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Lord Mayhew of Twysden: I suggest that the noble Lord's point would be covered by the provision in the amendment which allows the Court of Appeal to grant leave. That leave does not have to be given at the beginning or before the appeal is heard, it can perfectly well be given if a point arises in the course of the hearing, as is quite often done.

As my noble friend Lord Hunt said, the legislation which reached the statute book in 1995 was a great advance. However, it appears to be blemished by an undue liberality which permits any ground of appeal to be advanced in addition to those authorised by the tribunal itself.

The case for the provision virtually makes itself, so I shall not spoil it by continuing. I rose simply because that last point raised by the noble Lord on the Liberal Democratic Benches can be met by the well-established right of the Court of Appeal to grant leave even during the course of a hearing.

Baroness Scotland of Asthal: I thank the noble Lord, Lord Hunt, for raising the issue. I assure him that I am aware that the senior members of the judiciary in the Court of Appeal are concerned that cases referred by the Criminal Cases Review Commission, in which appellants bring forward additional grounds not given by the commission in its reference to the court, can delay the work of the court. I understand that that can occur particularly when appellants represent themselves. I am very happy that the noble Lord has given us such an exhaustive exposition of when this can occur.

However, we must put the matter within its contextual history when considering the amendment. Noble Lords will wish to take into account the background to the present law and to bear in mind that what the noble Lord suggests in fact returns us to a position which prevailed prior to the 1984 case of Regina v Chard and to the legislation current at that time, which was the 1907 legislation.

Section 19 of the Criminal Appeal Act 1907 empowered the Secretary of Sate to refer whole cases to the Court of Appeal. In the case of Caborn-Waterfield in 1956, the Court of Appeal (Criminal Division) held that the grounds for the court to consider were those made only in the reference of the Secretary of State. The wording of Section 19(a) of the 1907 Act was subsequently amended and in 1984 the House of Lords, in R v Chard, held that a reference to the Court of Appeal under Section 17(1)(a) of the 1968 Act was a reference of the case in its entirety, and that the court could not restrict its consideration to the ground referred by the Secretary of State. When the law was reviewed by the Royal Commission on Criminal Procedure, it recommended that although the power to refer cases to the Court of Appeal should be transferred to an independent authority, it should continue to be open to the appellant to raise before the Court of Appeal any matter of law or fact, or mixed

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law and fact, as he or she wished, regardless of whether it was included in the papers sent to the court by the authority.

We all know how important are the cases referred to the Court of Appeal under that rubric, and the importance of allowing a full, open and transparent hearing. The then government—I, too, applaud the government of the day—accepted the Royal Commission recommendations. Section 14(5) of the Criminal Appeal Act 1995 provides that in the case of CCRC reference, the appeal may be on any ground relating to the conviction, verdict, finding or sentence,

    "whether or not the ground is related to any reason given by the Commission for making the reference".

That is right.

The amendment therefore runs counter to the clear intention of the 1995 Act and would reverse the House of Lords opinion in Chard and move in the direction of the earlier 1956 judgment in Caborn-Waterfield. That would be a retrograde step. It would change the nature of a CCRC reference to the Court of Appeal by limiting the present rights of the appellant in respect of such references. Although we recognise that the effect of the present law may in some cases cause practical difficulties in the operation of the Court of Appeal, the Government do not believe that it would be right to contemplate any change to the rights of appellants in CCRC reference cases.

Therefore, although we understand the sentiments expressed by the noble Lord, Lord Thomas of Gresford, on this occasion I can give the noble Lord, Lord Hunt, no comfort.

Lord Hunt of Wirral: I am grateful to the Minister for her response. I can well understand and sympathise with the words of the noble Lord, Lord Thomas of Gresford, I share the view of my noble and learned friend Lord Mayhew of Twysden that the answer to the noble Lord lies in seeking leave for those grounds to be added to the grounds of appeal.

I am grateful to the Minister for her applause for my noble friend Lady Blatch and for the government of which I was a member in proposing the legislation. Although the Minister explained that she believed that the amendment would have retrograde effect, I am still troubled when there is such clear demand from such senior judges for an amendment more or less in the terms of this one. However, I now want time to reflect on the points that the Minister made and to discuss them with those who initially wanted the subject aired and the amendment tabled. Reserving the right to return to the issue later, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Wirral moved Amendment No. 122:

    Before Clause 81, insert the following new clause—

"Court of Appeal: Attorney General's power to refer unduly lenient sentences

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In section 35(3) of the Criminal Justice Act 1988 (c. 33) (scope of Part IV) after paragraph (b)(ii) there is inserted—
"; or
(iii) for an offence under section 9 of the Theft Act 1968 (c. 60) (burglary)"."

The noble Lord said: This amendment would put sentences imposed for the offences of burglary within the scope of the power given to the Attorney-General by the Criminal Justice Act 1988 to refer unduly lenient sentences to the Court of Appeal.

Under the 1988 Act, the Attorney-General may refer to the Court of Appeal sentences appearing to him to be unduly lenient that have been passed in respect of all offences triable only on indictment, such as manslaughter, rape and robbery, and sentences passed for certain "either way" offences specified by order of the Secretary of State. Offences that have been so specified include indecent assault, serious fraud and certain smuggling and drugs offences. Although aggravated burglary—where a weapon is used—is already within the scope of the power to refer, as it is an indictable-only offence, the basic offence of burglary is not.

Sentences for burglary have been much in the news recently, particularly over the past couple of months, since the guideline judgment of the Court of Appeal in R v McInerney in December last year. There has been a huge amount of public comment. Your Lordships' Committee is not the appropriate forum for me to advance detailed criticism of the sentencing guidelines recently laid down in that case by the noble and learned Lord the Lord Chief Justice, so I shall resist any temptation to do so. However, it is beyond doubt that the public, particularly the victims of burglary, are deeply concerned about the sentences now being passed on burglars. A system of criminal justice, in particular the sentences handed down to those convicted of serious crimes, must command the confidence of the public to be able to operate effectively.

The noble and learned Lord the Attorney-General said in your Lordships' House as recently as 21st January that public confidence in the system is one of the factors that he considers when he decides whether or not to exercise his discretion to refer unduly lenient sentences to the Court of Appeal. It is worth quoting him:

    "There are also occasions where the Law Officers will think it appropriate to ask the Court of Appeal senior judges to consider whether any adjustment to the guidelines is appropriate. That would be for the guidance of all sentencing judges and to increase public confidence in the system".—[Official Report, 21/1/03; col. 552.]

I agree. Amendment No. 122 is important not only because it would give the Attorney-General the right to bring a reference to the Court of Appeal to ask for the guidelines given in R v McInerney to be revised, should the noble and learned Lord or any of his successors wish to do so, but it would also allow the Attorney-General to refer unduly lenient sentences imposed even under the present system.

Many Committee Members will have seen the reports of the confusion generated following the recent judgment of the Court of Appeal. That confusion

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exists among the judiciary as well as the public. The noble and learned Lord the Lord Chief Justice had to take the unusual—I think that it is almost unprecedented—step of issuing not one, but two, statements seeking to clarify the Court of Appeal's judgment. One was contained in a letter to judges and magistrates on 23rd December; the other was made in open court on 14th January. The Lord Chief Justice said in the latter statement that,

    "the judgment is not a charter to offenders to commit burglary".

However, following the judgment, there have been a number of high-profile cases in which community sentences have been imposed on offenders who could previously have expected to receive a lengthy prison sentence. I believe that there is, therefore, still confusion about the application of the new guidelines, not only among the public but also on the part of some members of the judiciary. As the Minister will understand, the amendment would go some way towards remedying the situation. If trial judges have been confused by the coverage of the Court of Appeal's judgment and are passing sentences that are unduly lenient—even under the new guidelines—the Attorney-General will be able to take swift action to bring such cases before the Court of Appeal. As I said, it would also be open to the Attorney-General, should he consider it appropriate, to argue in such cases that the McInerney guidelines should be revised.

Noble Lords on the Benches opposite will, no doubt, remember their party's 1997 manifesto, in which the Government promised that the Attorney-General's power to appeal unduly lenient sentences would be extended. Noble Lords will remember the debates on the Crime (Sentences) Bill in 1997. On 13th January, 1997, in another place, the then shadow Home Secretary, Jack Straw, moved an amendment to that Bill that would have extended the Attorney-General's power to appeal unduly lenient sentences to include any sentence passed by the Crown Court for any offence. I shall not take much time, as we do not have much this evening, but I refer the Minister to col. 80 of the Official Report for another place, where she will find the words of Jack Straw in that debate.

The Committee may recall that a similar amendment was moved in this House by the noble and learned Lord, Lord Williams of Mostyn, on 13th February, 1997. The noble and learned Lord said:

    "One is dealing with the protection of the public. There are undoubtedly some sentences which are over-lenient and which fall into the category of offences triable either way".—[Official Report, 13/2/97; col. 408.]

That is the background to our debate tonight. After May, 1997, the new Government did not implement the policy that they had advocated in March, 1997, despite the elevation to office of Mr Straw and the noble and learned Lord, Lord Williams of Mostyn. They made some further extension to the powers of the Attorney-General in the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2000. The amendment would achieve what the Government were committed to—at least, in the spring of 1997.

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I agree that the amendment is focused on burglary. As the Committee is aware, there is especial public concern about the sentences that are being passed on burglars. In all the circumstances that I have outlined, the correction of unduly lenient sentences is vital, if we are to maintain public confidence in the system of criminal justice. I beg to move.

8.30 p.m.

Lord Thomas of Gresford: The noble Lord referred to the sentencing guidelines that were issued in December. They were not issued in a vacuum; they were issued after consultation between the Lord Chief Justice and the Sentencing Guidelines Council—or whatever its name is these days. We were also told in January that they were issued after consultation with the noble and learned Lord the Lord Chancellor and the Home Secretary.

The Committee will recall that, when the Lord Chief Justice was attacked in the tabloid press for what he had sensibly said about the effect of community sentences, the noble and learned Lord the Lord Chancellor stepped in behind him and supported what he had said, in accordance with the agreement that had, apparently, been reached. It was, therefore, surprising to find that the Home Secretary did not do the same. Having heard the furore over the comments made by the Lord Chief Justice and the noble and learned Lord the Lord Chancellor, the Home Secretary took a different course and broke what we had been told in January was the consensus between the three people to whom I referred.

If public confidence is to be restored in community sentencing, it is not to be restored by a measure such as this. Why should the Attorney-General take 70,000 or 80,000 burglary offences under his wing—it is by far the largest tranche of cases which go to the Crown Court—and start going to the Court of Appeal to complain about their leniency when the Court of Appeal in the shape of the Lord Chief Justice has already indicated that we should look at the guidelines for sentencing in simple burglary cases once again? I do not believe that any Attorney-General responsibly would do that. I see no point in the amendment and I oppose it.

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