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Lord Williams of Mostyn: This is a matter of some importance and I shall deal with it at greater length than would otherwise be the case because I recognise the noble Baroness's underlying concern. This amendment would give those who have been recalled on extended sentence licence an opportunity to make written representations on an annual basis. We agree that offenders who are made subject to extended periods of supervision on licence should not find themselves recalled to prison for what might be a long period of time--as the noble Baroness said--without any recourse to challenge their continued detention. We believe that the existing provisions provide adequate opportunities for representations to be made. I can assure the Committee that an offender recalled while on an

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extended period of supervision is to be treated in the same way as any other recalled licensee, and that includes the right to make written representations about detention and the right to apply for release on parole.

Clause 47 inserts a new Section 44 in the Criminal Justice Act 1991 which makes provision for extended sentences. It will mean that the same period of imprisonment will be available, followed by a considerably longer period of post-release supervision. The provisions as they already stand provide for this. All offenders on licence who are recalled to prison in the circumstances specified by the noble Baroness under Section 39(1) or (2) of the 1991 Act, which will include those recalled during an extended period of supervision, are entitled to make written representations with respect to their recall, and the Secretary of State has a duty to refer such representations to the Parole Board. This is provided for by subsections (3) and (4) of Section 39. In addition, subsection (3) provides that an offender who is returned to prison shall be informed of the reasons for his recall and of his right to make representations. All written representations must be referred to the Parole Board for consideration, and Section 39(5) provides that if the Parole Board recommends that the offender should be released immediately, the Secretary of State shall give effect to that recommendation.

Section 39 does not provide for such representations to be made on an annual basis. However, under Section 35(1) of the 1991 Act, all long-term prisoners are entitled to apply for release on parole once the half-way point in their sentence has been reached. Offenders who have an extended sentence of four years or more are to be treated as long-term prisoners, by virtue of subsection (7)(b) of new Section 44. For the purposes of applying for release on parole under Section 35(1), the half-way point of their sentence is taken to be the half-way point of the period served in custody, the custodial term. As any recall to prison will always be after that half-way point, because that is the earliest point at which the offender may be released in the first place, this means that an offender recalled while on an extended licence will be eligible to apply for release on parole at any point during the extension period. If an application is turned down by the Parole Board, the offender may apply again the following year. Therefore offenders given an extended sentence will be in exactly the same position as those who are recalled to prison while serving a normal sentence. I have taken a little time to explain the position as I recognise the legitimate concern that lay behind the probing amendment.

6.15 p.m.

Baroness David: I thank my noble friend the Minister for his full and careful response. It obviously needs some study and I should like to talk about it with those who were anxious for me to table this amendment, and decide whether it will be necessary to return at the next stage of the Bill. I believe that it will probably not be necessary. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 47 agreed to.

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Lord Windlesham moved Amendment No. 218A:


After Clause 47, insert the following new clause--

Mandatory life sentence for second serious offence of wounding or causing grievous bodily harm

(". In section 2(5) of the Crime (Sentences) Act 1997, paragraph (d) shall cease to have effect.").

The noble Lord said: This amendment, which has cross-party support, relates to one of the most outdated and widely criticised provisions of the criminal law and, not for the first time, questions its appropriateness as a basis for triggering mandatory sentences of life imprisonment under the Crime (Sentences) Act 1997. Like the noble Lord, Lord Williams of Mostyn, who has just spoken, I wish to speak for a little while--unlike the admirable brevity of the noble Baroness--because the introduction of mandatory sentences into our criminal law for the first time in modern times other than for homicide offences is a fundamental change and one of profound importance.

As a preliminary comment, it is generally agreed that reform of the 137 year-old statute defining offences against the person, passed in 1861, is long overdue. It has been criticised by the Law Commission for its "antique language", its "irrational arrangement" and the likelihood that a law which is muddled, irrational and unclear--those are the words of the Law Commission--is almost certain to produce injustice. Those sentiments have been echoed by the Home Secretary in his foreword to a consultation paper published as recently as two weeks ago. In that document the Government accepted the case for reforming the Offences Against the Person Act 1861, and published a draft Bill together with the consultation paper.

This recent development adds force to the argument which has been rehearsed previously that it is no longer appropriate or tenable to include the Section 18 offences of wounding, or of causing grievous bodily harm, with intent, in the list of offences in the 1997 Act which automatically attract a sentence of life imprisonment on second conviction. I remind your Lordships that there are eight offences, or categories of offence, which trigger the mandatory life sentence on second conviction. I refer to offences of violence or sexual offences. However, we are talking about just one of that long list.

This is not a novel argument, nor should it have any party political overtones. If my amendment sounds familiar to the Committee, it is because it is in substance almost identical to one moved from the Opposition Labour Front Bench--I speak from the Opposition Benches this evening but not from the Opposition Front Bench--in the course of the Committee stage of the Crime (Sentences) Bill on 13th February 1997. The mover of that amendment was eloquent and concise. He said,


    "It seems to us that wounding under Section 18 is of such a variable nature that it ought not to be a triggering mandatory offence".--[Official Report, 13/2/97; col. 372.]

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It is no surprise that the mover should be so eloquent and concise because it was none other than the noble Lord, Lord Williams of Mostyn, who I see is suffering from such prickings of conscience that he needs a glass of water to calm himself. I hope that he will reply to this amendment and not rely on his trusty friend the noble and learned Lord the Solicitor-General. The noble Lord knows perfectly well what the policy of his party was when in Opposition; it is identical with what I put forward now. I could quote extracts of the speech of the present Home Secretary, Jack Straw, in the House of Commons on 4th November 1996 on the Second Reading of the Crime (Sentences) Bill, but there is no need to embarrass the noble Lord further.

Of course it is true that some Section 18 offences of causing grievous bodily harm, with intent, are serious indeed. They are the most serious offences, short of homicide. Nothing should be taken as implicit in this amendment which detracts from that in any way at all. They rightly carry up to a maximum sentence of life imprisonment, not simply on second conviction but on first conviction if the gravity of the offence warrants it. But because of what the Law Commission has criticised so strongly and because of what the Government have now accepted--namely, the drafting of Section 18--at the other end of the scale of this same section is a large cluster of relatively minor incidents, not of causing grievous bodily harm, but of wounding, and not always with prior intent, since attempting to resist or prevent arrest is also included. As the noble Lord, Lord Williams, pointed out last year, a wound simply means a breaking of the skin. So it can have what he described as no more than a trivial physical consequence.

Although the law has been in an unsatisfactory state for many years, until 1997 the courts had discretion to distinguish between the seriousness of the offence and relate it to the sentence passed, whether on first or subsequent convictions. The most cursory scrutiny of some recent Section 18 appeal cases reveals sentences as low as six months, upheld on appeal for biting an opponent's ear during a rugby match. There was also a probation order, increased to six months' imprisonment by the Court of Appeal on an Attorney-General's reference. After careful scrutiny by the Court of Appeal, the court decided that a probation order was a touch too low and that the offence warranted a custodial sentence, but only of six months. The convicted person might already have spent a period in pre-trial detention and we do not know whether or not he needed to go straight to prison. Those are examples at the lowest end of the sentencing range. That is why I have brought them out in this debate.

The Home Office figures in the 1996 Protecting the Public White Paper, published by the previous government, cited an average length for all offences of wounding with intent to do GBH, in the Crown Court

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and the magistrates' court, as 3.2 years. That was the whole range up to very serious offences indeed, whether on first or subsequent conviction; 79 per cent. of convictions resulted in a custodial sentence.

Many of these offences, from the most serious to the least serious, have at least one characteristic in common. They are impulsive rather than premeditated. In addition to loss of temper in sporting encounters (the two examples I have cited already) there are incidents of road rage and numerous disputes at licensed premises as anyone who has had experience either in the courts or, like my noble friend Lord Belstead and I, of reviewing Parole Board cases is only too aware. I have left out of this catalogue my noble friend--if I may call him that, although he very properly sits on the Cross-Benches because of his judicial appointment--the noble Viscount, Lord Colville of Culross, who succeeded me as chairman of the Parole Board and preceded my noble friend Lord Belstead. So there is a trinity of former chairmen in the House this evening.

This is an extremely serious issue. It touches on one of the most fundamental sentencing issues before our community at this stage in our penal history. I invite the Minister to explain to the House: what is the rationale for persisting with the inclusion of such an undifferentiated category of offences which, as we all accept, varies so widely in gravity in the list of serious offences (that is how they are described) which trigger an automatic mandatory sentence of life imprisonment on second conviction?

At the very least, will the Minister consider replacing the present Section 2(5)(d) of the 1997 Act, which embraces all offences under Section 18, with the proposed new offence--in the Government's own Bill published with the consultation paper--of causing intentional serious injury, the most serious of the new categories of offences against the person? The noble Lord, Lord Williams, gave me a moderately helpful reply when I raised the implications of the reform of the Offences Against the Person Act 1861 during debate on the third day in Committee. I hope he will go further today.

Without holding up the proceedings of the Committee unduly, perhaps I may be allowed a final reflection. Penal policy in the United States has been blighted for nearly two decades by mandatory minimum sentences for repeat, or in some cases first, offenders convicted of certain violent crimes and drugs offences. For these categories discretion to treat each case on its merits has been removed from the sentencing courts. Blatant inequities have resulted. They are got round, and the system of justice has continued to function only by the highly undesirable device of prosecutorial decisions after plea bargaining in private as to the nature of the offence charged. The prisons have filled to overflowing, with more and more capacity added at huge expense each year. In 1995 there was a total of 1.5 million prison inmates in the United States, a rate per 100,000 of population five times higher than that for England and Wales; and our prison population was already at a high level in that year.

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Less than a year ago the introduction into our own law of mandatory sentences for non-homicide offences was a terrible mistake. It is one that will have far-reaching consequences. By accepting this amendment, the Government could begin to undo part of the harm done to our system of criminal justice. I beg to move.


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