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Lord McCluskey: Perhaps I may deal briefly with the technical matters. The noble Lord, Lord Macaulay, states that it may be difficult to predict when a case is likely to end. If we refer to solemn procedure, and cases which are in court, generally speaking the prosecution knows some little time in advance when there will be a plea of guilty, and sometimes the court is informed, too. It is perfectly possible to invite the victim to telephone in and to receive a message on an answerphone. That is now done, for example, with prospective jurors who are invited to telephone a specific number and receive an answer. It is perfectly possible to produce such a system.

In those cases which go to trial, the problem is more easily solved. If a case goes to trial, one will have a speech by the prosecution, a speech or speeches for the defence and a charge by the judge. That process in most cases is likely to take a day or two. Accordingly, it cannot be difficult either to intimate the necessary information directly to the victim, or to do so by the means to which I have referred.

I am not entirely happy with Amendment No. 131 in the name of the noble Earl. If the prosecutor were obliged to inform the victim of the progress of the case and dates of the outcome of the case, one is talking about a massive increase in work for the prosecutor and a massive increase of paperwork. I do not believe that that is a step to be taken early on. As I suggested, we should proceed step by step.

I agree with the noble and learned Lord that the victim sometimes has no idea of the progress of the case. That is part of my point. In order to minimise the burden upon the prosecutor we should introduce into my amendment the phrase, "so far as is reasonably practical", or some such words.

The noble and learned Lord has drawn attention to the fact that the police have and exercise certain responsibilities in the matter. Local authorities have and exercise certain responsibilities in relation to victims. That is right and proper. The noble Earl drew attention on various occasions to the contribution by the voluntary sector. That is entirely laudable. However, my additional point is this. It is not enough for the criminal justice system to leave the issue to local authorities, the police and volunteers. The criminal justice system must accept its responsibility direct to the victim. I urge the Government to bear those considerations in mind in

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their thinking on this matter in relation to the Bill or any subsequent measure. With those observations, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.15 p.m.

On Question, Whether Clause 28 shall stand part of the Bill?

Lord McCluskey: Clause 28 is yet another of the group of clauses which I fear is entirely unnecessary. Clause 28 empowers the court to pronounce an opinion on the sentence or disposal order which is appropriate in any similar case. The court undoubtedly has that power now. It has no doubt about the matter, although I speak for myself and not on this or any other occasions for other judges. It uses that power. I could give the Committee instance after instance in which a court has exercised that power and commented on that type of case. Indeed, if the Committee will consider the report of the McKenzie case—I referred to it earlier—the court went to the unusual length of suggesting to me before I passed sentence what might be an appropriate sentence. That is a special case, but there are many cases in which, when commenting on an allegation that a sentence was excessive, the court has said, "Far from being excessive, we would always expect the judge to impose a sentence of at least this length or even greater in similar cases". The result is that it is unnecessary to have the clause in the Bill.

I shall repeat the arguments as briefly as I can. The paragraphs in the Renton report which deal with this issue —they are referred to at col. 303 in the Committee proceedings reported in Hansard of 12th January 1995—indicate that it is quite wrong to legislate unnecessarily. This is an example of unnecessary legislation.

In my opinion it is also quite wrong to make unnecessary inroads into the exercise of judicial discretion for reasons with which I dealt earlier. That is particularly true in relation to the day-to-day details of how judges should deliver their opinions. This is Parliament saying to the judiciary, "Please put this in your opinion". It is a hint. We do not need hints from Parliament as to what to put in our opinions. I feel a certain distaste for Parliament nudge-nudging and wink-winking in the direction of the judiciary in such matters. It is bad practice. It is unnecessary. It is slightly vulgar (if I may use that word in current context). It changes absolutely nothing and I should like to know why the Ministers propose the clause. I oppose the Question whether the clause shall stand part of the Bill.

Lord Macaulay of Bragar: I support the observations of the noble and learned Lord in opposing the Question that Clause 28 stand part of the Bill. I do not have the experience of the noble and learned Lord; but it seems to me that the side note seems to be entirely misleading. For whatever reason it refers to "sentencing guidelines". A guideline tells someone where to go and how to get there. The amendment would lead to casual indications being given to the lower courts from the higher courts as to what they should or should not do in specific cases. It is presumably meant to fetter the

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discretion of the lower courts and to say to the lower courts, "We have said that you must not go beyond what we have stated".

As referred to on a prior occasion, the courts in England have tried guidelines. One or two judges have had the courage in local situations to say, "If it were open to me to do what I consider appropriate in the public interest in this locality, I would give you X-number of years. But if I do so, I shall be overturned by the Court of Appeal and there is no point in my giving you the sentence that I consider appropriate". That has a double effect: a beneficial effect on the accused; and perhaps a detrimental effect on the victim who does not see the perpetrator of violence against him or her receiving what the court regards as an appropriate penalty.

If the judge ignores the opinion of the higher court—the provision is not a guideline; it is merely an indication—what effect would that have? There is no indication in this amendment to indicate what the guidelines are. Perhaps, like some other amendments to the Bill, this has come too soon. It might be appropriate if some research were done into the consistency of sentences. It is a theme which runs right through the Bill. If sentencing guidelines are to be set up, then let us have a structure—for example, a sentencing guidelines council involving lay people. We go back to the victim impact statement, the involvement of juries in sentencing. Here we come to another element and perhaps we may examine it and ask whether it is right that there should be a body which, from the top, says: "This is the way we think it should be done in cases which fit into the structure". But the thing about structures, like rules, is that there must be exceptions and I am loath to support any clause which fetters the discretion of the judge.

Perhaps the judge in the law court in the local community should have more flexibility than—saving the presence of the noble and learned Lord, Lord McCluskey—the higher courts. It is the lower courts that have to deal with the realities of local life and impose a sentence which sends a message to the local thugs, hooligans and thieves that the local court will not put up with their nonsense any more. Those courts are not interested in what the Court of Appeal in Edinburgh may think. I support the noble and learned Lord, Lord McCluskey.

Lord Fraser of Carmyllie: On a number of occasions in the course of this Committee stage, the noble and learned Lord, Lord McCluskey, has addressed the argument that it is only appropriate in legislation to look to a mischief and seek to remedy it. Without getting engaged in an elaborate debate with him, I would extend that somewhat and say that it is appropriate enough for Parliament from time to time not just to address directly a mischief, but, where it has a view that it would be helpful to give encouragement to a particular approach, Parliament should do so.

I entirely accept the noble and learned Lord's view that at present if the Court of Appeal in Scotland wishes to set out a series of guideline judgments on sentences,

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it could do that. However, I believe that it is right that on the face of the Bill we should do no more than suggest to the courts that such an approach is desirable. It is in no sense a direction to them. With respect, I do not agree that what is being proposed is in any sense an inroad into a proper judicial discretion.

I have little doubt that those judges in the High Court who regularly conduct or preside over trials will have little cause to rely on sentencing guidelines. But possibly more important and a perspective that has not yet been clearly identified is that those who operate in the inferior courts would welcome more widely than the Court of Appeal seems to appreciate just that guidance from the Appeal Court. When we went out to consultation on that, 21 district courts responded to the consultation paper on sentencing and appeals. Of the 21 who responded, 13 supported sentencing guidelines and eight did not.

Other respondents who supported guidelines include victims' groups, two of the three police associations, the Scottish Law Commission, the Faculty of Advocates and a significant number of legal academics. In that context, I am aware of the proper desire of the noble and learned Lord to ensure that the statute book is not unnecessarily encumbered with clauses that add little to the law. However, I feel quite strongly that the perspective that he ought to take in regard to the matter is not that of a superior judge in Scotland but rather that of an inferior judge in Scotland. All the indications are that they would welcome a more vigorous and developed policy on guidelines than is now the case.

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