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Noble Lords: Hear, hear!

Lord Cooke of Thorndon: My Lords, there can be no sharp constitutional boundaries between the legislature and the judiciary in evolving sentencing policy--only a delicate practical balance. If the Government of the day are able to persuade Parliament that a generally stricter regime is called for that must be their right no matter whether or not the change is likely to reduce the incidence of crime. And it will be the duty of the courts to heed any new legislative precepts. Wisdom is likely to dictate, however, that as the facts of individual cases are found to be infinitely variable when encountered in the reality of the coalface, some elasticity should always be left. The present White Paper, although envisaging an automatic life sentence for a second violent or sex offence, does allow for "genuinely exceptional circumstances". If the proposal is enacted much will indeed turn on the ambit of that potentially quite wide phrase.

The main difference between the proposal and the present law appears to be that what have been discretionary life sentences will become prima facie mandatory. Having read with profit the line of the recent English Court of Appeal decisions on discretionary life sentences, I suggest that no noble Lord who contemplates supporting the change should do so without having enjoyed the same advantage. A concise summary will be found in the work called Blackstone's Criminal Practice. Your Lordships will find that the courts have not shrunk from imposing life sentences where the public safety has clearly so demanded.

In one respect the existing statute may have unduly shackled the English courts. In imposing a minimum non-parole period linked with an indeterminate sentence, they have been limited to two-thirds of what would have been the appropriate finite term but for the need to protect the public further. That has been found to be an effect of Section 34 of the Criminal Justice Act 1991.

In one of my last New Zealand judgments, we upheld an indeterminate sentence of preventive detention, with a non-parole period of no less than 25 years, on a serial rapist. At the age of 37, he had committed shocking crimes, many of them of a violent sexual nature, over a 12-year period, against a total of 47 women and girls. And yet it was a tragic case. He had himself been a victim of continual sexual abuse as a child. But the demands and anxieties of the public had to influence the court significantly. It was easier, though, to endorse 25 years because the Act left open the opportunity for an individual member of the parole board to bring the case before the board at any earlier date. We drew attention to that possibility in our judgment.

Counsel for the prisoner commented publicly that the decision was fair because it left his client with at least a ray of hope. Perhaps always, my Lords, Parliament should leave a little room for the quality of mercy if it

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can be combined with public safety. May that age-old truth not be lost sight of when any legislation implementing the White Paper takes its final form.

3.37 p.m.

Lord Carlisle of Bucklow: My Lords, it falls to me to have the great pleasure of expressing on behalf of the whole House our delight and thanks to the noble and learned Lord, Lord Cooke of Thorndon, on his admirable maiden speech. He speaks with all the authority of a distinguished president of the Court of Appeal of New Zealand for many years and also with the distinguished past of being a visiting Fellow of All Souls. I know that we shall all look forward to hearing from him on other occasions.

As a member of the Bar, perhaps I may be permitted to echo the words of the noble Lord, Lord Lester of Herne Hill, in regard to the Lord Chief Justice. I believe that it is the view of the whole Bar that his contribution in his period of office has been enormous. He will be remembered with respect and gratitude by all those who appeared before him.

I share the concern expressed in relation to the proposals on sentencing contained in the White Paper. I believe that they are unjustified by argument, illogical and sadly ill thought through. I wish to devote the few moments that I have to speak especially about what I believe will be the effect of the abolition of early release and going into real-time sentencing. Before doing so I make what I hope is a helpful and constructive comment in relation to minimum sentences. Of course we are all concerned about the serious and distressing nature of domestic burglary. But rather than going down the route of mandatory minimum sentences, would it not be sensible to look to see whether domestic burglary should not be added to that group of offences on which the Crown has a right to appeal to the Court of Appeal for over-lenient sentences? Further, if we are, regrettably, to go down the route of mandatory minimum sentences, I believe that the exception set out in the White Paper is, with respect, far too narrowly drawn. To say the least, a mandatory sentence must be passed unless the judge is satisfied that to do so would be unjust.

So far as concerns the provisions on life sentences, it is possible to say that there is a case for considering such a sentence in regard to rape. However, can it seriously be suggested that mandatory life sentences are appropriate for a second offence of wounding with intent or causing grievous bodily harm with intent with the vast variety of degrees involved?

Can my noble and learned friend the Lord Chancellor tell me on what criteria the Parole Board is to satisfy itself that someone who has committed a glassing in a moment of fury in a pub brawl is safe to be released? Further, can the noble and learned Lord say whether that person would have the right to be represented before the Parole Board when it makes its vital decision?

Finally, on that part of the White Paper, I am frankly amazed at the naivete with which it appears to be thought that one can successfully identify whether or not

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a person is safe to be released. I say that with a good deal of experience. I was the junior Minister who released the poisoner, Graham Young, back into society; I took that decision. It was done on the basis of clear, firm and unanimous medical advice from the senior doctors of Broadmoor at the time which stated that the man was completely safe to be released. I wonder whether anyone can really be sure of such decisions.

I turn now to the subject on which I wish to devote the last five minutes of my speech; namely, the effect, as I see it, of doing away with automatic release. We have had automatic release in this country in some form since the middle of the last century. We have had it for all forms of imprisonment since 1898. The present system was introduced as recently as 1991 and was the result of the unanimous recommendations of a committee I had the honour to chair which included members of the judiciary and also a chief constable. Perhaps I may remind the House that it was, ironically, put forward as a method of returning honesty, clarity and meaning to the sentences passed by the court. We are now told that it is to go. There no reason advanced in the White Paper to explain why it has failed. The only argument put forward is that the system of release at a half way stage--the second half being spent in the community with the risk of being recalled if one commits a further offence--is that it is complicated and confusing both to the public and to the courts.

What will the effect be? I am not opposed in principle to real time sentencing. However, the House must face up to the fact that there are two alternatives. Either one has a massive and enormous increase in the prison population as prisoners spend a longer period of their sentence in prison, or one has a dramatic reduction in the sentences passed by the court. The White Paper makes clear that it goes for the second option.

As the noble Lord, Lord Williams, pointed out, the White Paper says in terms that the proposals should not increase the period of time that a person spends in prison. However, can my noble and learned friend the Lord Chancellor say whether the Government realise that that means that every sentence--and I mean every sentence, including those for burglary and for serious crime--other than those in the identified special categories will have to be reduced by between a third and a half? For three years read two, and for 18 months read nine months. I ask the Government whether that is really what they intend. If it is, how do they propose to achieve that end? Is it to be done by the rewriting of all the guideline cases? What worries me is that it appears the Government are trying to pursue two contradictory ends. They suggest putting an end to half-time sentencing for full-time crime and say that people should not be released so early. But at the same time they suggest that judges should take account of the proposals to ensure that time spent in prison is not longer.

I do not believe that the aim set out in the White Paper will be achieved. If it is, the only effect will be that the time of those on supervision in society will be less than it is at the moment. If, as I believe, the aim is not achieved, the effect will be a massive increase in the prison population. The predictions in the White Paper

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take no account of that effect. The increase will be far greater than is suggested. There will not be an increase of 10,000; there will be an increase of something like 30 or 40 per cent. in the prison population. Where will they go? Rather than planning, without any justified argument, a system which will mean people spending longer in overcrowded prisons, leading to a requirement for new prisons with all the expenditure involved, surely it would be better to use the same resources to attempt to stop crime by increasing powers of prevention. That is the way the Government should proceed.

3.46 p.m.

The Earl of Longford: My Lords, I join other speakers in heartfelt tributes to the noble and learned Lord the Lord Chief Justice. I am not qualified, as others are, to speak of him from personal knowledge but I think one can say to him, in the words of the poet,

    "When the high hope we magnify and the true vision celebrate, ourselves are great".
I am bound to say that he compares in my eyes very favourably with someone with whom I became friendly in his last years; namely, Lord Goddard who sat on the other side of the House and said perhaps 40 years ago in a debate on capital punishment that a particular man he was discussing should be destroyed. I do not even think that Mr. Michael Howard would use that language today. Much progress has been made since that time and that is exemplified by the noble and learned Lord the Lord Chief Justice.

I respect, as always, the noble and learned Lord the Lord Chancellor and congratulate him on facing this barrage of criticism. In half a century in this House I have never heard a debate which, at any rate, started so unfavourably for the Government. However, I suppose he is accustomed to this as he is a tough guy, if I may use such an expression. He is a man of courage. All Roman Catholics are aware that he was ready to sacrifice his beloved membership of his Church to attend a Roman Catholic service. If he is ready to do that, he will be prepared to take on the whole of the House of Lords, bearing in mind of course that he is defending policies which--as the noble and learned Lord the Lord Chief Justice pointed out--are a total contradiction of those which he defended as Lord Chancellor a few years ago.

However, all that is by the way. All noble Lords speak from varied experience. That is true of myself, but today I speak from the angle of one who visits prisons regularly and has done so for many years. I visited a prison earlier this week and I shall visit another tomorrow. This week I have also visited a mental offender on a psychiatric ward. I submit that Howardism is totally incompatible with rehabilitation. Many years ago I wrote a book, The Idea of Punishment, which referred to reform as being among the elements that are required in a just settlement. I think that everyone will agree that reform, rehabilitation--or whatever you like to call it--is at any rate part of a correct sentence and of a correct penal objective.

Let us try to imagine ourselves as prison officers. I do not believe we have ever had a prison officer in this House; I hope we have one fairly soon. Let us

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imagine being a prison officer in the age of Howardism. Imagine saying to a prisoner, "I say, old chap, I know you were hoping to get home leave but it has been cut down. There has been a 40 per cent. reduction--so too bad. And you had television, did you? That's coming to an end. And your visits, too, will come down". That is what Howardism means on the spot. We know that the principles of Howardism are twofold: that prison works; and it will work better if made nastier for prisoners.

I hope that no noble Lord finds himself in such a position, but how does one defend such a policy when confronted with a prisoner who has been in prison for some time. One might call him by his Christian name; I do not think prisoners use the address "sir" nowadays. He asks, "Do you defend this?" and you say, "They are not my orders". Howardism is despised throughout the Prison Service at all levels. If any noble Lord wishes to question that, let him come with me the next time I visit a prison.

What about rehabilitation? Rehabilitation depends on many people playing their part--the education service, the chaplains, the Probation Service and others. Governors are all important. However, in the last resort rehabilitation depends on the prison officers keeping in touch with the prisoners. Those people have lost total confidence. If anyone doubts what I say, let them come with me to a prison to test it out. How can those prison officers play any part in rehabilitation, which is said to be part of the objective? A prison officer said to me recently, "Of course, we know Mr. Howard would be upset if he saw a smile on a prisoner's face". I said to another prison officer that things had been made a little difficult for visitors nowadays. (I shall not go into all the formalities; some are rather humiliating.) He said, "Not half so difficult as for us".

That is what one has: government servants totally disaffected but doing the job that they have to do and being expected to play a part which cannot be played as regards rehabilitation. That is the situation today.

One may ask: how did that come about? Better men than me and others will explain that all people who know anything about prisons are against Howardism. You cannot find a single person with any knowledge of the situation at any level who is in favour of it. Nevertheless, it is the official policy of our country at this time. It is carried out by the Government who have for the moment a majority behind them, although they were elected some years ago. How did this come about? It can only be because the Government assume that the policy is popular. If asked to explain how it could be popular, one reads the tabloid press and finds some support for Mr. Howard. The Daily Mail--an otherwise excellent paper--is ghastly on penal matters. It calls Judge Tumim, who knows more about prisons than the whole staff of the Daily Mail will ever know however long they live, a foolish judge. That is the conflict between the Daily Mail and Judge Tumin. The tabloid press have much to be responsible for.

However, that situation does not apply only to people who admit to reading the tabloid press. I met a distinguished QC recently--I must not distinguish him more clearly--for whom I have a particular

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regard. He is a man of strong moral principles. I asked him, "Would you not agree that a certain prisoner who has been in prison for 30 years and is not dangerous should come out?" He said, "I know that it is illogical, but I have a gut reaction against it". On the one hand, we have great knowledge of these matters and on the other the gut reaction. What is the gut reaction based on? In a notable speech by the Archbishop of Canterbury, to which I had the pleasure of listening, he warned us against the policy of vengeance.

I conclude by quoting a taxi driver who said to me, "When Fred West committed suicide, I felt cheated of my vengeance, but I know it was wrong". I implore the Home Secretary to try to extract some of the wisdom of that taxi driver.

3.55 p.m.

Lord Elton: My Lords, this White Paper has provoked a fine argument, first in the press and then in this Chamber. Most of us can only listen in awe to the views of judges and government on sentencing and custody. Like First World War Tommies we crouch in the trenches wondering, as paragraphs whistle over our heads, while popular editors add their fury to the din with purple cheeks and bulging eyes. And like a First World War Tommy I find myself more and more convinced that this is the wrong battle, fought on the wrong grounds at the wrong time.

Both the White Paper and your Lordships are asking the wrong questions. You are asking schoolmaster's questions: "Who is the culprit? Where has he gone? How can we catch him?" And above all, "How shall he be punished?". Surely we should be asking not the schoolmaster's questions, but the parents' question. "How can we stop Tommy becoming a criminal at all?"

Surely the figures alone make that obvious. The Home Office Digest of Information puts total expenditure on the criminal justice system in England and Wales in 1993-94 at £9,424 million. And these figures include not a penny for Scotland or Northern Ireland. Thus the total bill to the taxpayer is well over £9,500 million.

But that is not all. The Association of British Insurers tells me that the cost of successful claims for commercial property was £205 million; for domestic property £567 million; and for motor crime £603 million. That brings the total of its bill to £1,375 million. That brings us to a grand total of £10,799 million, excluding the cost to government in Scotland and Northern Ireland. So certainly the figures suggest that we should intervene in people's lives before they become criminals, not wait to react until they do.

But it is not only the figures that tell the tale. It is a sad commentary on our generation that it seems natural to place them first in the order of argument. The really telling argument surely remains not the financial, but the human cost of crime: the cost in death, loss, pain, insecurity and fear. Crime can devastate the lives of victims and it diminishes the quality of life of whole communities.

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Certainly that provokes us to retribution and deterrence. I can understand some people wanting to put a teenage thug into the slammer and throw away the key forever, even if, with the noble and learned Lord, Lord Taylor, I think it is rather often a wrong or avoidable response.

But which of your Lordships seeing that teenager at the age of 3 or 5 could possibly wish that future upon him? "Of such", you remember, "is the Kingdom". Which of you would then be content to stand aside and let him follow his course into bovver boots, flick knives, drugs and gaol?

If we can intervene then, and throughout his childhood and adolescent years, so that the path to a good life is always open and attractive, shall we not prevent untold sorrow and misery as well as a great deal of the inordinate expenditure that results from our present failure to do so?

Much work has lately been done to find out what predisposes children to crime. As the White Paper acknowledges, the causes come about very early in life. It is a striking fact, if only a coincidence, that there seems to be an hereditary element in the criminal classes as well as in this House. I cannot help thinking that it would reflect better on those concerned with the latter if they gave the former a higher priority.

The children of inadequate parents tend in their turn to raise another generation of inadequate children, simply because they have never experienced good parenting themselves. That is a dismal cycle and we have to break into it. In 1988 the report of my Committee of Enquiry into Discipline in Schools urged the Government to develop a post-school education strategy aimed at promoting socially responsible parenthood. I repeat that advice today, with the emphasis of a desperate plea.

The Government are rightly moving to make nursery education more general in the pre-school years. The means is a matter for another debate in which the art of lobbying looks like coming of age long before the pupils that we shall be discussing; but the intention is entirely admirable and I applaud it.

In the classrooms things are less happy. Large numbers of children absent themselves without leave. The paper rightly points to the links between family support and both truancy and crime, and to truancy as one of the many factors predisposing to crime. Paragraph 2.35 lists all the government and public sector agencies that are currently deployed against juvenile offending and advocates more effective partnership between them and parents.

That paragraph brings the welcome news of a new ministerial group on juveniles to review policy. I hope that it will resolve some of the financial tensions between departments with complementary programmes. I believe that we in this House should help to support it and I wonder whether we should consider making that area of policy the next subject of an ad hoc Select Committee.

However, the paragraph makes no mention whatever of the voluntary sector or the vast resources that it can deploy. I hope that I am wrong and that I shall be

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corrected by my noble and learned friend. But I can find no reference to Home Office support of voluntary efforts in this field and I find that disturbing.

But children are not only absent from school by choice. Increasing numbers of children are being thrown out, partly as a result of the otherwise beneficial competitive element brought into education by the Government. Three short paragraphs neatly summarise the existing practices and approaches to both truancy and exclusions.

The potential of the voluntary sector in both those areas is enormous. I hope that we will see a practical demonstration of that in Nottingham in the coming months. There is a high exclusion rate there and the proportion of African/Caribbean children involved is far greater than their total number would justify. The DIVERT Trust, in which I declare an interest as chairman, is engaging the black-led churches, and others, in a mentoring scheme for children who have been or are on the brink of being excluded from school, and in the provision of supplementary schooling elsewhere. Our intention is to help them either to stay on the raft of education or to climb back on board as well behaved pupils. Experience in both America and North London suggests that mentoring, which provides a stable reliable friend and counsellor for each child involved, does a great deal to improve the pupil's behaviour. The trust was invited to bid for Home Office funding for that but was unsuccessful. That refusal was deeply disappointing, but it does not colour my views and I do not want to finish on a sour note.

We are all of us engaged in a struggle which is of increasingly crucial importance to the welfare of this country, a struggle to bring light and order into confused and potentially criminal young lives. The fact that the efforts of my friends and myself are neglected on this occasion does not blind me to the merits of what is being achieved elsewhere or to the earlier support that we had in the past from the Government and to the very welcome personal support from my noble and learned friend on the Woolsack.

I ask those members of the press who very occasionally pay attention to what goes on in this Chamber to do one simple thing. In a democracy in which the Government are answerable to public opinion, which, as has already been forcefully pointed out, the press moulds, they owe us no less. I say to them, "Before you portray this country as sunk in lawless violence, and before you write off entirely the efforts of this Government and their predecessors, of its parents and its teachers, raise your eyes and look about you. How do we compare with other countries?"

In a short debate, a short illustration must suffice. Let me take the homicide rate per 100,000 simply as an indicator. In Washington the rate is 75.2--that is in the capital of the country from which the policy in this paper appears to derive; in Birmingham (not in Birmingham, West Midlands, but in Birmingham, Alabama) the rate is 48.8; in New York, it is 27.1; in Amsterdam, it is 7.1; in Lisbon, it is 4.8; in Stockholm, it comes down to 3.8; Brussels and our own Birmingham tie at 3.2; in London, the country receiving

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American precepts, our capital, it is 2.4 per 100,000. Only Edinburgh beats us at home. The rate there is 2.1. We are not a lawless country and should not be stampeded into behaving as though we were.

4.5 p.m.

Earl Russell: My Lords, in common with other noble Lords, I should like to pay tribute to the noble and learned Lord, Lord Taylor of Gosforth, for the distinction with which he has held the office he is so sadly about to leave: first, for the skill of his political leadership during a period in which, as the noble and learned Lord, Lord Oliver of Aylmerton, has said, "Relations between the executive and the judiciary are perhaps worse than at any time since the reign of King James I."

King James I was an ultra-positivist in legal matters with an over-developed concept of sovereignty and with a conceptually, sadly-limited understanding of a jurisprudence based on precedent. The common law survived his reign, it is commonly thought thanks to the highly visible and combative activities of Chief Justice Coke; but also, equally, through the rather more discreet, rather quieter inside track activities of Lord Chancellor Ellesmere. It is the distinction of the noble and learned Lord, Lord Taylor, that he has managed to exercise the skills of both those men within his single person; and when perhaps in 500 years lectures are delivered in the Inns of Court about how the common law survived the 1990s, I hope that the noble and learned Lord will be given the credit he deserves.

I should also like to congratulate him, if I may be forgiven a moment on a matter of personal interest, on his judgment in the Ahluwhalia case. That was a case of a victim of domestic violence where the worm turned and killed her husband. The noble and learned Lord found it to be a case of diminished responsibility. That judgment has done a tremendous amount of good in a field about which I know something. I hope, layman though I am, that I know enough not to praise a legal judgment solely because it has done good in the social field.

That judgment saved the common law from an argument about provocation, from which I believe no good could have come. It was also a thing of intellectual beauty, such that I would have been proud to do anything on that intellectual level. Above all, which is what brings it into the point of today's debate, it showed an absolutely meticulous attention to the evidence in the individual case. In fact, it was from the study of the evidence that it arose. When judges decide to which other cases that principle shall apply, the same meticulous attention to the evidence is necessary in each individual case. That is one of the cases which entitled the noble and learned Lord to say in the article in this morning's Times,

    "certainty in sentencing can be achieved only by sacrificing justice".
That is the main point to which I shall speak.

I say in passing that I do not believe that this White Paper will be put into effect. If the voters do not stop it, the Treasury will. My party is one which is sometimes

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praised--I believe rightly--for its willingness to be honest about being prepared to spend money and to raise taxes to pay for a particular proposal. But if I were to go to my right honourable friend Mr. Ashdown with a spending proposal as large as this for so uncertain a rate of return, for so poor an investment, I believe that I would be lucky to emerge from his office with nothing in my ear any larger than the proverbial flea.

I listened with great interest to the noble Lord, Lord Elton. I hope he will forgive me if, rather than side-tracking this debate, I reply to him during the course of our next social security debate. The deferring of the reply does not mean that I listened to him any less carefully.

In the principle of attention to the evidence I must say that one can know very little about any case from reading the press reports. It so happens I learnt that the hard way in a case with which I became associated some three years ago. Any of us who knows anything about that case only from the press know very little about it. Incidentally, it gave me far more credit than I deserved, but that is by the way.

The noble and learned Lord, Lord Simon of Glaisdale, once said to me, "I never thought of you as an expert on date rape". I was grateful to the noble and learned Lord for that remark, but there is such a thing as having expertise thrust upon one. I shall therefore look at the proposals in Chapter 10 of the White Paper about rape. First, they illustrate the need for meticulous attention to evidence. I should say that there seems to be some doubt about how that principle of the automatic indeterminate sentence plus the tariff will work.

The key question, as with the mandatory life sentence, is whether the tariff is going to be made public. It seems to me that we have a fork here. Either we have too much executive discretion or we have an infringement of the principle of honesty in sentencing. But when we come to individual rapes, some are inflicted at knife point in a dark alley, and sometimes with inexpressible cruelties beyond that, without even a whisper of suggestion of consent, in which I would have no objection to a life sentence for a first offence. There are others where perhaps the woman has embraced the man, enticed him, taken off her clothes, got into bed with him and at the last moment decided to say no. I accept that no means no. The woman has every right to do that. But the man who ignores her at that moment, though I believe he commits a crime, does not commit a crime which in any way resembles the crime committed by the man with a knife in a dark alley. To put those two cases under the same automatic rubric is absurd. That strikes me as a case resembling formula fetishism.

I wish to touch also on the provisions for keeping people in prison at the end of the tariff because it is dangerous to release them. It is true that there are people whom it is dangerous to release at the end of a sentence and that the public needs protecting from them. That is not in dispute. The question is under what head it should be done. If they have served their tariff, they are not being kept in prison under penal policy; they are being kept in prison for reasons that have more to do with mental health than with penal policy. The noble and

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learned Lord the Lord Chief Justice, in his court and out of it, has called attention to the extreme difficulty of finding hospital places for offenders who ought to be treated under the Mental Health Acts but in fact end up in prison although they do not belong there. I understand why there has been a policy of closing long stay mental hospitals. I respect those reasons. However, I think we have to accept that it has gone too far and that Chapter 10 of the White Paper shows how that decision has put a burden on the criminal justice system which it is not only logistically but also conceptually unable to bear.

The object all sublime is to make the punishment fit the crime. It is not to make it fit the criminal offence. We can do one thing or the other. We cannot do both.

4.12 p.m.

Lord Belstead: My Lords, I join other noble Lords in thanking the noble and learned Lord, Lord Taylor, for initiating this debate today. I should like to add my personal good wishes to the noble and learned Lord, who has served his country so well in his high office. I must declare an interest in the noble and learned Lord's debate today as Chairman of the Parole Board.

I hope I shall not be thought ungracious by the Government when I observe that although there are proposals in the White Paper for automatic sentences which would in fact, if they pass into law, give more work to the Parole Board, it is to Chapter 9, which would end parole for all determinate sentence prisoners, to which I should like to direct my remarks in the few minutes available to me.

I well understand the reasons which prompt the right honourable gentleman the Home Secretary to put forward proposals for the sentence served to relate more closely to the sentence given. However, I have concerns as to how that is going to be managed, and I hope to show that my concerns run very much wider than any desire simply to protect the status quo.

My concerns rest on the belief that the Home Secretary, in aiming for what is described as "honesty in sentencing" is in grave danger of jeopardising the main aim of the White Paper, which is summarised in its title Protecting the Public. In order to substantiate that charge I ask your Lordships to consider for a moment the effects of the changes which are outlined in Chapter 9.

The present system of parole was introduced only three and a half years ago as a result of the proposals brought forward by the committee which sat under the chairmanship of my noble friend Lord Carlisle of Bucklow. One of the aspects of my noble friend's proposals which passed into law was that the parole scheme would be restricted to long-term prisoners, defined as those who are serving four-year sentences or longer; a dividing line which was very carefully chosen in order to include the more dangerous and persistent criminals. Although I would be the first to admit that risk assessment still remains a very uncertain science, it is a fact that research studies show that parole can break a pattern of offending so that in general statistics show that parolees reoffend much less frequently than do prisoners who are not paroled.

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As many of your Lordships will know from personal experience, the parole system depends on the examination of reports which focus on crucial issues, including the nature and circumstances of the crime; the criminal record; the attitude and behaviour of the criminal; whether there is a realistic resettlement plan; any psychiatric or psychologist's report; and always, I am proud to say, on a one-to-one interview conducted with a Parole Board member.

That brief list is a reminder that parole is a system which gives an incentive to a prisoner to try to reduce the risk of reoffending. It also provides information for managing that risk by supervision when a prisoner is released. When a panel of the board comes finally to decide or recommend to the Home Secretary either for or against parole, its primary concern, based on the reports received, is always, first and foremost, the risk to the public.

But under Chapter 9 of the White Paper all that is going to change. Most of the reports which assess risk will presumably be discarded in favour of the mechanical adding up of days earned for good behaviour. The problem which that presents is that good behaviour in prison does not of itself predict good behaviour after release. It is perfectly true that Chapter 9 says that a prisoner's behaviour will have to be looked at as "positive" and "diligent". But Ministers must be aware that there are prisoners who can say the right things and attend the right activities, but who have not had a real change of heart or mind. How cases of that kind will be identified with any accuracy is not made clear. That is not surprising, bearing in mind that the White Paper proposes that all the long-term and short-term prisoners are swept up into one huge remission scheme, which will mean about 25,000 prisoners each year being eligible for earned early release, which will depend on being co-operative in prison.

Perhaps I may give just one other example of why I am so worried that the White Paper is on the way to reducing and not increasing protection for the public. These days we are rightly concerned with the protection of the victims of crime. One of the ways in which that can be done when a prisoner is being released is to impose special licence conditions which will assist the Probation Service in supervising the prisoner. For example, a condition of non-contact with the victim or the victim's family may be imposed, or a condition not to engage in work which may bring the offender into contact with likely victims. They are conditions which trip very easily off the tongue, but when one has to decide whether they are to be imposed they are quite difficult to decide.

If prison governors, with all their many responsibilities, have to decide on special licence conditions in future, all I can say to them is that they are going to find themselves writing some 25,000 licences a year and the reports on which those licences need to be decided will be phased out.

I am therefore deeply concerned that the proposals for "Honesty in Sentencing" have not been thought through. There are other issues which lead to the same conclusion, but there is time only to mention them. How will supervision work for earned early release when for most

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prisoners the supervision period in the future will be appreciably shorter than it is now, and when prisoners who have failed to get any remission at all and are therefore, by definition, the most difficult of people, will be supervised entirely after they have finished their sentence? How will recalls of long-term prisoners under supervision work? That is an absolutely prime protection for the public and is at the moment dealt with by the immediate involvement of the Parole Board. What are to be the changes in sentencing to fulfil the Government's intention that the prison population will not increase in consequence of Chapter 9 of the White Paper? That is a particularly sensitive issue, as the noble Lord, Lord Carlisle, showed in his speech, if "Honesty in Sentencing" is to live up to its name.

In its response to the White Paper which the Parole Board submitted yesterday, we fully endorse the Government's aim of providing better protection for the public. As I have already said, I well understand the reasons which have prompted the Home Secretary to put forward his "Honesty in Sentencing" proposals. But that objective could be achieved without discarding the process of rehabilitation and the genuine attempt to try to assess risk. I wonder why the Government have not, apparently, even considered a much simpler option and one which would not require judges to reduce sentence length at all, as far as I know. That option would require all prisoners to serve two-thirds of the sentence in custody, followed by a maximum of one-third earned early release as envisaged in the White Paper for those sentenced to under four years, and one-third discretionary parole for those sentenced to four years or more. There would still be a minimum of three months' supervision at the end of the sentence for those who do not either earn early release or gain parole at all.

The result would be that without having to tinker--that is a euphemism--with sentences, the time served in prison would be just about the same as will be served following the scaling down of sentences under the White Paper proposals, and longer-term prisoners would continue to be subject to discretionary release which requires more than mere good behaviour and tries to take account of risk factors before a prisoner can be released early.

However, if government policy remains as it is, I believe that the general public will rapidly begin to feel that they are afforded less, rather than more, protection than at present. If that is the result of Chapter 9 of the White Paper, that will be a very bad day indeed.

4.17 p.m.

Lord Donaldson of Lymington: My Lords, at the risk of taking up time which should perhaps be devoted to the subject matter of the debate, I must pay my own personal tribute to the noble and learned Lord, Lord Taylor, thanking him for initiating the debate and above all paying tribute to him for all he has done for the judiciary and the law during his time on the Bench. I say that from greater personal knowledge than some of your Lordships, having been a fellow member of the Court of Appeal and one of the four Heads of Division after the noble and learned Lord became Lord Chief Justice. The noble and learned Lord's contribution has been of the

23 May 1996 : Column 1049

greatest possible value. I hope that neither the fact of his retirement nor the state of his health in the future will in any way inhibit him from coming back here and giving us the benefit of his experience.

Turning to the subject matter of the debate, as we all know we enjoy an unwritten constitution under which there is a separation of powers and a division of responsibilities. The government of the day are responsible for law and order. The judiciary is responsible for determining guilt or innocence and what is the appropriate sentence when guilt is established in the normal way. There is a very obvious interface between those two responsibilities by two bodies which are separate and independent. As the noble and learned Lord, Lord Cooke of Thorndon, has hinted, it calls for a high degree of sensitivity and mutual trust and respect.

The problem that arises in the context of the White Paper and the pronouncements of the Home Secretary, in support of it, both before it was published and since, is that it gives a message loud and clear to the public generally, and to anybody who will listen, that the judges are not to be trusted. That is what it amounts to. I hope and believe that that is an unprecedented attitude on the part of any government. It is as deplorable as it is unprecedented. I have searched my conscience, in so far as I have been a judge, and find nothing in the conduct of the judiciary to justify that lack of trust, or anything which has displayed on its part an equivalent lack of respect for the Home Secretary and the Home Office.

I shall try to justify the statement about the loud and clear message. There is to be a mandatory life sentence for a second offence of serious violence or a serious sexual offence. We have always known that there is a problem about protecting the public against a repeat offender in this category. We have always had the tool of the discretionary life sentence. In the 1970s I used it myself in a case of rape. There had been two successive rapes, one a carbon copy of the other. It struck me that while there was no basis for treating the person concerned as a mentally afflicted offender the defence of the public required a life sentence, and that was the sentence passed. What evidence is there that judges are not doing the same today? What evidence is there that more are slipping through the net than is inevitable in any system, particularly in view of the remarks of the noble Lord, Lord Carlisle, that it is difficult to spot those who will re-offend?

I have one minor complaint about discretionary life sentences. I believe that those who are subject to such sentences ought not to be described as life prisoners. That is not an honest description of their sentence. Further, I believe that their release ought to be determined by the courts on the basis of advice tendered by the Parole Board, but that is a matter of no great importance in the context of what is proposed in the White Paper.

The same message is given on drugs. There is to be a mandatory seven-year sentence for a third conviction. A wholesale drug supplier will receive such a sentence on first conviction, let alone third conviction. What are we talking about? Regrettably, we read regularly in the press--heaven forfend, not on a daily basis--cases of teenagers who buy Ecstasy or similar drugs. They may

23 May 1996 : Column 1050

buy rather more than they need and share it out with their friends. Is it to be said that a teenager who does that three times is to receive a seven-year sentence? No judge would contemplate it. But this Government do not trust the judges.

In respect of burglary, there is to be a mandatory sentence of three years. Whether that is for a second or third offence does not really matter. Average figures for sentences are trotted out to support this policy. What on earth is an average sentence? It is a pure arithmetical abstraction.

When those figures were being trumpeted by the Home Secretary, I said, "It cannot be true. It is contrary to all experience." I am bound to say that it surprises me that he, as a lawyer, did not have the same reaction. I was able to ask Questions for Written Answer in this House which revealed that the figures are highly misleading. My noble and learned friend Lord Taylor has dealt with some of the misleading aspects. I add only one. I asked also for details of the range of sentences imposed in cases of burglary in the sample, which is a very stale sample anyway. In a Written Answer I found that for a first conviction the range of sentences started with one month and ended with seven years; for a second conviction, it started at two months and ended with 10 years; and for a third conviction, it started with six months and ended, again, with 10 years. That illustrates, as perhaps nothing else does, the enormous range of offences which come within the general category of burglary. The same is true of almost every offence.

Let me say one quick word about the escape clause upon which I am sure the noble and learned Lord the Lord Chancellor will rely. It is a snare and a delusion. I quote from the White Paper:

    "This is intended to allow for occasional quite unforeseeable circumstances where it would plainly be unjust and unnecessary to impose the mandatory sentence".
We have been foreseeing those circumstances throughout the debate, so none of those circumstances can be contemplated. The White Paper continues:

    "But it should be emphasised that this provision will be designed to cover only genuinely exceptional cases--it will certainly not be open to the courts to set aside the mandatory sentences merely"--
that is a funny word--

    "because it is higher than the sentence they would otherwise have been minded to impose".
In other words the mere--the Government's word, not mine--fact that the sentence would be unjust is no ground for using the escape clause.

I ask the Government most sincerely to think again--and to think several times--before they again tell the country as a whole that the judiciary is not to be trusted.

4.32 p.m.

Lord Carr of Hadley: My Lords, when the White Paper was produced I received a personal message from the Home Secretary suggesting that I might like to see him so that he could run through the proposals with me. In my reply I made it clear that I was afraid that at least my first reaction to the proposals was not terribly friendly, but I said how much I appreciated the offer. I accepted the offer to talk to him about it. Unfortunately, through no

23 May 1996 : Column 1051

fault of his--it is entirely my fault for being away--I have not been able to have that meeting with the Home Secretary. In those circumstances it is probably fairer, and anyhow more polite of me, not to express my views on these proposals one by one.

I want to use my time to do something rather different and to look ahead. I am one of those who hopes that the Government will not proceed with legislation based on proposals in the White Paper, at least without very substantial alterations. If they do decide to go ahead, I beg them not to do so hastily.

We have had a serious debate on this subject today. The whole temper of it has been serious. Polemics have been absent. Every speaker so far has expressed grave concerns about some of the major proposals in the White Paper. Since all those comments come from Members of your Lordships' House with real, deep, and long experience and knowledge of these matters, it is important that the Government take those fears seriously, and think, and think again, about them.

What we have heard and will hear today will be of public record. It is also important to make available for public record the representations which the Home Secretary may have received and will receive before the end of the consultation period. We all ought to see the views on the proposals of the people involved before Parliament as a whole is asked to legislate to put them into action. I make that plea most strongly.

My plea is strengthened by the fact that the Government are overturning--there is no other way to describe it--the proposals, principles and philosophies which were put forward as recently as 1990 and embodied in the Criminal Justice Act 1991. They were not the principles and policies of a government of another party or of some distant Conservative Government. They were the policies and proposals put forward only six years ago by a Conservative Government whose membership is similar to the present Cabinet. Indeed, the Home Secretary was a senior member of that Government at that time and entered the Cabinet in 1990. I do not know whether he was a member of the Cabinet when the White Paper was published but he was certainly an important Minister.

I do not believe that in respect of such a vital matter the Government can just go into reverse in this way without explaining more deeply and clearly to us in Parliament and to the public as a whole why six years ago they were wrong--not just a little wrong but fundamentally wrong--and are now fundamentally right. It does not seem to be credible to have such a change of heart in such a short time and to carry any authority or persuasive power with the country as a whole. I strongly urge the need for careful further thought and explanation before we have to cope with legislation in this House or another place.

I ask the Government before proceeding with legislation to include in the publication for which I have asked some broad figures showing in financial terms their priorities for the law and order budget. I am pleased that the Treasury has been remarkably generous in allowing expansion of the law and order budget in recent years. I do not know how expenditure falls in different areas but

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I know that prisons take up a huge part of that budget, and that has not changed since I was Home Secretary. Prisons are very expensive, and money spent on them cannot be spent on other things. There needs to be a well thought out and publicly known balance in the financial priorities. In this area of Government as much as in any other the need to obtain the maximum value for money in protecting the public is vital.

Prison is very expensive. It is essential for punishment and for protecting the public from dangerous men and women. Nothing can take the place of prison, but I have seen no evidence from this country or any other which does other than confirm me in the belief that I formed when I was Home Secretary that imprisonment is the most expensive and least effective way of deterring or reforming. Therefore, in the law and order budget there must be a bigger share for measures which deal not only with the measles spots of the criminal problem but with the disease of criminality in the community as a whole.

Of course, that takes one into the field of education and other things which are nothing to do with the Home Secretary's budget. But within the Home Secretary's sphere of responsibility there are, for example, as was mentioned by my noble friend Lord Elton, whole areas of voluntary work and voluntary activity. There is a great deal of experience there. For some years I have been president of the Rainer Foundation and I know from my experience of that that one can find whole areas of constructive treatment for young people which reduce significantly the rate of recidivism. But once you put people, and in particular young people, into institutional custody, the rate of recidivism is appalling.

Therefore, if we are really going to protect the public from crime, we must devote adequate resources, which I suspect we are not doing at present, to treating what I would describe as the disease of criminality in society and not merely punish those who commit those crimes.

Therefore, while I welcome the priority which this Government give to law and order, and while I am sure that the public welcomes it, I beg the Government to think carefully and to look deeply into public opinion. I urge them not to be swayed by the noisy clamour which comes from a minority at party conferences or what I am afraid is no longer the minority of the press, much of which is ignorant and deliberately stirring up and exaggerating fears. As my noble friend Lord Elton said in his concluding remarks, when one looks at the figures--and figures are not easy to look at in this field--we are not by any means a very criminal country compared with some others. Let us have a little more hope and put a little more constructive work into that area, and I believe that we shall all reap the benefits.

4.42 p.m.

The Lord Bishop of Birmingham: My Lords, we are all deeply grateful to the noble and learned Lord, Lord Taylor, for initiating this important debate, as we are indeed for his distinguished service to the people of this country.

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There is no doubt that the problems presented by crime and the fear of crime are real, even if that is less than is sometimes supposed. Were there time, I could tell your Lordships stories of clergy in the inner cities being mugged in broad daylight; of a nun raped by an intruder in the middle of the night; of repeated burglaries of vicarages; of elderly women no longer daring to visit their neighbours, even in daytime, not only because of the fear but because of the experience of mugging; and of clergy who tell me why they feel unable to send their children to local secondary schools because of drugs, abuse and violence. That is at first hand.

But in considering the Government's White Paper, the question that I put before your Lordships' House is: how effective are the Government proposals likely to be in the long run, not for the immediate satisfaction of the demands, which are not always well-informed, of public opinion, but for making this country a better place in which to live?

In that perspective, the Government's proposals seem to me to be fatally flawed by their narrowness of focus and preoccupation. Although the White Paper contains a chapter on the prevention of crime, its approach as a whole is focused on response rather than prevention; on response primarily in terms of punishment; on punishment primarily in terms of imprisonment; and on imprisonment primarily seen as containment. That whole scheme of things is unbalanced.

A telling example of that lack of balance is to be found in the little paragraph on bail. The Government are rightly concerned about the abuse of bail. But it seems that they are concerned only with the inappropriate granting of bail, not about the inappropriate withholding of bail. To my mind, that betrays an unbalanced perspective on the overriding issue of justice as a whole.

The White Paper also contains some unhappy and frankly unworthy rhetoric, notably that catchphrase "Honesty in Sentencing". Without actually saying so, such words imply that at present there is some dishonesty in sentencing. Honesty and dishonesty are qualities of persons. So who is being pointed at? If nobody in particular is in mind, such language should not be used.

The Government's proposals are focused on imprisonment, with some attention given also to community sentencing. Within that framework, the emphasis is almost wholly on containment and security. But if the effects of punishment are not to be almost wholly negative, then proper and proportionate attention must also be given to education, rehabilitation, reparation, facing up to the human consequences of offending behaviour, dignity and hope and to the needs and circumstances of particular offenders. I am sure that the Government would gladly affirm the importance of all those matters; but, once again, their absence or marginalisation from the discussion betrays an imbalance of perspective.

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Above all, if there really are the resources available for the massive expenditure implicit in the Government's proposals, why spend it all on more prisons? Are they really our priority? Would it not be far better to deploy such resources in a more constructive and positive manner in ways that will in the long run help to starve criminal behaviour of the soil in which it grows? The place where money above all needs to be spent is in the building up of healthy communities in which crime will not flourish, or not flourish so much--that is, on things like families, nurseries, schools, youth work, training, jobs and hope.

Of course, people will always misbehave. But the ways in which they misbehave are conditioned by the opportunities and by the social and moral conventions of the communities in which they live. The building of a healthy or a more healthy society: that is an awesome task for us all, and not least for the Churches. But government, too, have an indispensable part to play. Indeed, I would say that the nurture of a healthy and justly-ordered society is one of the noblest tasks of government.

How can we best build, not indeed a perfect, but, at least, a better society? That is the perspective in which any ultimately profitable discussion of criminal behaviour needs to be held.

4.47 p.m.

Lord Finsberg: My Lords, I want to speak as a non-legal Member of the House. I have not had any connection with the law, except for 10 years as a magistrate in inner-London. I should also like to join the thanks expressed to the noble and learned Lord the Lord Chief Justice for giving us this opportunity to debate the White Paper.

Listening to the debate, one needs to remember that it is the two Houses of Parliament which make the law and not parties, lawyers, judges or government. That is what should result from today's debate and the White Paper. The implication that it is some diktat from the Government really cannot stand up to scrutiny.

It is important for the public to have confidence in our criminal justice system. There has been a growing belief over the past decade or so that things have got out of kilter. That applies to public and media perception, but to public perception in particular. Those of us who have had the privilege of serving in the other place know what the public are actually saying about "softies". There are some who say that members of the judiciary have not always been as much in touch with the real world as they might have been. That is not a criticism; it is stating a fact as perceived by a large number of the population in this country--that is, not by the media alone, but by many other people.

I turn now to the man on the Clapham omnibus. I am glad to see from the advertisement on the side of the No. 88 bus which I often use that there is actually a Clapham bus now. It is perhaps better to listen to those who travel on such buses than to listen to a taxi driver, because there are rather more of them. People feel that the criminal is receiving more attention than the victim. I believe that the White Paper tries to redress the balance.

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Talking to members of the police at several levels, it seems to me that they feel aggrieved at the way in which the courts seem to hand out sentences which they believe are far too lenient. The new Bill must ensure that in future convicted offenders should spend no less time in prison than the sentence passed. I do not understand the feeling that, if parole is not necessarily given, it is a bad thing and it may upset the prisoner. Indeed, he does not have to be there in the first place if he does not break the law. We tend occasionally to forget that fact.

Members of the judiciary may, very rightly, say that they can only operate within the limits laid down by Parliament. That is all well and good. Therefore they should welcome the tougher sentences proposed in my right honourable friend's White Paper. We have all read the comments of judges that they wish they could give tougher sentences, but Parliament has not written the law to allow them to do so.

Minimum sentences seem to irritate some judges but I think the public would say, as I do, that experience shows the need to have a floor below which the courts cannot go, particularly when, as at present, sentences can be reduced enormously by the implementation of parole. I am glad that the DPP is thinking again about the guidelines on prosecutions for those "having a go" to protect their dwellings, because some of the cases that we have seen have astounded many people by their sheer idiocy.

Mandatory sentences for drugs offences, burglaries, offences of violence and sexual crimes will certainly be welcomed by members of the public who want their confidence in our judicial system restored. The judiciary may well feel that it has a role to play in reforming the system within the Acts of Parliament under which it operates, and perhaps of adopting in certain circumstances a policy of leniency. However, that in my view is the role of Parliament and not the role of the judges. What I think the judiciary sometimes fails to understand is that it is no longer held by the public in the high esteem in which it needs to be held, or in which it should be held. I emphasise that I want to see the judiciary in this country held in the highest possible esteem because those who carry out these tasks do so at great personal sacrifice and have an immense sense of duty.

Some of the problems may have arisen from the growing willingness of the judiciary--I suppose that former Judge Pickles is the best example of this--to speak on every possible occasion. I believe that the old fashioned mystique of the judiciary held it in good stead. I would rather like to see a limitation on the number of times judges speak out in public. It has been said in this debate that the White Paper indicates a reversal of previous policies. If that is so, it is done for one reason only. As the statistics show, the policies do not appear to have worked. If the Government were to continue on the same lines, I would criticise them strongly. I have read the White Paper twice, not once. The Government believe that their ideas will help to reduce crime. I believe that they are justified in reaching that decision.

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My noble friend Lord Carlisle is an old friend. He referred to the advice that he had to accept from doctors at Broadmoor. When my late wife was alive she was a lay member of the panel which advised on cases at Broadmoor. On numerous occasions she told me that she was not sure whether she was listening to the prisoner, the doctors or the psychologists. I believe that many of us echo the point made by the noble Lord, Lord Carlisle, on that matter. Tough sentencing has had a great effect. I am not sure how many of your Lordships will recall the late Sylvia Campbell who was a distinguished magistrate in East London. She decided that she had had enough of the phone box vandalism that was occurring in her part of the world. She said that the next case of phone box vandalism that came before her would receive an automatic prison sentence. The incidence of phone box vandalism dropped enormously in her area. I do not necessarily believe that one should be too soft on many of these issues.

I look forward to seeing the Bill, which I hope will incorporate the ideas in this White Paper, and take into account the views expressed in your Lordships' House today and the responses to the consultative document which I hope will come from all sections of the United Kingdom and from all sorts of persons, and not merely from those, if I may so put it--I include myself in this, being a Member of your Lordships' House--who can at a distance decide that this is a good thing for the public. I believe that we shall find a different response when the policy is tested, when I hope that Parliament implements the White Paper.

4.55 p.m.

Lord Nolan: My Lords, if I devote my speech to criticisms of the proposals made in the White Paper, I hope that I shall not be thought to be taking a purely negative attitude, still less one of hostility to the Government.

I welcome the majority of the proposals which the White Paper makes on matters such as preventing crime and more effective policing, and the good sense which it contains. My criticisms, like those of my noble and learned friend the Lord Chief Justice and, I think, almost all previous speakers, arise over the matter of sentencing.

The first is this. I accept at once that the primary purposes of imprisonment are to punish, to deter and to protect the public, if only temporarily, from the attentions of criminals. I accept also--I quote from Chapter 1 of the White Paper--that,

    "Time spent in prison can be used to rehabilitate offenders, for example by improving their training or education".
Prisons are not necessarily and not always places of despair. I have met a number of men, as I am sure other noble Lords have done, who as youngsters have been helped out of the criminal rut while in prison or in detention, and who in later life have been particularly influential in preventing younger people from getting into trouble. But there are too few of them, and we need more. The White Paper recommendations on sentencing will, I believe, inevitably increase the prison population which is already too high and so will further reduce the possibility of rehabilitation.

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My second reservation, shared by so many of your Lordships, goes to the matter of minimum sentences. Again in agreement with the spirit of the White Paper, I accept that a persistent offender should expect severe punishment. That is perfectly obvious and will be one of the main factors taken into account by the judge who sentences him. But of course the unspoken premise upon which the minimum sentence is proposed is that the judges cannot be relied upon by the general public to be sufficiently severe.

There can be no doubt of the existence among many members of the public of a widespread feeling that the judges tend to be soft and out of touch with the views of the man and woman in the street. The feeling comes, I am sure, from the fact that all the public have to go by is necessarily condensed accounts in the newspapers of what seem on the face of it to be surprising sentences. But as your Lordships will know, it is really impossible to form any sensible view about the appropriateness of a particular sentence unless you have been in court and heard all the considerations which the sentencing judge has had to take into account.

The people who are in a best position, so to speak, to judge the judge, and to apply a layman's yardstick to his or her sentence, are the men and women who have served on juries. It is not, I believe, widely known that they were the subject of a study carried out by Professor Michael Zander in his capacity as a member of the Royal Commission chaired by the noble Viscount, Lord Runciman. Professor Zander sent out a questionnaire to the members of over 800 juries--that is to say, getting on for 10,000 people--and asked for their views about various aspects of the trials in which they had taken part. The judges had an excellent report for their conduct of the trials. I can say this without immodesty because the survey took place after I had ceased to sit as a trial judge.

What is perhaps more to the point are the views expressed by the jurors on the sentences passed in the cases in which the defendant had been found guilty. About a third had no particular views about the sentence; of the remaining two-thirds, one half said that it was just about what they would have expected; a quarter said that it was rather more severe than they would have expected; and a quarter said that it was rather less severe than they would have expected. These were people who had sat through the whole case and really knew what the judge was dealing with. I would suggest that this massive and authoritative study goes far to refute any idea that the judges are failing to satisfy the perfectly proper demand for punishments which fit the crime. I only wish that the report by Professor Zander had received more publicity. The trouble, as we all know, is that good news is no news.

The Court of Appeal can increase sentences which are excessively lenient, but it spends far more time having to reduce sentences when the judge has been too severe. But even these are a tiny minority--some 2 per cent.--of all sentences passed. The vast majority of sentences are not appealed against or questioned at all, because they are as right as they can possibly be.

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Sentencing is the most difficult part of a judge's work. Trial judges today do it well. No one could do it better. The discretion of the judges should not be cut down.

The one redeeming feature, whatever its difficulties, of the proposals in principle is the preservation of the judges' discretion in genuinely exceptional cases. Without that, the case for minimum sentences would be not merely bad but wholly unarguable. At least this exception recognises the truth that all cases are different. That is why sentencing is so difficult. The exception for exceptional cases is vital, but it would be better by far to abolish the proposed general rule.

So I strongly support my noble and learned friend the Lord Chief Justice in his view that minimum sentences are both unnecessary and profoundly unjust. Your Lordships will appreciate that in this, as in other matters, the noble and learned Lord speaks not only with the authority which his office commands but with the authority conferred upon him by the confidence placed in him by his fellow judges and the high personal regard in which he is held by them. This is not the occasion to speak of that matter in greater detail. I simply say that I count it an honour to have served as a Queen's Bench judge under his leadership.

5.2 p.m.

Lord Stewartby: My Lords, I thank the noble and learned Lord, Lord Taylor, for introducing this debate. As someone who disagrees with much of what he said today, I immediately pay my own tribute to him. We all hold him in very great respect. We admire his professional courage and the way in which he has put forward his views. He has done so not only with judgment and skill but with persistence and persuasion. Those qualities are impressive to those of us who have hesitations about accepting what he says. We also all admire his personal courage, and we wish him well.

The debate has consisted largely of contributions from those who either have a central role in our legal system or are at least in other ways quite closely connected with it. What worries me very much--and I reflected upon it particularly as I listened to the noble and learned Lord, Lord Donaldson--is the gulf in understanding between those in the legal world and those outside it.

Most of the comments made this afternoon about judicial approaches to sentencing have been of a conceptual kind. There is nothing wrong with that. Indeed, it is a very important and essential ingredient in the approach to sentencing. However, it is possible to start from the other end and say what sort of custodial sentences are needed for persistent criminals in order to give the public the degree of protection and security they feel entitled to receive. If there is a sense, as the noble and learned Lord, Lord Donaldson, said, of some sort of attack on the judiciary, I do not see matters in that light. I think the situation results from the lack of coming together of those concepts. It was illustrated during today's debate by the relatively minor, indeed passing, references to protection of the public which figured in most of the speeches.

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I do not claim any kind of legal technical knowledge at all, although as a former representative of 80,000 fellow citizens, inevitably, like many others, I have gained a sense of their attitude towards these issues. It is not a campaign by the press that has generated the widespread feelings of unhappiness about the inadequacy of sentencing. It is a general and long-standing sense that persistent criminals--there is a very important distinction to be made between persistent criminals and those who only once or occasionally commit a crime--are a serious menace to society. Almost any police force will say that they believe that the greatest, quickest and surest effect on the level of crime in their area would be achieved by securing convictions for a small number of persistent criminals.

It is difficult to dismiss that kind of comment. I hope that, in examining the implications of this debate and the comments that have been made in reaction to the White Paper, the Government will consider very carefully the judicial and legal points of view, and in particular many of the technical comments which have been made about the possible working of some of the specific proposals. I hope that they will not be deflected from measures which will give greater reassurance to the public and, unless it can be argued to the contrary, are likely in all self-evidence to take more persistent criminals out of currency for longer. Nobody today has attempted to argue that taking more persistent criminals out of circulation for longer will not have a beneficial effect on crime levels. I am open to persuasion that that is not the case, but I believe that it is highly improbable. Certainly, commonsense would say that it is one of the practical measures that can be taken in order to deal with the volume of crime and indeed with the degree of insecurity, anxiety and suffering that the victims or potential victims of crime continually have to face.

When the White Paper was brought forward and my right honourable friend the Home Secretary published his proposals originally, there was a tendency to say that they were being brought forward purely for "political or symbolic reasons"--the phrase used by the noble Lord, Lord Windlesham, earlier this afternoon. I do not believe that is true.

In the case of any proposals of this kind, one has to consider their origins and genesis. Like all proposals, they come in some kind of political wrapping. But if the Government and Parliament will not listen to the long sustained views of what I believe to be the great majority of the British public, they are in danger of getting out of touch and, accordingly, of behaving in ways which do not carry the support of the public.

The last thing that I would wish to see is any kind of disagreement or row about such a proposal undermining the reputation of our legal system and judges. I hold them in the highest regard and everything that I have heard this afternoon confirms me in my view. But what is missing is a stronger ingredient in the dimension of the protection of the public. That is the title of the White Paper, yet it has received only the most cursory attention in your Lordships' House today. I feel that that balance is wrong. I hope that the Government will maintain a balance that we should all like to see.

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5.10 p.m.

Lord Lowry: My Lords, although there have been a number of intervening speakers, perhaps I may say with what pleasure and admiration I listened to the maiden speech of my noble and learned friend Lord Cooke of Thorndon, whom I am proud to call an old friend.

Your Lordships will not wish to see this debate as a dispute between the judges and the Government. Indeed, it is clearly not that kind of argument when one recalls that we have had the benefit of hearing from five very experienced former Home Office or Northern Ireland Office Ministers, including two who were distinguished Secretaries of State. The White Paper makes it easier for me to avoid the adversarial stance evident in some earlier statements by which I was quite shocked. We must now seek a solution which promotes both the public interest and justice.

Sentencing is a judge's function and, in relation to it, judicial independence from the executive is paramount. Indeed, in doing their duty judges should be independent of all higher authority but, without any sacrifice of independence, greater consistency in sentencing has been secured through the Judicial Studies Board and the positive role of the Court of Appeal in laying down principles.

A White Paper in 1990 entitled Crime, Justice and Protecting the Public, stated,

    "The independence of the Judiciary is rightly regarded as a cornerstone of our liberties".
The White Paper continued with a passage already cited by my noble and learned friend the Lord Chief Justice, which I need not repeat. I need only say, "Fine words, indeed." However, one might be excused for thinking that the ministerial statements which preceded the new White Paper strongly contradict the wise words which the Lord Chief Justice read out and which, in my opinion, were sound. I am only sorry to recall that the words were followed by an Act containing some provisions--happily of short duration--which tied the hands of judges in the direction of undue leniency.

The new White Paper attempts to rationalise earlier statements. It features minimum and mandatory sentences but it still enunciates an admirable general principle at page 3 which reads,

    "The Government's role is to provide the statutory framework for sentencing, and to ensure that the courts have the powers they need to impose appropriate punishment in individual cases".
I emphasise the words,

    "appropriate punishment in individual cases",
because that is the essence of good sentencing. I refer also to page 25 which states:

    "The purpose of the criminal justice system is to sustain the rule of law and to protect the public".

It should be noted that "the rule of law", as lawyers understand it, is a high ideal of justice and not a synonym of the expression "law and order".

I share the misgivings which have been expressed regarding minimum and mandatory sentences. I also foresee that the introduction of mandatory life sentences will devalue the effect of discretionary life sentences. However, I shall not repeat what has been said better by

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other noble Lords. There is just one point about mandatory sentences which I should like to make. Their object is to let the Parole Board decide how long--perhaps for life--violent and sex offenders should stay in prison after the expiry of their tariff sentence on the ground that they may still represent a danger to the public. That danger poses the real problem and is not catered for in our present criminal system, no matter how severe the sentence.

That is the only defensible reason for the mandatory life sentence proposal. As now proposed, it will involve a kind of adjudication by the Parole Board. But there are alternatives. Why not have a real adjudication by an experienced judge based on the latest evidence? If the Home Secretary is advised that an offender should, for the safety of the public, remain in prison, he could, before the tariff expires, apply to a judge, who need not have been the trial judge, for an order to that effect. The offender would be the respondent to the application. In that way a judge would decide the issue; there would be no need for an artificial life sentence; the executive would not be responsible, even at second hand, for releasing or retaining the offender; and the dangerous accusation of executive detention without trial could not be raised. I have not thought this suggestion through but I would be more than content if my noble and learned friend on the Woolsack could indicate that the Government are willing to contemplate alternatives to this mandatory life sentence system.

It is difficult to comment usefully on certain points until the precise words of the Bill, if there is to be one, are before the House. It is eight years since I passed sentence or reviewed a sentence on appeal so I shall not consider the actual figures proposed as minimum sentences or the conditions which are to bring them into play.

There is just one more point I want to mention because I think it is very important to the standing and independence of the judges and to the achievement of justice. I am conscious that I am returning to a point already well, and no doubt sufficiently, made by my noble and learned friend Lord Donaldson but I do not apologise beyond that. The White Paper recognises "genuinely exceptional cases" in which the court will have discretion not to pass the mandatory minimum sentence. It then says:

    "This is intended to allow for occasional quite unforeseeable circumstances where it would plainly be unjust and unnecessary to impose the mandatory sentence".
I heartily approve of the principle, assuming that we are to have mandatory sentences. But I strongly dissent from the very narrow way in which it is expressed by the words "quite unforeseeable circumstances." I regard that as a quite sinister method of softening the compulsory sentencing process. It is not at all difficult to foresee circumstances in which it will be inappropriate to impose the mandatory sentence. But what we are told by the White Paper, if the Bill should reflect its words, is that all those cases, because we could foresee them, will not count. Secondly, circumstances might have to arise only once and thereafter they would presumably be foreseeable.

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Of course if the minimum sentence idea is accepted, we do not want a formula which sets it at naught. Nevertheless, some much more flexible words must be found if judges are to be able to do their duty properly.

Finally, if indeed there is to be legislation, let us ensure that its provisions promote a status and an independence of the judges which will be worthy of the noble and learned Lord who, with such an exemplary sense of duty, initiated this debate.

5.19 p.m.

Baroness Rawlings: My Lords, I, too, would like to add my heartfelt tribute to the noble and learned Lord, Lord Taylor, and my regrets at the circumstances of his early retirement. He is a man for whom I have great admiration and I am most grateful to him for the opportunity to debate this White Paper, Protecting the Public.

I rise to speak with a certain reticence, as an ordinary member of the public, in a debate with so many learned, distinguished and experienced Lords. As the Home Secretary says in the Foreword to the White Paper,

    "The first duty of government is to maintain law and order: to protect people's freedom to walk safely on their streets and sleep safely in their homes".

I have read the paper carefully. I believe that its aim is genuinely to reduce crime. It covers three areas: burglary, rape and drug dealing; all of which, I am sure your Lordships will agree, are serious crimes. In the short time available I would like to talk only about the second; namely, rape. I shall not quote statistics or go into technical details which I do not know, but briefly speak as, so far, the only woman and from personal experience.

My first job was with the London County Council. I know that that dates me a bit. I worked for the Children's Care Committee in Stepney, Bow and Poplar during the day and early evenings, visiting families with various problems. They lived mainly in high-rise buildings or very modest housing. I was still in my teens. Yet never once was I frightened to walk alone or visit people in their flats. I never even locked my car. Today, I would be quite wary to walk alone any distance at night, even around Belgravia, as several of my friends have had horrible experiences.

We all know that crime has always existed, but I do believe, unlike many of your Lordships in this debate, that the proposals in this White Paper are much needed and are an encouraging step forward. I was prompted to speak today as a modest layman--not part of the legal system--by an interview I read several months ago in the Daily Telegraph, not the tabloid press. It shocked me. It reminded me of yet another horrific piece on the front page of the Daily Telegraph yesterday. It said,

    "Mother raped in front of children".
A man held a knife to this 28 year-old woman's throat at 3 p.m., mid afternoon--not in the middle of the night in a dark alley as a noble Lord mentioned--very close to the road in a rural area. She walked with her two year-old son and six months' old daughter. This happened when parents and children from the nearby

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schools could have passed by. It is frightening that he was prepared to carry out such violence in broad daylight, at a time and place when he could easily have been discovered.

The noble and learned Lord, Lord Taylor, writing in The Times today, says,

    "I have no doubt that what mainly deters criminals is the real likelihood of detection and arrest".
That is surely not the case here. In the interview that I read several months ago it was of a young Italian girl, a businesswoman, who was about to return to her family in Italy for a visit. This should have been a happy occasion. She would no doubt chatter and smile and tell them everything she had been doing, except for the fact that she had just been headline news in every British newspaper. The rape of their daughter would, she said, destroy her parents' peace of mind for the rest of their lives. They are firm Catholics, with an upbringing that included no open discussion of sex, let alone of sexual abuse. They live in a place where rapes are terrible things you read about only in the papers. The article stated,

    "The news would wreck them as it nearly wrecked her".

That young girl stood in the witness box at the Old Bailey and gave evidence against her attacker, a paranoid schizophrenic who raped her three times at knifepoint four days after being discharged from a psychiatric unit--only four days afterwards. She listened and trembled uncontrollably to him being given five life sentences.

That 27 year-old businesswoman is the sort of victim that justice needs but seldom gets. Not only was she prepared to testify in open court, but she also gave evidence in a way that should fill every other victim of sexual assault with courage, and every rape counsellor with hope.

Although more than enough to secure a conviction, the story of terror, violence and degradation that emerged in court was far from the whole story. It barely touched on the extraordinary battle of wills--one mad, one sharpened by fear--that went on between the rapist and his victim once he had beaten her in to physical submission. Had she not won the psychological struggle and outwitted him, she believes that she would not have escaped from her flat alive.

She was attacked in her own home one evening in April 1995. As she answered a knock at the door, a 6ft. 4in. psychopath burst through the security chain and slammed her against a wall. The first signal that he had picked on an unusual victim was when she started to put her Thai boxing skills to the test. When she refused to give in to his demands for sex, he became increasingly violent and finally threatened her with a kitchen knife. From that moment, she said, she switched tactics,

    "as if my head were operating outside my body".
Throughout the rest of her ordeal, she never stopped talking to him. Every second she was searching for a plan of escape. Passivity never occurred to her. He raped her forcibly three times, the knife resting on a pile of clothes beside him. Twice he agreed to her plea that he should use a condom. The third time, he refused and taunted her afterwards:

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    "You are a Catholic. You'll be pregnant and you won't be able to have an abortion".
She said that she knew within minutes that he was unbalanced, and is scathing about a system that allowed him to be released while still a danger.

After the sex part was over, she knew that she had to survive by her brain if she was going to get out alive. She worked at getting him to trust her. It was still light outside. She knew that she had to act before it was dark. She fled to the door and escaped. He would have killed her, but somehow she kicked him off. There is no limit to people's appetite for survival. He did not manage to kill her. Although slim, she is striking. She said:

    "I'm tired, I feel old, I think I used up the energy of a lifetime that night. I don't like myself now. I used to be so confident; I'd never been scared of anything".

Now she does the most ridiculous things, like sleeping in her tracksuit and refusing to put on a nightie in case she needs to escape into the street. If she goes down to the corner shop for a pint of milk, she checks all the rooms immediately she returns, afraid of being outside, afraid of being inside.

    "You feel so alone after something like this, because although people sympathise, they cannot understand. You are locked in a cell of your own fear...I will never be the same person again",
she said. I have left out the more gruesome details on purpose.

We have a legal system that is highly respected, and rightly so. It is one of the best in the world. I would not dream of contradicting the figures or facts of the noble and learned Lord, Lord Taylor, but the cases of which I have spoken are real and are still happening. In 1994, 217 offenders were convicted of a second serious sexual or violent crime, like rape or murder. Unless they get a life sentence--

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