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The Earl of Harrowby: I hope that the Committee will forgive an Englishman for intruding in the debate. I believe that I am the second Englishman to have done

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so. The noble and learned Lord's proposal worries me. First, it seems to me that under the proposal, or part of it, emotion can enter into the sentencing decision, as it may with laymen, whereas it is not supposed to with judges. If the proposal centres on advice from a jury in a particular case, that advice is bound to be tainted by emotion and that cannot be right.

If, on the other hand—I believe the noble and learned Lord referred to this during his exposition—judges can take advice from juries on a panel in a later study conference, that is unobjectionable, and might be of value. One other aspect of the proposal which has not been mentioned is that at present to send someone to prison requires two parties: the jury to bring in a verdict, and the judge to pass sentence. Under the proposal we are converting the future of the man in the dock to the decision of a unified party. There is a conflict in our system of jurisprudence that has always countered that and forbidden it. I should be loath to see that two-party decision cancelled.

6.30 p.m.

Lord Fraser of Carmyllie: My noble friend Lady Carnegy was right in saying that there is a great yearning among judges to discover whether the priorities that they set in sentencing and the severity that they attach to some offences are shared by the public. They are suspicious that the views expressed by sensationalist leader writers may not properly reflect the views of the public as a whole. I understand their desire to meet as fully as possible the views of the society in which they live.

I share the view expressed on both sides of the Committee that the model which the noble and learned Lord brings forward—that is, introducing the jury into sentencing—is, to say the least, difficult. The jury has an important role in our legal proceedings but the issue of sentencing is very different. As has been indicated, I suspect that juries would not welcome such a role and would want the judge to give them the clearest possible indication of what they might recommend. If that is the case, there would be little point in asking them to take part; they would merely be looking for a clear steer from the judge as to what he thought appropriate beyond merely explaining the range of sentence that would be available to them.

During the debate on a previous amendment, the noble and learned Lord pointed out that, in these matters, the devil is in the detail and it seems to me that the devil is in this particular detail. In Scotland, the verdict of the jury can be returned by a majority, even of eight to seven. If in the High Court the jury were asked to return a verdict, one could conclude that the logical view of the seven who voted not guilty was that the convicted person ought to be admonished or given the minimum sentence. Presumably, those jurors would continue to hold to the view that the accused did not do what he was convicted of by the majority. I suppose that a large number of jurors would be sufficiently sophisticated to detach themselves from their view on

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guilt or innocence and offer a view of what the broad public might think. However, I suspect that that would be extremely difficult for them.

I agree with the noble and learned Lord that sometimes the sentencing philosophy is difficult to discern and that in many circumstances it is not as openly discussed as it might be. It would be interesting by one research route or another to attempt to discover exactly what those who have been in our courts think of sentencing. However, given the provisions of the Contempt of Court Act, that has its own difficulties.

We need to approach the matter with care and in some detail. It appears to me as regards the cases in respect of which judges are criticised in public for the sentences that they have imposed—they are seen as too lenient or too severe —that the detail of the reasoning behind the sentences is imperfect. Many factors that influence a judge are not brought before the public and therefore they are not allowed to reach a full understanding.

The noble and learned Lord introduced the debate in order to air his consistently held views. Clearly, a great deal of interest has been excited but I believe that thus far the noble and learned Lord has not secured a great deal of support. However, there is general agreement that it would be useful if the public's views of the sentencing approach of judges were better understood.

Lord McCluskey: Perhaps I may deal with one or two points before responding to the final summary of the noble and learned Lord, Lord Fraser of Carmyllie. The noble Baroness, Lady Carnegy, mentioned the possibility that the jury might influence the judge. That is not the danger of the system; it is the point of the system. Perhaps I misunderstood what was said.

Baroness Carnegy of Lour: That is what I saw as a problem. I said that if the victim believed that the jury had influenced the judge the wrong way there would be trouble with the victim's family. If the jury believed that the judge had not paid attention to it, it would be disillusioned with the system and would be cross with the judge. I was not suggesting that the jury must not influence the judge—surely, that is the object of the exercise.

Lord McCluskey: I regret that I misunderstood the noble Baroness. Perhaps I may deal with the points raised by the noble Baroness and by the noble Lord, Lord Elton. Once the judge decides to impose a sentence of three years or more, under my system the next responsibility falls upon the judge to say what it will be. It could be five, six, seven or even eight years. He specifies the range of sentencing that he has in mind. He then invites the jury to decide within that range. Subsection (2) of the proposed new clause prohibits the jury from going outwith that range, thus avoiding a perverse result. It states:


    "it shall not be competent for the jury to make a recommendation of a period falling outside that range".

The judge will specify a range which is not, one hopes, perverse.

I do not speak for other judges but wish to set out my personal experience. I attend a trial and preside over it. I wait until the jury returns a verdict and am then given a

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copy of the accused's convictions. The advocate depute addresses me and I must then ponder the matter of sentence. Sometimes I do so at once, sometimes I sit on the bench for several minutes and reflect and occasionally I retire to consider the matter. I have even retired overnight.

Sentencing is not an exact science and I think about whether it is a four or five-year case. No computer can tell me that and I am feeling for some assistance within that limited range. I do not doubt that some other judges experience such difficulty. If they do not, my judgment is that they are not as good judges as they might be because the task is shrouded in difficulty.

It is not an astonishing and novel idea, in particular in Scotland, that lay people should play an important role in determining how cases are disposed of. Members of the Committee will recall passing the Social Work (Scotland) Act 1968, which came into force in 1971 and under which children's panels were constituted. Those panels consist of three lay people who determine the issues in relation to young offenders. It is true that there is a separation between determining guilt and determining sentence, as referred to by the noble Earl. The children's panel system recognises that the sheriff determines guilt and the panel determines sentence. Three lay people determine sentence, though not in the ordinary sense of sending people to prison but of probation, supervision and so forth. Therefore, the idea is not entirely novel.

I am also anxious that unless we do something we shall run the risk of matters being taken out of our hands. That happened in the United States and there has been the substantial movement to which I have already referred. That is a movement to remove altogether from judges their discretion in relation to sentence. I believe that that is very bad. But if the public do not have confidence in what the judges are doing, that may happen.

The noble Earl referred to the clerk of a magistrates' court. That is a very different situation. In that situation a magistrate is commonly a lay person and the clerk of the court should be a qualified assessor. Therefore, he advises on what is competent. Because he is supposed to know what the statute allows, and because he is experienced, the magistrates may look to him for a hint as to what the sentence should be. That is rather different. One could not contemplate a clerk of the court in the High Court or the sheriff court giving the judge advice as to what should be the sentence.

The noble Lord, Lord Monkswell, used an expression which I never use; he referred to "ordinary people". He was trying to convey something which I also sense. I should rather find a different route for discovering what the public thinks—those people who are living in places where we do not go—from that which we have at present because I fear that politicians, judges even and people who agitate on behalf of the public are heavily influenced by what they read in the newspapers and see

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on the television. That is highly selective and tendentious, and I do not necessarily share the agenda of those who write in the newspapers.

The Earl of Balfour: Perhaps I may interrupt the noble and learned Lord. With regard to the expression "clerk of the court", I hope the Committee will forgive my ignorance but I thought that such a person was a qualified lawyer. It may be that there has been a misunderstanding in that regard. But I felt that if a jury were to be involved in the decision that the sentence should be, for example, five years, I assumed that there would be a legally qualified person to advise the jury from his experiences and that he would at least give a guideline in that respect.


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