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Lord Donaldson of Lymington: The basic point is that there should be no area of criminal justice which the public feel is important but where some sentences are too lenient without there being some remedy. I do not criticise the Lord Chief Justice in any way—I am not in a position to do so. I am not interested in the furore which arose in relation to burglary. However, it might well be that the controversy could be stilled if the Attorney-General had the right to refer a sentence to the Court of Criminal Appeal while indicating that in general he thought community sentences were the right answer. One can easily pick a case in which it is absurd, but one can say, "This is a unique example and the general rule is different".

Burglary affects enormous numbers of people. In so far as it was suggested by anyone that it was a trivial offence or did not worry householders, that is plainly

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contrary to all common sense and experience. However, it does not mean that the power of the Attorney-General is necessarily needed for too lenient sentences. That is the trigger, but it might be used in a different way in order to support a general run of guidelines which could be justified. Coming from that quarter, the public might be more reassured than they are at present.

Lord Mayhew of Twysden: I half feel that I ought to declare an interest as when in 1988 I was Attorney-General I introduced the measure against a certain amount of principled opposition. However, that opposition has subsequently disappeared. The way in which successive Attorneys have used the power—sparingly but with discrimination—has attracted approval.

A month or so ago, I went with the necessary care into the pronouncements of the Lord Chief Justice and I, too, found nothing to criticise in what he said. I did not think that his comments were a charter for burglars, or an indication to the judiciary that they should sentence every burglar to a community service order, save for the most heinous of the lot. I thought that ultimately it stood the test of realistic and practical examination.

However, I am afraid that the whole episode gave rise to some confusion. As my noble friend Lord Hunt said, there were one or two high profile cases in which the court indicated that normally it would have imposed a custodial sentence but by reason of recent pronouncements felt constrained to order a community service order.

I respectfully agree with what has been said by the noble and learned Lord, Lord Donaldson, that it by no means would follow from the amendment being carried that the norm should be tougher than that at present established—whatever the norm is. However, I believe that there is no serious case for opposing adding burglary to the raft of cases which come within the discretionary powers of the Attorney-General—for reasons given by the noble and learned Lord, Lord Donaldson, among others. I think that they would be exercised with the same degree of discrimination, as well as equally sparingly, as has been the rule over the past few years.

I hope very much that the Government will accept the amendment. It would restore confidence and to the extent that there may be residual confusion enable that to be corrected in a proper case.

Baroness Seccombe: Having listened to professionally qualified speakers, I wish to add a comment. In my capacity as a magistrate up to the year 2000, during training I was told that a magistrate's sentencing powers were not sufficient and that every case of burglary should go to the Crown Court because the sentence should start at nine months. When one has been trained in that way, to hear something quite to the contrary has added to the confusion, not only for magistrates but also for the public.

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People see burglary as an act of violence. We should not forget that some people, in particular the elderly, never get over it and cannot live alone again.

Baroness Scotland of Asthal: In response to the comments made by the noble Baroness, Lady Seccombe, can I say straightaway that we understand absolutely that people do not recover from certain kinds of burglaries. Burglary is a terrible offence. However, the difficulty arises because the crime covers a broad spectrum, from the person who puts their hand through a window to steal a bottle of milk—technically that is a burglary—to acts of real violence at the other end of the spectrum, involving direct assault on an individual in their own home. Both are crimes of burglary, although they are different in nature and we would differ in our response in terms of sentencing. I take the point on board.

The noble and learned Lord, Lord Mayhew, with his usual wisdom, was right to comment on the content of the advice given by the Lord Chief Justice in relation to the guidelines. If one takes the trouble to read them—it is obvious that the noble and learned Lord has done so—they are clear and perfectly sound. Indeed, the noble and learned Lord very ably made that point. It is regrettable that there has been so much ill-informed comment and misunderstanding about them.

However, we have to look at what is already in place. We believe that it would be unnecessary to accept the amendment. Perhaps I may take a few moments to explain why. The Home Secretary already has powers to extend by order under Section 35(4) of the Criminal Justice Act 1988 the range of triable either way offences where unduly lenient sentences can be referred by the Attorney-General to the Court of Appeal. Furthermore, we see no need to add burglary offences to the Attorney-General's powers. As has already been mentioned, while there has been much discussion about sentencing and burglars, we have no reason to believe that the courts are not imposing appropriate sentences or that the assertion that they are being unduly lenient is true.

Any appeals against sentences are more likely to be for burglaries that involve acts of violence or another serious offence. Those burglaries are likely to be triable only on indictment and therefore already can be referred to the Court of Appeal by the Attorney-General if he considers the sentence unduly lenient.

If we want to ensure that burglars are sentenced appropriately, then we should ensure that the courts are clear on what the Government expect to see. The sentencing guidelines will assist in that. But we must place our faith in sentencers to get sentencing right. After all, we know that they are the individuals who hear the full facts of a case and are therefore best placed to make the judgment. Perhaps noble Lords have shared my experience when sometimes reading a report of a court case about which I know a little. I can see no relation between what I know and the report which appears in the newspapers. We must be a little cautious because the case may not always be as it appears.

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Adding burglary to the Attorney-General's powers could send out an unwelcome message that we believe that the courts are getting it wrong. I have yet to see any evidence of this from anything that noble Lords have said or from elsewhere. Throughout the recent controversy over sentences for the offence of burglary following the Lord Chief Justice's guidelines of 19th December, in which community sentences were recommended as a starting point for first and second time non-serious burglary cases, the Government have stressed the seriousness of the offence.

There may be cases of first and, more exceptionally, second time minor burglaries that can be dealt with adequately by community sentences but, as a norm, as the noble Baroness, Lady Seccombe, made plain, burglary is the kind of offence that would attract a custodial sentence.

The Government welcome the Lord Chief Justice's clarification regarding the issue of repeat offenders in his statement of 14th January. In that statement, as your Lordships know, he stressed that the court had emphasised at the outset of the judgment that, in applying the guidance, it was necessary to have regard to the particular circumstances of the offence, its effect upon the victim and the record of the offender, not only in other cases of domestic burglary but generally.

The Attorney-General's powers to refer unduly lenient sentences are personal. Therefore, if we were to add burglary to the Attorney-General's powers, this would place an additional burden on already stretched services. In 2001, the most recent year for which figures are available, 7,942 offenders were found guilty of domestic burglary. While that is not in itself a reason not to amend the legislation, it is an important factor that the Government will wish to take into account.

In addition, were burglary to be added to the Attorney-General's powers of reference, we believe that there would be calls to add other offences, such as theft, which would make the burden on the Attorney-General unmanageable. He can properly deal with the more serious burglaries at the moment; the others remain outside his remit. I invite the noble Lord to withdraw the amendment, given the assurance that these issues are covered already.

8.45 p.m.

Lord Hunt of Wirral: I am confused by the Minister's argument. On the one hand, she has stated very clearly that she believes the problem is already adequately covered; but, on the other hand, she has stated that the amendment would send an unwelcome message that the courts are getting it wrong. In trying to reconcile that conflict, I am guided by my noble and learned friend Lord Mayhew. He explained that when he introduced the legislation some years ago there was a considerable furore in the press along the lines that we were stating clearly that the courts were getting it wrong. There was an echo of that in the press comment at the time and that it was a way of rectifying injustice. I do not believe that that was the case then, nor do I believe that the amendment would send out that unwelcome message now.

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I am grateful to the noble Lord, Lord Thomas of Gresford, for setting out very clearly his position on the amendment, although he did give credence to some of the comments I made about the confusion that exists and the importance of public confidence. My noble friend Lady Seccombe gave some useful background and reminded us that burglary is an act of violence.

Both before and during the debate I read the statement made by the Lord Chief Justice in McInerney and Keating that the offence of burglary, even the basic standard offence, involved trauma to the victim. My noble friend Lady Seccombe is quite right to stress the importance of the offence in terms of the effect that it has on the victim. That is clearly the case.

We were greatly assisted by the noble and learned Lord, Lord Donaldson, who, once again, quite rightly reminded us of the need for public confidence in the whole system and to see this issue against the general run of guidelines.

I believe that the noble and learned Lord the Attorney-General would not misuse this power. It is a case of trusting him to exercise it—as my noble and learned friend Lord Mayhew of Twysden put it—sparingly and with discrimination. That is the context in which I have proposed the amendment.

The Minister stated that burglary is a terrible offence. She rightly reminded us that it can have a wide range. There is no one who feels that the guidelines announced were sufficiently clear at the outset; nor indeed that they received the general public confidence. One has only to look at the words of David Blunkett, the Home Secretary, about the need for clarification—and the clarification was then welcomed. But surely it is better to have this power on the statute book, without any doubt about its application, and to trust the noble and learned Lord the Attorney-General to exercise the power sparingly and with discrimination. I regret that I did not find the Minister's explanation satisfactory. I should like to test the opinion of the Committee.

8.51 p.m.

On Question, Whether the said amendment (No. 122) shall be agreed to?

Their Lordships divided: Contents, 38; Not-Contents, 68.

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