefore--to use the word that we heard a moment ago--there is a dichotomy between the approach following the determinate sentence, namely, taking it into account, and in life sentences leaving it out of account.

I seek to explore the provisions of the new Section 210A(2)(b). If the court chooses to follow that route it is charged with imposing a further period; namely, the extension period, for which the offender can be subject to a licence and which is, subject to the provisions of this section,

    "of such length as the court considers necessary for the protection of the public from serious harm".

In other words, it is the fixing of the extension period and the need to protect the public for a particular period that is very much before the court. But in fixing the custodial sentence the court is charged with imposing the term of imprisonment which it would have passed on the offender otherwise than under this section. In other words, the need to protect the public is taken into account in that matter as well. That is in contra-distinction to the approach which is followed in setting the relevant part in a discretionary life sentence.

When my noble friend Lord Windlesham discussed an earlier amendment he spoke of the English equivalent provision falling into two parts; namely, the custodial part, which was the penal element, and the extended part, which was intended to prevent the commission of further offences. I assume that the noble and learned Lord the Lord Advocate will reply. Was my noble friend Lord Windlesham correct in drawing a distinction in those terms? Alternatively, as I suggest, is the natural construction of the clause as presently framed that it is the Government's policy that if there is held to be a need to protect the public from serious harm from the

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offender on his release that is one factor which should be taken into account in the custodial term and in fixing the extension period? I beg to move.

The Lord Advocate (Lord Hardie): The amendment as framed would have the unintended effect of limiting judicial discretion by restricting the range of facts which the sentencing judge would be entitled to take into account in deciding the appropriate length of the custodial element of the sentence. For that reason, the amendment is unacceptable to the Government.

Having said that, I appreciate the fact that, as the noble and learned Lord said, this is a probing amendment. To answer the question shortly, it is our position that the sentencing judge would take into account the question of protection of the public at both stages, so that in deciding the appropriate custodial element of the sentence, the judge would take into account the same factors as he or she would take into account, apart from this provision. As the noble and learned Lord properly observed, the protection of the public is a proper consideration in determining the length of a custodial sentence.

However, this provision goes further. Having decided on the appropriate length of the custodial sentence which the court would otherwise have imposed but for this provision, the court also has to consider whether it would be appropriate to have a further period, the extended period, during which the accused or convicted person would be on licence. That period is not to be seen as an additional prison sentence, but as a period on licence when the accused will, we hope, have the support of the appropriate authorities and be under supervision. Obviously, if he or she breached the terms of the licence, he or she would be returned to prison.

I hope that that assists the noble and learned Lord in understanding the thinking behind the provision. In short, the Government do not intend that any different criteria would apply in determining the appropriate length of custodial sentence.

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