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The noble and learned Lord said: My Lords, I am grateful for the opportunity to raise this Motion. I hope that I shall not be thought importunate in doing so, but I believe it to be of the first importance for me, while still holding the Office of Lord Chief Justice, to inform the House directly of the grave consequences which I believe would follow if the main proposals of this White Paper were to be given statutory effect. I therefore wish to thank the noble Viscount the Lord Privy Seal for his assistance in securing time for the debate this afternoon. There are a number of very distinguished Peers wishing to speak, so I shall be as brief as possible. I should, however, like to say how much I am looking forward to hearing the speech of the noble and learned Lord, Lord Cooke of Thorndon, as it is the first time he will have addressed your Lordships. His vast experience of the criminal law not only here but in New Zealand will I am sure make his observations particularly valuable to your Lordships.
Turning to the White Paper, I venture to suggest that never in the history of our criminal law have such far-reaching proposals been put forward on the strength of such flimsy and dubious evidence. The shallow and untested figures in the White Paper do not describe fairly the problems the Government seek to address. Still less do they justify the radical solutions it proposes.
But I wish to emphasise at the outset that my opposition to these proposals does not arise from any entrenched views on government policy, still less--although the press like to suggest otherwise--from any personal animosity towards the Home Secretary. I have, as he has acknowledged, supported a number of the measures he has introduced--for example, allowing juries to draw inferences from the defendant's silence, removing the requirement for corroboration, and fundamental reforms to the law of disclosure.
Furthermore, I have indicated qualified support for his proposal of "honesty in sentencing"; that is to say, for a closer correlation between the sentence passed by the court and the sentence actually served. But how this is managed requires careful thought--which it has not yet received. Simply to require the Lord Chief Justice by practice direction to preside over the general reduction of sentencing levels while Government Ministers are urging tougher sentences would cast the judiciary in the role of apparently thwarting the will of Parliament. Again, to make such a reduction without
Quite simply, minimum sentences must involve a denial of justice. It cannot be right for sentences to be passed without regard to the gravity, frequency, consequences or other circumstances of the offending. To sentence a burglar automatically to a minimum of three years' imprisonment on a third conviction is to take no account of whether he is before the court for only three offences or for 30, no account of how long has passed between those offences, whether they involved sophisticated planning or drunken opportunism, and a host of other factors. To impose a minimum sentence of seven years on those convicted for the third time of trafficking in proscribed drugs will simply fill our prisons with addicts who sell small quantities to support their own addiction.
Recognising the injustice of the proposed policy, the Government have come up with a proposed palliative measure. In each of the three categories of offence--serious sexual and violent offending, burglary, and drug trafficking--the White Paper now states that the court will retain the discretion to depart from the obligatory tariff in what are described as "genuinely exceptional cases". This saving clause did not feature in the original proposals for mandatory life sentences and has clearly been added to mitigate the manifest injustice of the policy. It does not do so. Simply to provide an "escape clause" for the most extreme cases of injustice will not do. It may give some reassurance and comfort to those concerned by the enormity of the provisions as propounded, but the result would be the worst of both worlds. Judges would not be bound to impose minimum sentences willy-nilly. They would be left with some discretion in exceptional cases. But what is an exceptional case? If the escape clause is construed restrictively it will have little effect. That is what happened when suspended sentences were confined to exceptional cases. They became in effect a dead letter. If, on the other hand, the escape clause is construed more broadly, it will be said that the judiciary is driving a coach and horses through the provisions of the Act and thwarting Parliament. More fundamentally, the proposal subverts the function of the court, which is to sentence according to the justice of each individual case, not to see whether it can be accommodated within a narrow exception and otherwise to take a sentence off the shelf.
The Home Secretary has pointed out that Parliament can, if it wishes, impose a regime of minimum sentences. Of course it can: there has never been any dispute about that. He also says that there would be nothing very novel about its doing so, because we already have a wide range of statutory maximum sentences.
There is a world of difference between a statutory maximum sentence, which defines the range within which a judge exercises his discretion, and a statutory minimum which prevents any proper regard being given to mitigating factors. Statutory maximum sentences assist in establishing a hierarchy of
The Home Secretary also says that there is a precedent for his proposal since there is a compulsory penalty of disqualification from driving upon conviction for driving under the influence of drink and drugs. I do not think driving a car is a fundamental human right. A licence to drive is a privilege granted by the state on condition that it will be exercised responsibly and safely. Its withdrawal is not in any way analogous with being put in prison for a substantial period.
I understand the very real public concern that a tiny minority of dangerous criminals with a history of serious offending may, under existing procedures, be released when they still represent an unacceptable risk to the public. Although the numbers who fall into this category are very small, I appreciate the danger they represent and I agree that we should address that problem. One approach would be to re-examine the recommendations of the 1975 Butler Committee for a reviewable sentence, or to look at alternative regimes used in other jurisdictions. But it is not possible to justify a wholesale changeover to a regime of mandatory sentences involving (among other things) doubling the number of life sentences passed annually by the courts simply by scaremongering about this very small number of offenders who could in any event be dealt with in another way.
The proposed minimum sentences for domestic burglary lack any sound basis. The figures quoted in the White Paper purport to show that the courts pay insufficient regard to the problem of repeat offending and that punishment is not increased for further criminality. But the figures are woefully flawed and simply do not show that.
First of all, part of the sample taken by the Home Office relates to that period before 23rd August 1993 when the judiciary was prevented by this Government's policy under the 1991 Act from taking any account of previous convictions or of any other offences save the most recent. To criticise judges for lenient sentencing when during that period they were prevented by statute from taking previous convictions into account is wholly unjustifiable.
Secondly, and contrary to what the White Paper states, even that partial and tainted sample shows that there is a significant increase in sentences for further offending: 59 per cent. of burglars received a prison sentence for their first offence; 71 per cent. for their second offence; and 75 per cent. for their third offence. Those who had already received custodial sentences for burglary recently faced an increase of 2.5 months for a second conviction and 5.6 months for a third conviction.
Thirdly, and much the most important, the figures do not and cannot take account of the enormous variety of criminal conduct encompassed within offences of burglary. Not only do burglaries vary from the opportunistic taking of a milk bottle to the systematic looting of a lifetime's possessions, but an individual conviction can include a number of other offences taken into account. It is for that reason that judges need the ability to tailor the sentence to the offence--to make the punishment fit the crime. If there is concern that sentences for burglary are inadequate, the Attorney General's power to refer unduly lenient sentences to the Court of Appeal should be extended to enable him to refer burglary cases.
In the past five years and within the life of this Government, there has been a spate of legislation in the field of criminal justice. In considering the present White Paper, I invite the closest attention of the House to the previous government White Paper of 1990. It merits scrutiny line by line. I quote:
Those words are not mine. They come from a Government White Paper some five years ago. They are self-evidently wise, fair and just. I ask the noble and learned Lord the Lord Chancellor why every one of those propositions of government policy so recently propounded is now to be jettisoned and replaced by its exact opposite. I beg to move for Papers.
Lord Windlesham: My Lords, the whole House will be grateful to the noble and learned Lord, Lord Taylor, for initiating this important and timely debate and to have done so in such an eloquent and forceful way. Further, I feel confident that I speak for the whole House when I say how much we regret his premature resignation from the Office of Lord Chief Justice of England on grounds of ill-health and how much we
As I reflected on the proposals before us today, I wondered about how far the Government collectively realised the full significance of the changes that were announced so unexpectedly by a single Minister on a party conference platform last autumn. It was policy-making by proclamation. The White Paper before us provides justification for a policy that had already been decided. There is only one departure of any substance in the White Paper and that is the one to which the noble and learned Lord, Lord Taylor, referred; that is, the qualification that the court should be required to impose a specified minimum sentence unless there are genuinely exceptional circumstances--referred to by the noble and learned Lord, Lord Taylor, as an "escape clause". I hope that the Lord Chancellor will be able to say something to the House about what he and the Government envisage will be the impact of that clause.
While we can all share the White Paper's stated objective of protecting the public and while we can all recognise the strength of public sentiment, I am bound to say that the essentially punitive strategy it sets out is, in my view, misconceived and likely to prove counter-productive if it is enacted.
I have two reasons for saying that. The first is scepticism about the effectiveness of deterrent sentences. In over six years on the Parole Board I saw case after case, including many of the most serious offences of violence, which had been committed on impulse or under the influence of drugs or alcohol. There had been no prior thought whatever of the consequences if the crime were to be detected--and only a minority of crimes are detected--and the culprit brought to trial. Even when crimes are planned in advance by identifiable professional criminals, often known to the police, it is the risk of detection and of conviction that counts for more in any calculation of the risks and benefits than the likely penalty.
The large majority of people who have studied criminality and the best ways of countering it, came to the conclusion that it is enforcement and detection that are more effective than deterrence. The statement made recently by the Commissioner of the Metropolitan Police, which a number of your Lordships will have seen, relating to improved detection rates in London is absolutely central to the effective countering of criminal offending.
My second ground for objection--one to which I have been asked to refer because I have made a detailed study of criminal justice policy in the United States--is the experience in America. Several of the proposals have direct United States origins: automatic life sentences for repeated crimes of violence or serious sex offences; mandatory minimum sentences for repeated offences of drug trafficking; and "honesty in sentencing" plagiarised from the US ideology of "truth in sentencing". With all respect to our American friends, many of whom will agree with what I am about to say, the United States is hardly the best place to look for instruction in well considered and effective criminal justice legislation.
America today is a society marred by mass incarceration on a scale which was undreamt of only a decade ago. There are now substantially more than 1.5 million people confined in federal, state and local institutions. It is far and away the highest number of prisoners per head of population anywhere in the developed world. The courts are overburdened; the costs are way in excess of the original calculations, where calculations were made; and violence is rampant. To follow down the same road would be profoundly mistaken.
One lesson stands out. It is that, because of their inflexibility, mandatory minimum sentences must distort the process of justice. How can it be right for the same sentence to be passed when aggravating or mitigating circumstances in which offences are committed vary so greatly? Inevitably cases will occur--and frequently do occur in the United States--where everyone involved believes that the mandatory penalty required by law is unjustly severe. The result is that juries may refuse to convict even though the accused would appear to be plainly guilty on the evidence before the court; and, as shown in every published evaluation, judges and prosecutors devise ways to circumvent the application of mandatory sentencing.
So the practical consequences of mandatory minimum sentences are shown not only in the vast and costly expansion of prison building and staff, which in America is already leading to reductions in other publicly funded services, as it would do here, but in the workload of the courts. Due to the reluctance of defendants to plead guilty where there are mandatory sentences, more than two and a half times more cases carrying mandatory penalties are now coming to trial than cases where the court has discretion. The result is that a chasm has been created, a chasm that worries many thoughtful Americans, between legislators who have enacted mandatory sentencing laws and who support them for political and symbolic reasons and the judges, prosecutors and other officials who have to administer them in practice.
It is no coincidence that virtually all of those in this country with first-hand experience of the administration of justice, and not simply the judges, are strongly critical of the sentencing proposals set out in the White Paper. If we want to avoid the adverse consequences of similar policies--remarkably similar policies--introduced for similar reasons in the United States, I suggest to the Government that the voices of those who do have first-hand experience are listened to.
Lord Williams of Mostyn: My Lords, the past history of custodial sentences in our country is a story, to a degree, of collusion between the courts, the lawyers and the press and the consequence of that collusion has been a lack of openness about the effects of particular sentences. That is something to which the Lord Chief Justice referred a moment or two ago as being a proper subject of inquiry and I agree. But that is not what this White Paper is about. It ought to be about improving public confidence in the administration of criminal justice in this country. It does not do that work.
I suggest that the Government's prime duty is to ensure the safety of their citizens. If that is the correct test, and I believe it to be so, this Government have failed. Only one crime in 50 is punished by our courts. In the past 17 years there have been 10 criminal justice Bills. Most of the claimed fundamental reforms have been discarded. Perhaps I may mention two at random. Unit fines were the grand remedy thrown away after the passage of a moment. As the Lord Chief Justice pointed out, there were directions to judges significantly to ignore previous convictions. Lawyers, full-time judges, part-time judges, of whom there are a number present in your Lordships' House, insisted to the Home Office at judicial seminar after seminar that that would not do. We were told that we were all wrong. We were right.
We insisted--and we still do--that a due, proper sentence needs to reflect, though it must not be entirely determined by, an offender's individual circumstances. A serial criminal is different in nature and quality when he falls to be sentenced, from a first-time offender. There is a point of principle to which the Lord Chief Justice referred. In one rather crude and unthinking sense, this is not a constitutional argument. It can be said, and it has been, that what Parliament determines the courts must fulfil. But there is an infinitely more subtle point that sentencing in a civil society should be flexible; that crimes with the same label, even domestic burglary, vary infinitely. In other words, it is the justice of the case that should be the engine that drives the sentencer and determines the sentence.
Perhaps I may give two examples. I prosecuted a determined professional burglar whose life's income came from preying on others. He terrorised people in their own homes; tied them up with electric flex so that they almost died. He did it on a number of occasions. He was convicted on several occasions and was subject, rightly, to a harsh sentence indeed. Put the burglar at the opposite end of the scale--the rather dim youth who puts his hand through the open back window of domestic premises and takes a loaf or a bottle of milk and does it three times. Is he now to be the automatic recipient of a minimum, mandatory sentence? That is not just; it is a perversion of justice and one which, I am sorry to say, is brought about on the basis of low motive.
The principle for which I contend and which I believe to be self-evident, is that the true interests of victims and therefore the wider interests of our society, are served by the individualisation of sentences. I had not myself thought that we lived in a totalitarian society or wanted to. As the Lord Chief Justice has said, there is a case for looking at the Butler recommendations, with possibly automatic but reviewable sentences for repeat rapists. But that review should be judicial or quasi-judicial, not--a million times not--executive. It should be subject to as much publicity as possible. The public have a right to know.
I turn to the reduction of remission. What is the consequence to be? We know, because the White Paper tells us: judges will take into account the abolition of parole and changes in early release arrangements--in other words, the sentence of which we read in our daily paper will be reduced. As the Lord Chief Justice said, this is a White Paper which prescribes shorter sentences as passed. To quote from page 43,
Of course, we welcome supervision after release. That is extremely important. Many of us on this side of the House have pressed for that for a long time. Will there be increased resources for the probation service, which is grossly overstretched at present? How is one to manage earned remission by virtue of positive good conduct in prison if one does away with the educational component in prison, which is what will happen if the cuts continue? Educational provision in Her Majesty's prisons will decline because the funding is being limited.
Perhaps I may say a word about pleas of guilty. How are they to be reconciled with automatic minimum mandatory sentences? There is a virtue in pleas of guilty. It has nothing to do with the ignoble point that the time of the court is saved or that public expense is lessened. It is much more important than that. A plea of guilty is the public acceptance of moral responsibility for the harm done to the victim. In a very deep sense, it is the beginning of moral recompense for the victim who has been wounded. What inducement will there be for anyone properly to be advised to plead guilty if we have minimum mandatory sentences, imposed by diktat from the Home Office and not considered on a reflective, informed basis by someone who has heard the evidence--as though knowing anything about the evidence might have anything useful to do with a just sentence?
Automatic life sentences are proposed for offences which include unlawful sexual intercourse with a girl under the age of 13 years, so a boy hardly older than that who commits the offence twice will have an automatic mandatory life sentence. That is in the White Paper. It is not an exaggeration. A pub punching or glassing which leads to wounding with intent, which may follow 10 years after the event of unlawful sexual intercourse, will involve a mandatory life sentence.
Bearing in mind the time constraints, I have highlighted only one or two matters at random. I believe it to be a pity--and worse, an infinite shame--that matters of this sort are dealt with on the basis of mottos at party conferences. That demeans our society.
I have only one last word, to which I believe myself to be entitled. The experience of the United States has been mentioned already and I respectfully agree with what has been said. The United States has some virtues and expresses noble principles. One of them is this:
Lord Lester of Herne Hill: My Lords, as the noble Lord, Lord Windlesham, said, the Lord Chief Justice deserves the gratitude of the whole House and, indeed, the nation. I believe that he will be recognised by future generations as the greatest Lord Chief Justice of this century. During the all-too-brief four years in which he has served in that high office, the noble and learned Lord has performed his daunting responsibilities with humanity, firmness and distinction--not only as a fine jurist, but also as a well-rounded sensitive human being whose sense of humour matches his sense of justice. Under the leadership of the Lord Chief Justice much has been done to repair the damage done to the criminal justice system by the notorious cases involving serious miscarriages of justice. Much has been done by him to restore public confidence. He has blown away cobwebs and encouraged a more open system of justice. I hope that he will permit me to say that during a period of anguished personal tragedy he has displayed the courage of a lion, seeking unremittingly to protect the independence of the judiciary against unwarranted executive interference without descending into the political arena.
Judicial independence is not some minor attribute of a civil society. It is a necessary condition of constitutional government under the rule of law. It can be preserved only if there are senior judges who are fearlessly independent and impartial and if it is nourished and sustained by Ministers and civil servants. Thanks to the appointments made by the noble and learned Lord the Lord Chancellor we are fortunate to have fearless, independent and impartial senior judges. The noble and learned Lord, Lord Cooke of Thorndon, whose maiden speech we eagerly await, is also an outstanding example. He is a brilliant, independent-minded Commonwealth judge whose presence in this House, as well as a member of the Judicial Committee of the Privy Council, will illuminate our jurisprudence and proceedings.
Most regrettably, sometimes the noble and learned Lord, Lord Taylor of Gosforth, has needed the courage of a lion in winter, having to take a public stand against a Home Secretary whose reputation will, I believe, be recorded by future historians as lacking the very qualities which we attribute to the present Lord Chief Justice.
If the sentencing proposals contained in the White Paper are introduced in their current form the most powerful and memorable speech of the Lord Chief Justice this afternoon will guide us as lawmakers in rejecting an interference with ancient English constitutional principles, originating long before the Bill of Rights of 1688 and now anchored in the international human rights codes by which this country is firmly bound.
My judicial experience in contributing to this debate is modest indeed: 10 years as an assistant recorder and recorder trying criminal cases in London, attempting the difficult task of imposing sentences consistent with the guidance given by the Court of Appeal (Criminal Division) and trying to make the punishment fit the crime. I do not say that the system is perfect. No one
But what is entirely contrary to principle, logic and common sense is a statutorily imposed system of automatic life sentences for serious offenders and mandatory minimum sentences for drug dealers and persistent burglars. The rule of law requires that legislative, executive and judicial actions which deprive a person of his liberty should be right, just and fair and not arbitrary, fanciful or oppressive.
Being mandatory in nature, the Home Secretary's system would authorise arbitrary and excessive sentencing, and preclude judicial assessment of the likely danger to the public in individual cases. It would vastly increase executive discretion and leave the Home Office to decide upon the effective length of imprisonment to be served by serious offenders. I believe that it would not deter but would encourage crime.
Where a mandatory penalty was prescribed for an offence, the court would not be able to take account of mitigating circumstances such as whether the defendant had potential for rehabilitation, his individual personal circumstances, a confession, a plea of guilty or repentance. To exclude from judicial consideration the circumstances peculiar to the defendant would obviously lead to manifestly unfair and disproportionate decisions in individual cases.
Judges would be obliged to set aside their unique working experience and their individual judgment. Sentencing would be determined by the name of the offence. As the noble Lord, Lord Williams of Mostyn, said, there would be perversions of justice: a young man breaking into two empty properties for a few pounds of scrap and a professional stripping out the contents of one home after another would both be committing burglary and would receive the same mandatory tariff. Yet the proposal would do nothing at all to increase the protection of society from a child sex abuser guilty of a crime which, though appalling, did not happen to come within the offence of rape.
The role of the courts in deciding whether a statutory penalty is proportionate and reasonable in individual cases is essential if citizens' fundamental rights are to be protected. The courts have ample statutory powers to impose life sentences on serious and violent offenders who endanger society. The White Paper proposals would remove that role of ensuring that the punishment fits the crime in all but the most serious and exceptional cases, on the basis, as the noble Lord, the Lord Chief Justice said, of ill-supported statistical claims and unfounded assumptions about penal theory. If these proposals were enacted, they would lead also to certain breaches of the European Convention on Human Rights, which requires effective judicial protection and control of deprivations of liberty.
The philosophy of the common law is, at bottom, the philosophy of principled justice combined with pragmatism. In Justice Cardozo's well chosen words, a judge has to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment. He is to exercise a discretion informed by tradition, methodised by analogies, disciplined by system, and subordinated to the necessity or order in the social life. The wise exercise of that discretion by our modern judiciary is essential to the good government of this country as a democratic nation of equal citizens whose rights and freedoms are effectively protected by the rule of law.
Lord Cooke of Thorndon: My Lords, in a former life I was president of the New Zealand Court of Appeal. The process of rebirth into your Lordships' House is, I can testify, novel and nerve-racking, despite all the surrounding kindness. I must ask your Lordships' indulgence as I begin to learn to walk here, and find myself speaking in the presence of both the noble and learned Lords, the retiring Lord Chief Justice and the Lord Chancellor.
One comes not in entire forgetfulness. In the past quarter of a century, sentencing patterns and principles in the UK and other Commonwealth courts have become noticeably more consistent and coherent. In large measure that has been due to the role assumed by successive Lord Chief Justices of England and their colleagues in delivering avowedly guideline judgments. In turn, academic scholars, such as Dr. Thomas of the University of Cambridge, have incorporated those in books and encyclopaedias of sentencing practice.
Sentencing problems are much the same in all developed countries, as are trends in crime. Currently, for instance, crimes of appalling horror and cruelty, such as mindless mass killings and collective abuse of children, seem to disfigure most allegedly civilised societies. The states of mind of the perpetrators are so abnormal that changes in sentencing policy may well have little impact. Yet the legislature and the courts must do their best to meet the problems. The available measures are necessarily limited. While the details of statutory regimes vary, there is much identity in practical substance.
So it is that in my court, when faced with the need to enunciate new guidelines or with some unusually difficult sentencing issue, one constantly looked to other jurisdictions in a search for guidance or suggestions; and to no jurisdiction more often than England, and in particular in recent years to judgments of the noble and learned Lord, Lord Lane, former Lord Chief Justice, and the noble and learned Lord to whom we owe this debate.
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