§ 7.28 p.m.
§ LORD CHORLEY rose to ask Her Majesty's Government how the system of suspended sentences brought into being by the Criminal Justice Act 1967 is working. The noble Lord said: My Lords, the suspended sentence system has now been in operation for three full years, which means that a very large number of suspended sentences have been passed, and I think the time has obviously come when there should be a provisional review of the working of those sections of the Criminal Justice Act which brought this system into operation. In fact from the beginning the system has been very much under fire, and the weight of the artillery blast has, increased with recent months.
§ Your Lordships may have seen in the last edition of the Sunday Times two articles, one, very much of a journalistic character, by a Mr. Lewis Chester, headed "The Law Reform that Went Wrong". The appendant article to that was by the distinguished head of the Institute of Criminology at Cambridge, Professor Radzinowicz. I cannot say that I thought much of the journalism, which was superficial and one-sided, and it seems to me unfortunate that a responsible weekly paper like the Sunday Times should publish superficial and one-sided material of this type. I would exempt from these strictures Professor Radzinowicz, whom I have known for a long time, but I think that even his article merits some criticism. Possibly he did not choose the heading to his article, "Foreseeable Failure", but it seems to me quite absurd to write off an experiment of this kind as a failure after as short a period as two years.
§ I do not wish to go into the arguments adduced by Professor Radzinowicz. The main one seems to be that the system was introduced from the Continent, which would seem to be, coming from Professor 918 Radzinowicz, a rather peculiar argument. He goes on to say that it has failed all over the Continent. I am quite sure that a substantial number of criminologists would not accept that view. Only yesterday I was talking to three well-known criminologists, among whom was the Reader in Criminology in the University of London, who disagreed very much with Professor Radzinowicz's view. And even from Professor Radzinowicz's own article it appears that those Continental countries which first adopted this system of suspended sentence realised that it was more appropriate as just one more weapon in an armoury of penology. They took the course of making it that, since when it has done rather better. Nor is it true to say that in no other part of the world has it succeeded. I am told that in Israel, where it has been working for some years, it is an unqualified success, and the Israeli Government is very satisfied with it.
§ I mention this article, my Lords, because it is symptomatic of the attacks which are being made on the suspended sentence, and it seems to me most unfortunate that a responsible head of an Institute of Criminology should condemn a system because it has not worked perfectly from the word "go". It is a new and complicated system, and at the best, even if it had been given as good a send-off as I think it deserved, there would undoubtedly have been serious teething troubles. I am not so pessimistic as to its future as Professor Radzinowicz is.
§ Mrs. Shirley Williams, at the time she was at the Home Office, in May of last year, addressing a meeting of probation officers, said that during the two years following the introduction of the system the number of suspended sentences meted out had been some 64,000, and that during that period only 13,000 defendants had been convicted again leading to the removal of the suspension. Of course, many of that total of 64,000 had not then come to the end of their periods. The Answer given to my noble friend Lady Wootton of Abinger only last week, when the Minister gave an estimate of 36 per cent. as being the likely proportion of failures in cases of suspended sentence, is obviously a rather more serious figure than the one given by Mrs. Shirley Williams. It is an estimate; but even 919 if correct it shows, in my submission, a considerable amount of success for the system, because it means that something like two-thirds of the people given suspended sentences may be expected to keep out of further trouble. Anybody who has had practical experience of dealing with criminals will know that that is a pretty good proportion. These men, instead of being in prison, are at work and adding something to the economic prosperity of the community.
§ My optimism is certainly a qualified one. I am not for a moment suggesting to your Lordships that all is completely well with the suspended sentence system. How far it is not well hardly anybody outside the Home Office is in a position to judge. The Home Office, with its admirable statistical department, which has added so much to our criminological knowledge over the last few years, is the only institution that is in a position to give us an unbiased opinion about the working of the system and to give us, in effect, an authoritative and scientific survey of the whole situation. That is really the origin of my Question, because I think it is very important indeed, with so much half-baked criticism being published in the Press, that we should have from the Home Office a really authoritative review of the position. Therefore, my Question is intended more to elicit information than for the purpose of making a critical attack.
§ I told the Minister, the noble Lord, Lord Windlesham when he asked me to indicate the main points of my speech, that I was not going to initiate the sort of mini-debate which has been referred to once or twice by the Procedure Committee. But the more I have been working on this speech the more it has tended to lead into something in the nature of a mini-debate, because I have for a long time been an adherent to the school of the suspended sentence, and I have been very much interested both in getting it on to the Statute Book and in the way in which it has been working since it got there. But so far as I make an attack it will not be an attack on the present Government, who really have not had time to operate the new system. If anything, it would be more an attack on my own friends in the late Administration, who I think might have done better 920 in the Statute. But my arguments about that will appear later in my speech. I should perhaps note at this point that, in answer to the noble Lord's letter, I sent him a number of questions which I hoped he would be in a position to answer, because it was my view that if we could have the answers to those questions they would throw a good deal of light on the whole situation.
§ I suppose that in introducing this subject I ought to remind your Lordships of the main features of the suspended sentence, although I am sure that all those who have stayed to this late hour, to take part in or to listen to this discussion, will be familiar with them. So I shall not take more than a few minutes over this part of the matter. The suspended sentence was of course introduced—although there were inklings of it in the Criminal Justice Act of 1948—by the Criminal Justice Act 1967, in which there are three sections dealing with the matter.
§ Section 39 establishes the suspended sentence. It says that in cases where a sentence of imprisonment of not more than two years is meted out by the court the court shall have the power to suspend the operation of that sentence for a period of not more than three years and not less than one year. But that suspension is on the condition that during that period of suspension the prisoner does not commit a further offence of a serious character; that is to say, an offence which carries with it a sentence of imprisonment. If he does so, then the original sentence becomes reactivated, and the court which deals with the new offence must effect the reactivation. That is done in different ways, which I need not go into in detail: mostly it is by simply ordering that the suspension be removed and that the original sentence shall become operative, but there are other possibilities. And any new punishment which the second court feels is required because of the second crime will be added. That is the important point, because it means that the deterrent aspect of the suspended sentence is underlined by this provision of the Act.
§ My Lords, this is the gist, what one might call the theory, of the suspended sentence. But its operation, as provided for in the later subsections of Section 39, 921 have to be looked at, because those subsections throw light on other very important provisions of the system. It is here, I think, that the difficulties which the system has encountered so far are to be found.
§ Section 39 is a long and complicated section, taking up no less than two full pages of the official Statute. It is essential to examine at any rate part of Section 39, because it is the section which establishes the conditions under which it appears to me that, to some extent, the system has gone wrong. I think the gravamen of the whole matter is the fact that this section removes from the court its discretion to send a man to prison at once in a case where the sentence is within the six months to which of course magistrates' courts are limited in their powers of punishment. That means that this business of six months is aimed at magistrates' courts.
§ This ukase, as it has been called, means that in the ordinary case which comes before a magistrates' court, if the magistrates want to impose a term of imprisonment at all, the only way they can do so is to give a suspended sentence; in other words, by means of this six months ukase the Act creates a strait waistcoat. The reaction against this decision was strong from the very beginning, both on magistrates' benches and indeed in. Parliament. That this was going to fetter magistrates in the exercise of their duties and deprive them of a discretion which they had had in the past, was perfectly clear; and when this Bill was before your Lordships the noble Lord, Lord Brooke of Cumnor, moved an Amendment to delete this particular provision.
§ I moved another Amendment which was intended to provide the Government with an alternative which I thought they could accept with advantage to themselves and which would remove this difficulty. I was strongly supported by the noble and learned Lord the Lord Chief Justice, and also by my noble friend Lord Royle. But the Government would not accede to this solution. Had they done so, I think there would have been no difficulty. Lord Brooke's Amendment was accepted here, but when the Bill went back to another place the decision was reversed.
§ It became quite clear from Lord Stonham's reply for the Government to 922 these Amendments, that the Home Office were greatly concerned with the problem of the prison population. I think the noble Lord made it very clear that one of the main considerations that the Government had in mind in taking away this discretion from magistrates was the large number of short sentences that were clogging up the prisons. This was a quite understandable point of view, but it seemed to me quite wrong that such a new and important penological method should be introduced for a side purpose of that kind. The Lord Chief Justice indicated in his speech that he thought it quite essential that the prison population should be reduced. It can therefore be said that there was a case for adopting this fundamental principle of the Act as it was passed; but in my view it has to some extent led to its going wrong.
§ Reaction among magistrates up and down the country has been continuously against this provision. They find that it hampers them greatly. At the last Annual General Meeting of the Magistrates' Association in October of last year, a resolution was passed calling on the Government to restore their full discretion in cases of this kind. In my view, most of the teething troubles which have befallen the system flow from this particular defect.
§ I wish to say just a few words about some of these defects which appear to me to be important. The natural inference which benches would draw from this command, from headquarters, so to speak, from the very Government themselves and from Parliament at Westminster—this command that in all the cases which came before them meriting imprisonment they were to apply the suspended sentence—was that they should apply it lavishly. The figure of 64,000 in two years which Mrs. Shirley Williams mentioned, and which was also given by the Home Secretary himself, I think, in answer to a Question in another place in May of last year, is a very large number, a much larger number than I and most of those supporting this new method ever expected to see imposed. It is that, I think, which has really run away with the system. To some extent it has got out of control as a result of the tremendously large number of suspended sentences which have been handed down.923
§ The result has been perfectly clear, that suspended sentences have been awarded in a large number of cases in which they ought not to have been awarded. This has been reflected in the substantial falling off which I understand has taken place in the number of fines imposed in place of suspended sentences. The number of probation orders made over this period has been reduced substantially, too. This is most unfortunate, because the probation order is one of our great contributions to penology. That this provision should have led to such a decrease is most unfortunate. I am not sure, but I think there has also been a falling off in the number of conditional discharges. I should be grateful if, in due course, the Minister could give us the figures in all these matters. At first sight a conditional discharge has something of the appearance of a suspended sentence, but it is really altogether different when looked at more carefully. It is much more flexible, and it does not actually impose imprisonment. A suspended sentence does. Therefore, as a result of this ukase, I think the system got off to a bad start and it has not really effectively recovered.
§ Another result which was prophesied by the noble Lord, Lord Brooke of Cumnor, and indeed by myself, has been that magistrates' benches, when they have had to deal with cases where obviously an immediate prison sentence was called for, have been either committing defendants for trial or sending them forward for sentence, thus incurring a great waste of time and expenditure of money. It was obvious that this would happen. I think it is happening a great deal. If the Minister has any material on this aspect I should be grateful if he would let us have it.
§ In an interesting speech made in 1969 at the Annual General Meeting of the Magistrates' Association, Mr. Crossley, the magistrates' clerk at Uxbridge, gave a number of interesting examples of the sort of thing that happens in this connection. His court covers Heathrow, where all sorts of offences are committed—such as thefts from passengers and the bringing in of children who are not entitled to come in under the Immigration Acts. How are you to deal with these 924 people if you cannot send them to prison? As Mr. Crossley said, the result has been that after a few months of feeling that they were dealing with an impossible situation, the magistrates, quite naturally and sensibly, began to send these cases forward to quarter sessions. Mr. Crossley, when he was making this speech to the Magistrates' Association, said that it had a salutary effect.
§ This brings me to the exceptions to the ukase. The Act does not lay it down that in every single case the suspended sentence should be applied by the magisstrates. There are a number of important types of case, such as assault, threats of violence, indecency cases, and some others, where the magistrates are still free to send a man to prison at once. I think it would be better to remove the fetters altogether, but if the Government do not feel like going as far as that, they could effect a very substantial improvement in the situation by considerably increasing the number of crimes in regard to which the discretion is not removed.
§ There is an interesting article in the current number of The Magistrate, which is the Magistrates' Association official journal, by Mr. Brian Leighton, who has been in the forefront of the movement for suspended sentences ever since the beginning. He points out that there are several of the motoring offences, some of which indeed I instanced in my speech at the Committee stage on this Bill in your Lordships' House—for example where a man whose licence has been taken away from him or suspended is found driving a motor car—and he asks: what can the magistrates do with him effectively except send him to prison and at once? However, under the law as it now stands, you cannot do that. Moreover, the terribly severe sentences which we were discussing here the other day for drug offences are going to be applied in all these cases because as the law stands at the present time a magistrates' court has to give a suspended sentence of, say, six months for being found with cannabis. In a number of cases it might be quite a venial offence. And yet what court in a case of this sort, which is so much in the newspapers, is going to content itself with giving a sentence of six months and suspending it, as it is now required to do? This sort of instance could be multiplied a great deal.925
§ This situation should be looked at, and I should have thought that it would be wise to give the Home Secretary the right, subject possibly to Negative Resolution procedure, to add to the number of cases, because it is very difficult to foresee all the types of case where an exception is called for. Obviously the draftsman of the Act thought he was dealing with all the most important cases. In fact, he was not. Although some of us suggested cases which have, as I understand it, proved to be important, the Government were not prepared to make the necessary alterations.
§ Quite a number of cases where suspended sentences have been applied by the magistrates' court have been reviewed in the Court of Appeal. I could spend a long while on this subject, but I will not take up your Lordships' time. I think it is enough to say that the Court of Appeal evidently feel that a large number of benches lack a clear idea of the basic purpose of the system and how to go about using it. The noble and learned Lord the Lord Chief Justice—I wish he could have been here to advise us to-night—on a number of occasions has indicated the way that benches ought to go about using the suspended sentence.
§ I would ask the Minister whether the Home Office has ever drawn these matters to the attention of benches. Very often when a new Act of Parliament comes out, especially if it is of a complicated character requiring a good deal of knowledge and thought on the part of the people who are to administer it, the Department concerned issues guidelines. They are not legally compulsive but they are of very great help. I must say that I feel that magistrates' benches very much lack this sort of guidance on the suspended sentence. So far as I know, nothing ever came from the Home Office to help them, nor, so far as I know, have these statements from the Court of Appeal ever been brought to the notice of the benches. Of course, the good clerk of a bench reads about them and brings them to the notice of his magistrates, but there are a large number of benches in the country, and some clerks are better than others. I would ask your Lordships to remember that the suspended sentence system is a very complicated one, which is completely new to the part-time magistrates 926 who administer the criminal law of this country.
§ Another point, which I shall only mention briefly but which I think is worth notice, is that the suspended sentence system has resulted in a tendency on the part of benches to give longer sentences, because they hope that the deterrent effect will be operative. That comes out in the article in the Sunday Times. I think it is correct, from what I have heard from much more authoritative sources, that a bench which would perhaps give three months in the old days, will now say, "We will give him six months, and that will teach him not to get into trouble again". That is a natural result, but it is not a good one. The result has been, in a rather interesting phrase of Mr. Crossley's in his address, "to fix a minimum limit for unsuspended sentences".
§ These are the main points in relation to the sections. I am not going to deal with the position which arises when the new offence is committed and the man comes up before the second bench. There are a number of interesting, and some of them important, points which could be raised. I hope I have said enough—although I rather doubt it because Parliamentary time is difficult to come by—to persuade the Government to introduce the short amending Act which I am sure is required. If, by any chance, they were to come to that decision, then obviously they must give careful consideration to the recent Report by the Committee under the noble Baroness, Lady Wootton of Abinger, on non-custodial and quasi-custodial sentences. The Wootton Report raises the question of the advisability of probation orders being made in these cases of suspended sentences.
§ At this stage I ought to point out—perhaps I ought to have done it earlier in this speech—that at present the law prevents a probation order from being made at the same time as a sentence of imprisonment is awarded, whether it is an ordinary sentence of imprisonment or a suspended sentence. Obviously, in the case of an ordinary sentence of imprisonment the point does not arise, but in the case of the suspended sentence there is an argument for giving the man the help and encouragement of a probation officer. But the framers of the Act deliberately did not take that course. On the whole, I think they were right, and I would still 927 argue, and will argue in a minute or two, that in the great majority of cases, at any rate, that is right.
§ The Wootton Committee (and obviously great attention must be given to what they say) think there is need for "compulsory supervision" in these cases of suspended sentences—compulsory supervision not necessarily through the Probation Service—and I think that is a point which ought to be noticed. I should be very loath to see the Probation Service having this enormous new amount of work put upon it. It is seriously stretched at the present time. I am not now actively engaged in magisterial work, but I am sure that the position is worse to-day than it was when I was active, not so long ago; and a new caseload of this kind might easily break the back of the Probation Service. The Secretary of State should certainly not decide to bring in probation orders in connection with suspended sentences without full consultation with, at any rate, the senior officers of the Probation Service.
§ But quite apart from this extremely important practical argument, a majority of those of us who have been protagonists of the suspended sentence have always considered that it should be meted out only to candidates who were quite clearly suitable for it. The candidate who is suitable for a probation order is ex hypothesi not the person who should go to prison; certainly not at that stage in his career. So that if a probation order is the right order to make, then it ought to be made and a sentence of imprisonment should not be given. That is why I regard the falling off in the making of probation orders since the Act came into force as possibly the most unfortunate part of the whole business.
§ The sort of persons to whom I successfully meted out suspended sentences on a number of occasions as a chairman of quarter sessions (I have already told your Lordships in the past that the Court of Appeal stopped me and other chairmen of quarter sessions by saying that we had no power to do it) were men who were obviously not suitable for probation orders: they were rather middle-aged or even elderly men, who were in employment, and with whom the threat of being called back and put into prison 928 at a later stage worked very powerfully indeed. I do not think we ever did it without its succeeding.
§ I would not say that that was the only type of case to which a suspended sentence should properly be applicable. The man's personality, the sort of career he had, the work he was doing—all these things have to be looked at. It might well be that even a comparatively young man in a white-collar occupation, where freedom from gaol meant a tremendous lot, would be much better put on a suspended sentence than another type of man of the same age who was engaged in a very different type of work. We have always felt that the suspended sentence could be effectively applied to a rather small number of types. If I had to analyse them, I would say that they should satisfy two requirements. First, they should be people who because of their age or career, or other matters, were not so likely to benefit from the assistance and advice of a probation officer as the ordinary first offender; and, secondly, they should be people who were likely to be susceptible to the deterrent of an imposed sentence.
§ Obviously, the fact that you have been sentenced and will be put into gaol if you go wrong again will operate much more powerfully on some people than on others, and the suspended sentence ought to be reserved for those it will deter. However, I am sure that even some of those could be helped by support from a wise adviser. In my time I have had many friends who were prison visitors, and it is people such as these who might very easily help a man of that sort. If some scheme could be devised to keep such support out of the Probation Service, it would be a very valuable contribution. Obviously, if the Government take the steps which I have suggested, this unexpected growth of suspended sentencing will be very much diminished and it should become much more feasible to operate the system in a reasonable way.
§ If the Government are not prepared to do that and a tremendously large number of people, especially young people, are going to be given suspended sentences, then there is quite a strong case for the proposal of the Wootton Committee, to enable the court in a large number of cases to make a probation 929 order at the same time as it imposes a suspended sentence. As I understand it, a suspended sentence plus a probation order has worked very well in Israel—I do not have much detailed information, but I am assured by a knowledgeable friend that that is so. So it may wall be that if we are to continue on our present lines, the advice of the Wootton Committee and the possible bringing in of the Probation Service might be very valuable.
§ My Lords, I think I have covered all the points that I wished to bring to the attention of the Minister. While I have not, perhaps, specifically asked him for answers to all the nine or ten questions which I sent to him, I hope that during the course of his speech he will be able to satisfy me.
§ 8.6 p.m.
§ LORD WADE
My Lords, the noble Lord, Lord Chorley, has performed a very useful service in asking this Question on suspended sentences, and I should like to add a few words in his support. After the three years which have elapsed since the passing of the Criminal Justice Act 1967, I think we are able to make some assessment of its operation with particular reference to suspended sentences, and I propose to devote my few comments to magistrates' courts.
I certainly do not wish to attack suspended sentences. Their concept is sound, and that should be stressed. The suspended sentence is intended to act as a deterrent, and it was hoped that it would lead to a reduction in the prison population. I hope that the noble Lord, Lord Windlesham, will be able to tell us to what extent that hope has been fulfilled. The noble Lord, Lord Chorley, used the expression "qualified optimism" and I think that the word "qualified" is right. There are a number of reasons for that. First, there are a certain number of cases where the deterrent is not effective and the result of the suspended sentence is simply to put off the day when the convicted person has to go to prison. This is piling up trouble for the future, so far as the prison population is concerned. If the suspended sentence fails, it adds to the potential number of those who will ultimately serve a prison sentence. As I think the noble Lord, Lord Chorley, pointed out, a suspended sentence may 930 be longer than the sentence which would have been given if there had been immediate imprisonment. If that is so, it will unfortunately, in the long run, tend to increase the prison population rather than otherwise.
But apart from the cases of failures, there are other considerations which are relevant to this Question. A court may be inclined—I am thinking of the magistrates' courts—to impose a suspended sentence as an alternative to a conditional discharge. There is a very great difference between the two and it is most important that the distinction should be maintained. The correct approach of the court in sentencing—and no doubt everyone will agree with me—is to eliminate all available remedies other than imprisonment. I should be the first to admit that the number and scope of penalties available are limited. The noble Lord referred to serious motoring offences, and I do not think we have yet found the right answer for dealing with them. In many cases a fine is not adequate; yet I am not satisfied that imprisonment is the right way to deal with the motorist who commits a serious motoring offence. That is a problem which has still to be solved, but I should be straying rather far from the Question asked by the noble Lord, Lord Chorley, if I were to pursue that.
What I was proposing to say was that the court must first eliminate all other available remedies and then decide, if it is to be imprisonment, whether it should be immediate or suspended. But here one comes to the question of the freedom of discretion in a magistrates' court. Of course there are circumstances when it is right and proper for the legislators to lay down some limitations on what a court may or may not do when sentencing, but as a general principle I think it is right that the magistrates' courts should have an unfettered discretion. The magistrates know the circumstances of a particular case, and that is of great importance in deciding whether or not there should be a suspended sentence, in deciding whether in a particular case the suspended sentence will act as a deterrent to further offences. It seems to me that the objections which have been made—and they are fairly widespread objections to the Act as it is at present—are that the mandatory suspended sentence 931 is too limiting on the freedom of a magistrates' court to exercise its discretion.
I am advised by others who have had much greater experience of magistrates' courts in recent years than I have that there are other anomalies which have arisen. Owing to this limitation on the power of the court to impose an immediate sentence, there is a tendency to commit to quarter sessions for sentence. I think that point was made by the noble Lord, Lord Chorley. Then there are problems arising where there are two offenders, one of whom, by reason of a greater degree of complicity, is deserving of a more serious penalty, the other, on account of a lesser degree of culpability, deserving of more lenient treatment. In the one case, the court may impose a suspended sentence and in the other a fine. The suspended sentence should be regarded as the more serious penalty, but I am advised that there is a tendency to regard that as getting off and the other as not getting off, which is in fact the wrong way round. Then there is the case of the older and the younger persons who have been convicted. In the case of the older person a suspended sentence may be decided upon by the court, and in the other case the younger person (it might be a man or a woman), might be sent to a detention centre. The one who is sent to a detention centre will regard himself, and will be regarded by some of his fellows, as having received the more serious penalty than the one who is given a suspended sentence.
The important point is not to increase the number of prison sentences. I would be the last to wish to see the prison population increased, but it seems to me that the value of suspended sentences depends on selectivity in its application, and the mandatory provisions tend to remove that element of selectivity. If there is to be any amending legislation. I hope that this point will be kept in mind.
§ 8.15 p.m.
§ LORD GARDINER
My Lords, as a member of the Government who introduced the Criminal Justice Act 1967 and who are therefore responsible if something has gone wrong here, I am personally grateful to my noble friend Lord Chorley for asking this Question this evening. I 932 thought then, and I still think, that it is a useful power for a court to have to be able to suspend a sentence. I was then doubtful of the wisdom of the mandatory provisions, and I am rather more doubtful now. There have lately been a number of articles in various legal papers as to whether this system is working properly or not—in the Justice of the Peace of January 16, in the New Law Journal series and in an article in the Sunday Times. As to the latter, I am thinking not so much of the part written by Professor Radzinowicz as the main article written by Mr. Lewis Chester. Headed, "Prisons: The reform that went wrong", it says:Thousands of people are now in jail because of a liberal reform designed to keep them out. The introduction in 1967 of suspended sentences has had the extraordinary effect of increasing the prison population".My Lords, in the issue of the New Law Journal of December 10, in an article headed, "The Suspended Sentence—What has gone wrong?", there are more detailed facts than I have seen elsewhere or, I expect, than are outside the Home Office. It is an article by Mr. Sherlock, of the University of Kent. His figures—and the noble Lord, Lord Windlesham, can no doubt tell us whether they are right—show that if one takes the cases in the magistrates' courts in the two years before the beginning of the Act (that is, 1966 and 1967) and compares them with the cases in 1968 and 1969, one finds that the proportion dealt with by a prison sentence was, in 1966, 8 per cent. and in 1967, 7 per cent.; and if one includes the sentences suspended, the proportion has now gone up to 12 per cent. in 1968 and 15 per cent. in 1969. So far as fines are concerned, before the Act 50 per cent. of the cases used to be met by fines. That proportion fell in 1968 to 46 per cent., though there has been a rise since then. So far as probation is concerned, in both the two years preceding the Act the percentage of cases dealt with by probation was 17 per cent., in 1968 it fell to 15 per cent., and in 1969 to 10 per cent. That is a drop of nearly 50 per cent. in the number of cases dealt with by probation.
In this context a lot has been said about the justices, but I think it should be made plain that the higher courts appear to have reacted in the same way. In the higher courts, in the two years 933 before the Act came into force the proportion of offences met by a prison sentence was 42 per cent. and 41 per cent.; since the Act, it has increased to 52 per cent. and 54 per cent. Fines have decreased. In each of the two years before the Act, 20 per cent. of the cases were met by fines, and this proportion fell in both 1968 and 1969 to 13 per cent. Probation, again, which was 16 per cent. and 17 per cent. before the Act, has now fallen to 15 per cent., and last year to 13 per cent. So there can be no doubt at all that suspended prison sentences have been used where previously men would not have gone to prison at all, because they would have been either fined or put on probation.
I think one can understand the reason for this. A suspended sentence is a simple thing. Justices know that too high a proportion of fines are not collected; they have great regard for their probation officers, and do not want to overload them; and a suspended sentence means that, after all, a man is not going to leave court to go to prison. It is a very easy thing to pass a suspended sentence, but I think there is a considerable body of evidence that it is being used in the wrong cases. So far as probation officers are concerned, I have been told by justices that their probation officers have spoken to them regretting very much that probation cannot be combined with a suspended sentence, so the person concerned does not get any support.
What the writer of this article, who dug out all the facts, says is:Many probation officers and justices' clerks believe that it is the suspended sentence itself that is the trouble. Wrongly applied, it can have the reverse effect of that intended and send people to gaol for offences that would not normally carry imprisonment. The effect is not only to increase the numbers sent into custody, but to increase the average length of sentences—giving a cumulative rise in the average prison population.…Where things have gone wrong, it would seem, is that the courts (both the higher courts and the magistrates' courts) have looked upon the suspended sentence as a new weapon in their armoury, instead of a modification of an old one. It is clear, from the wording of s. 39(1) of the Criminal Justice Act 1967, that a suspended sentence is simply a prison sentence whose operation is held over on certain inscribed conditions.However, many courts use the suspended sentence as an admonition without being realistic about the chances of the sentence being brought into operation. It is now all too easy 934 for a person to find himself in prison for committing two minor offences which previously would not have attracted prison sentences. A person convicted of a petty theft, for example, might be given a sentence of three or perhaps six months imprisonment suspended for a period of two years. The suspended sentence almost certainly predetermines the passing of a prison sentence for a second offence within the period, even though a petty one. This is all the more so since the second offence would probably be tried in a different court from the first.My Lords, I do not want to take up more of the time of the House. If something has gone wrong it ought to be put right. It is the sort of thing that can be put right by a one-clause Bill; but the Home Office know so much more about all the facts that I await with great interest what the noble Lord, Lord Windlesham, is going to say. There is one other fact stated here: namely, that in 1969when the activation of suspended sentences imposed in the previous year would influence the statistics, the number received into prison with sentences over six months and under three years increased by 3,750 compared with 1968. There has never previously been a rise in a particular group comparable with this, and it is precisely in this area that one would expect to find the activated suspended sentence in operation."I express no final view, my Lords, I doubt whether anybody outside the Home Office at present has the full facts. We shall be grateful if the Government can assist us, by telling us, first, what is their view of the facts, and, secondly, what course they propose to take.
§ 8.24 p.m.
§ LORD MORRIS OF KENWOOD
My Lords, it is now possible to assess, to some extent at least, the practical workings of the suspended sentences incorporated in the Criminal Justice Act 1967. Two important points have emerged. First, the type of person who is given a suspended sentence is often an inadequate person and, even more often, one who is at risk. Nevertheless, there is no provision for any supervision during this period of suspension of the prison sentence or any portion of it. Granted that someone who is already on probation can continue to be supervised; but this does not deal with those who are not already on probation. The one who really needs help so that he will not commit another offence is left without any guidance at all. Courts can impose a fine at the same time as the suspended sentence. Often they do this solely so that the defendant 935 shall not think that he has got away with his offence. Secondly, it is reasonably clear that a suspended sentence should be discretionary and not mandatory, which it has to be unless the offence is one of violence or the defendant has already been in custody for a previous offence.
One of the purposes of the suspended sentence was to avoid sending to prison a first offender or one who would be sent into custody for the first time, often for a short period; in other words, to keep out of prison those who can be saved from such a punishment and also in order that our gaols, which are already grossly overcrowded, should not be asked to look after prisoners for such a short period as four months—the six months sentence less remission—during which it is impossible to give them proper training and rehabilitation.
It is interesting to see what has happened. Of suspended sentences passed by magistrates, one in four has been activated; that is, those convicted have gone to prison for committing another offence punishable by imprisonment during the period of the suspension. Of sentences passed by the higher courts, one in two have been activated. It may appear surprising to some that the judgment of the magistrates appears to be better than the judgment of the higher courts. However, as a magistrate I should in fairness say that the more hardened criminals appear in the higher courts and therefore are more likely to commit other offences. While speaking of the higher courts, may I say that one of the drawbacks in their sentencing may be that on some occasions they do not have a social report to consider before passing sentence. I have proof of this. Thus, they punish someone for an offence and do not deal with the offender. I hope that this matter can be drawn to the attention of the Lord Chief Justice, as a social report on the offender's background, character and personality is surely a basic need for fair sentencing.
There are some offenders who are affected by heavy fines and others who are not. The record shows this. None the less, suspended sentences, where applicable, are mandatory. I want to refer again to defendants who have the 936 idea that with a suspended sentence they have got off. This is another failure of the mandatory sentence. If courts had the option to impose a sentence, it would have a much stronger effect if the offender was not aware that the sentence of imprisonment which could be passed would automatically have to be suspended. This is something which the benches could make clear at the time they imposed such sentences.
We know that magistrates should not make suspended sentences unless they decide they would have made an immediate sentence of imprisonment. But magistrates are human; on occasions they must surely use the suspended sentence as an alternative to some other form of non-custodial sentence. Then the next court before which the offender appears on an offence punishable by imprisonment is bound to activate the sentence, except where the very limited reasons for not doing so allow the court not to activate it. The curbing of the discretion results in persons being sent to prison who might otherwise be at liberty. These are some of the reasons why I believe that the law should be amended and I hope that steps will be taken speedily in this direction.
§ 8.29 p.m.
My Lords, we have heard this afternoon a debate in which practically every speaker, indeed every speaker, has taken the view that something must be done in order that an unsatisfactory position, which has arisen in respect of suspended sentences, might be remedied. It is true that we do not have before us the final figures which will be available of the criminal statistics to be presented later on, but I am sure that the Government will be able to supply the necessary evidence either one way or the other of how the system is working.
The Act was introduced with the best of intentions by a very humane person—I refer of course to Mr. Roy Jenkins—who had considerations of humanity and understanding in mind and hoped that the step he was taking would produce satisfactory results. I am quite satisfied that he, and all of us who supported the Bill at that time, felt that the introduction of this system would be a useful addition to the prevention of crime and would help 937 to limit the prison population. From the evidence which has been produced from various sources, it appears that it has not worked in that way.
The article to which my noble and learned friend Lord Gardiner referred was very interesting. What impressed me most about the article in the Sunday Times was a history which was given as follows:Just under a year ago a young man was convicted of fraudulently attempting to withdraw money from the Post Office. As the sums involved were small and he was penitent, the courts adopted what seemed a humane policy.Had there been no alternative to imprisonment he would probably have been sent down for a sharp salutary six months. However, as a result of the Criminal Justice Act of 1967 which introduced the suspended sentence, there was a beguiling alternative.The young man was given a suspended sentence of a year. He left court a free man and with every prospect of staying that way, provided he kept out of trouble during the three year 'operational' period. He was happy. His defence lawyer was happy. The court felt it had been merciful.A few months later the same young man momentarily 'forgot himself'. After having a bit too much to drink he had a row in a betting shop over the value of a bet. He lashed out angrily and broke a pane of glass over the counter. Its value was £4 10s.Back before another court as a man with a 'record', he was naturally treated with a little more severity than would have been normal for such an offence. He was jailed for two months for malicious damage and, in accordance with the provisions of the 1967 Act, the 12-month suspended sentence was activated.He is currently serving 14 months for what he feels was an isolated loss of temper. He burns with a sense of outrage, and it is easy to see why. Had the question of suspension never arisen he would most likely be at liberty having served six months for the original offence and perhaps a month for the second.On the other hand, he was treated at every stage with elaborate fairness by the courts and they, in the end, only did what they had to do.And in many ways what we would expect them to do.
My Lords, a case of that sort indicates clearly that there is something wrong, that something has gone awry. Although I would not be prepared, as my noble and learned friend Lord Gardiner also was not prepared, to say offhand what exactly should be done, in the circumstances it seems to me that we should be given particulars of what the situation is like now; and that the points that have been raised, 938 particularly about the position in magistrates' courts, should be considered. After all, magistrates are accustomed to deal with cases, and now they have to take a course of training in order to be able to understand what are the duties of a magistrate. They deal with 98 per cent. of the criminal cases in this country. They have the experience and intelligence to understand and be able to weigh up the circumstances of each case which comes before them. I believe that the suspended sentence should be available, but I think that magistrates should be given a discretion in these matters so as to be able to decide whether a suspended sentence is an alternative to all the other possibilities before them and not be compelled to give such a sentence.
I do not entirely agree with my noble friend Lord Chorley in one respect. I believe, and I think that magistrates believe, that, together with the suspended sentence, some form of supervision, such as putting the person concerned on probation, would be effective. I have not been a magistrate but I have practised in the courts. I have found that magistrates are people of understanding and I think they ought to be given that discretion. I am quite certain that those who introduced the Act in the first instance would be prepared to consider the position with regard to suspended sentences anew, particularly in view of the fact that their idea of what the result of introducing it would be may now have been disproved. I hope that will be given extremely careful consideration and that the Government may suggest what provisions they have in mind for dealing with the matter.
§ 8.38 p.m.
§ LORD WINDLESHAM
My Lords, I should like to apologise to the noble Lord, Lord Chorley, for not having been in my place when he began his speech. His Question was called a little earlier than had been anticipated. None the less, the hour is fairly late and I think it is unfortunate that such an important and well-informed debate on a subject of considerable topical relevance should come at the end of a rather long day's proceedings. The noble Lord, Lord Chorley, was good enough to give me advance notice of some of the points he intended to raise and I will do my best to answer these and the other questions 939 which have been asked during the debate, on the basis of the information available to me.
One advantage of such a well-informed debate is that there is no need for me to include very much explanatory material in my reply to the questions asked this evening. So I shall omit any description of the form of the sections of the Criminal Justice Act 1967 which deal with suspended sentences. They were described by Lord Chorley and referred to by the noble and learned Lord, Lord Gardiner.
The noble Lord, Lord Chorley, discussed the aim of the Government of that day in introducing the suspended sentence; and he referred particularly to the practical consideration of reducing the pressure on prison accommodation. From what I have read of the debates, that undoubtedly seems to have been one of the reasons. But I think we should be wrong to overlook the words, chosen I think with some care, of the noble Lord, Lord Stonham, when he referred in his Second Reading speech on the Criminal Justice Bill, to this part of the Bill. He referred to his belief thatthe shock of appearance and trial before a court, and the infliction of a sentence, albeit suspended, will restore many offenders to rectitude without recourse to prison".—[OFFICIAL REPORT. 10/5/67, col. 1437.]Thus it was hoped, in cases where the protection of the public did not make it imperative, to relieve the offender of the social hardships inseparable from actual imprisonment—loss of employment, disruption of family life, exposure to a criminal environment and problems of settlement on release. A further consideration, no doubt, was that short prison sentences are costly to the community. The cost works out at approximately £24 per week—more than £1,000 per year. Then there is the additional cost of supporting the family while the breadwinner is serving a term of imprisonment.
The use that has been made by the courts of the suspended sentence has, I think, exceeded the expectations of many people. In each of the first two years of operation, that is to say, January 1, 1968 to December 31, 1969 (and all that I have to say will refer to those two years), about 32,000 persons were given 940 a suspended sentence of imprisonment; and about three-quarters of these sentences were imposed by magistrates' courts. The figure of approximately 32,000 persons per year receiving a suspended sentence compares with just over 34,000 persons given an unsuspended sentence of imprisonment, and just over 31,000 put on probation. The number of persons fined, of course, was much larger than that.
The noble Lord, Lord Chorley, and others who have taken part in the debate, have referred to the criticism of the mandatory provision when the Bill was under consideration in this House, in another place and subsequently. I should like to thank the noble Lord for the compliment that he paid to the Home Office Statistical Division, but to couple it, I am afraid, with the comment that the statistical information that we have available does not enable us to give a full answer to all the noble Lord's questions. I can answer a good many of them, and I can throw some light on the others; but I cannot claim that we can give him a complete answer to each of the fairly long and very relevant questions to which he has referred in his speech. I can say, however, that the number of offenders received into prison for the first time, or with no previous conviction, was substantially lower in 1968 and 1969 than in the years immediately preceding, and part at least of this welcome fall in reception figures is likely to be due to the introduction of the suspended sentence.
Among those who serve both in the higher courts, as has been pointed out by the noble and learned Lord, Lord Gardiner, and in magistrates' courts there seems to be a fairly widespread view that the mandatory provision has hampered their work and, so far from being extended, should be abolished. My right honourable friend the Home Secretary recognises the strength of this view, which has been put to him by both the Lord Chief Justice and representatives of the Magistrates' Association.
The noble and learned Lord, Lord Gardiner, and the noble Lord, Lord Janner, have asked what prospect there is of legislation if there are indications that the scheme has not worked out in the way its original supporters had hoped. There are a number of considerations to take into account. First of all, there 941 is the need to look at the facts very carefully indeed and to weigh up the evidence. We have only two years' figures available at the moment, but we shall have the 1970 figures—the third full year—in the coming months. Then we have to keep in mind (and this has been referred to already) the possibility of other changes which are being currently considered. The most topical of these is the whole range of non-custodial penalties, or semi-custodial penalties, which were proposed by Baroness Wootton's Sub-Committee of the Advisory Council on the Penal System.
Next, there is the perennial argument (the noble and learned former Lord Chancellor must have come up against it many times while he was on the Woolsack) for and against legislating item by item, or alternatively, grouping changes together into a more comprehensive measure. Noble Lords will not expect me to be able to make any definite commitment tonight as to the Government's intentions. But what I can do is to repeat a recent Answer, given in another place by my right honourable friend the Home Secretary, to a Question on November 5, 1970. My right honourable friend referred to the provisions of the Criminal Justice Act, 1967, which, as he said,with certain exceptions require magistrates' courts to suspend sentences of imprisonment on first offenders and offenders in certain other categories. I am keeping under review these and other provisions relating to the suspension of sentences of imprisonment with a view to possible future criminal justice legislation".As regards the effect of the suspended sentence on sentencing practice, there seems little doubt that there has been a significant increase in the use by the courts of imprisonment, if both immediate and [...] ended sentences are taken together [...] The percentage of convicted offenders given a prison sentence rose from 2.5 of all convicted offenders in 1967 to 4.1 in 1969. It has been calculated that, of the offenders given a suspended sentence in 1968 and 1969, only something between two-fifths and three-fifths would, but for the suspended sentence, have received a prison sentence.
It is clear that many suspended sentences have replaced non-custodial penalties. The figures (as the noble and learned Lord pointed out when he was quoting from the article in the New Law 942 Journal, which I have seen and studied) show a reduction both in the number of those placed on probation and in the proportion of convicted persons dealt with by means of a fine. The use of the suspended sentence in this way is not what the framers of the Act intended. This has been said several times in the debate. Perhaps I might put on record that the first of these consequences—the falling off in the use of probation—was forecast in this House by the noble Lord, Lord Hamilton of Dalzell, who speaks with considerable experience on matters concerning magistrates' courts and the Probation Service, when the Criminal Justice Bill was being debated on Second Reading in this House in 1967. It is clear from the wording of Section 39 that the court is expected first to pass a sentence of imprisonment, when merited, and then, but only then, to consider whether or not it should be suspended. The noble and learned Lord the Lord Chief Justice has emphasised that the court should treat the suspended sentence not as a "soft option" but as a prison sentence, not to be imposed until all other possible alternatives, in particular probation, have been considered and eliminated.
I was asked by the noble Lord, Lord Chorley, in his very full opening speech, about guidance to magistrates. The statement of the noble and learned Lord the Lord Chief Justice (this was in the case of Regina v. O'Keefe) was widely publicised in the national Press, in the legal journals, and it was repeated again by the noble and learned Lord, Lord Chief Justice outside the court. It has been referred to by my colleague the Parliamentary Under-Secretary of State at the Home Office as recently as last week in discussing this subject with a group of magistrates in the North of England. As regards the Home Office giving formal advice to magistrates on this subject, this raises some difficulties. The Secretary of State has no power to direct courts on the sentences that they should impose. This must be a matter for the judiciary and for magistrates, and not for the Executive. The noble Lord, Lord Chorley, knows very well the limit of the Home Secretary's responsibility here, which is to make sure that the magistrates are properly and fully informed as to the content of the law. I can confirm 943 that the Home Office circulated in the normal way an Explanatory Memorandum about the provisions of the Criminal Justice Act in 1967. I have no doubt that in this process of drawing wider attention to the remarks of the noble and learned Lord, the Lord Chief Justice on how the suspended sentence should be used, the Magistrates' Association, magistrates' clerks and others who follow these matters will study what has been said in this debate this evening by the noble Lord, Lord Chorley, and other noble Lords.
I am in rather a dilemma this evening because I know that your Lordships would like a good deal of information, which I have; but, at the same time, it is late and I do not want to make a long speech and take up your Lordships' time unnecessarily. I will, therefore, try to cover the main points. If, in the process, I leave out the answers to a number of questions, my Department and I will go through Hansard with considerable care and will write to any noble Lord who has raised a question which I fail to answer through shortage of time.
The noble Lord, Lord Chorley, asked whether or not the mandatory provision has led to an increase in the proportion of offenders convicted at magistrates' courts who are committed to quarter sessions for sentence. The statistics do not throw much light on this question. The proportion of convicted persons committed for sentence in 1968 and 1969 under Section 29 of the Magistrates' Courts Act 1952 showed a slight increase over the corresponding figures for 1966 and 1967. The increase was of the order of 2,000 persons per annum, but part of this may well have been due to annual variations, including the kind of offender being dealt with by the courts. For these reasons it is not possible to say with any certainty whether and to what extent the mandatory suspended sentence might have been a contributory factor.
The noble Lord, Lord Morris of Ken-wood, speaking with experience as a magistrate, and also the noble Lord, Lord Chorley, asked about the use of fines in combination with suspended sentences. We know that the courts sometimes combine these two sentences, just as a fine is sometimes combined with a sentence of immediate imprisonment. The matter 944 has been before the Court of Appeal, who have held that it is a proper sentence. This was in the case of Regina v. Leigh. In one case, Regina v. King, it was suggested that it was sometimes necessary to combine the two, lest the person given a suspended sentence regarded it as a "let off." At the same time, the court warned that if the fines were to be combined with a suspended sentence, there was a need to make sure that the offender had the means to pay the fine; otherwise, non-payment might lead to a second term of imprisonment, in default of payment, for the same offence. The figures readily available do not show how common the practice is.
My Lords, I now turn to the question of breaches of suspended sentences which have been referred to by several noble Lords. The number of persons subject to a suspended sentence who were convicted of a further offence, punishable by imprisonment, was nearly 4,700 in 1968, and nearly 10,500 in 1969. Because of the variable length of the period of suspension these figures cannot be directly related to the number of suspended sentences imposed in each year. The number of persons failing is expected to continue to increase until it levels off, not before the end of this year, at about 42 per cent. of all persons receiving a suspended sentence. In 1968 and 1969 about 86 per cent. of offenders who breached a suspended sentence were committed to prison, the great majority of these being required to serve in full the term of the suspended sentence.
Let me move on to the effect on the prison population. It is true that when the suspended sentence was introduced it was expected that its introduction would lead to a substantial and permanent drop in the prison population. Had suspended sentences been imposed only in cases where, irrespective of the suspended sentence provision, a prison sentence would otherwise have been imposed, a permanent fall in the prison population would to some degree have been inevitable. But it has not occurred. There was an initial drop, but it is calculated that the size of the prison population now is about the same as it would have been if the suspended sentence had not been introduced. The number of persons received into prison is a fifth to a quarter less than it would otherwise have been, 945 but there has been an increase in the average length of sentence. This is probably because, when an offender subject to a suspended sentence commits a further offence, not only is the suspended sentence brought into died, but the courts usually add a consecutive sentence for the further offence.
The noble Lord, Lord Chorley, also asked me about the Government's reaction to the proposals of the noble Baroness, Lady Wootton of Abinger, on non-custodial and semi-custodial penalties and, in particular, to the recommendation that the courts should be given the power to combine the suspended sentence with a compulsory form of supervision. The House may recall that in the debate on prison overcrowding on December 2 I announced our reaction to some of the recommendations in the Wootton Report. At that time I said that this recommendation was one of those still under consideration; and so it remains. We recognise the attraction of this proposal to the courts; and it is not difficult to construct cases where a combination of these two orders would make good sense. As the Sub-Committee recognised, there are arguments both ways, in particular about the impact which the proposed new power would have on the traditional idea of probation—in other words, the consequences of seeking to combine a punitive measure with a measure of support.
The noble Lord, Lord Chorley, also made the interesting suggestion that a sentence of imprisonment might be part served and part suspended; for example, after serving three months of a two-year sentence the offender would be released with the rest suspended. This is certainly a novel suggestion which deserves some thought. At this stage I will make only two comments. First, the objects of any arrangement on these lines would be different from the objects of the suspended sentence as we know it, which is intended to keep offenders out of prison altogether. In its effects Lord Chorley's suggestion would have some affinity with parole, but it would differ from parole in many respects, not least that in the case of parole early release from sentence is entirely a discretionary matter resting on careful assessment 946 of the likelihood that the offender may respond to it. Second, with experience of the suspended sentence as it now exists in mind, we should have to consider the likely impact on sentencing practice. In particular, it would be necessary to look very closely indeed at any possibility that the introduction of this provision might lead to a greater tendency to impose relatively long sentences because the greater part would be suspended.
To sum up what I have said in reply, my Lords, the extent to which the courts have used the suspended sentence suggests that they regard it as a useful addition to their powers. They have felt that some difficulty has been caused by the provision requiring sentences to be suspended in certain categories. The extent to which the suspended sentence has replaced sentences other than imprisonment gives ground for concern. The object of introducing the suspended sentence was to keep offenders out of prison, especially if they were without a bad record and had not committed an offence requiring a long sentence. It might be said that the fact that the prison population is estimated to be about what it would have been if the suspended sentence had not been introduced is an indication that the suspended sentence has not fulfilled the expectations that existed when it was introduced. On the other hand, the fears that have been expressed that the suspended sentence is filling the prisons do not appear to be justified. The suspended sentence, as I have said, is being kept under review and our mind is open as to whether modifications or adjustments might usefully be made in the future.
My Lords, I hope that this account of the operation of the suspended sentence has been of some value to noble Lords. The final thought I should like to leave with your Lordships is that this is the kind of debate about which we can be particularly thankful that we have such a speedy and accurate reporting service as the Hansard reporters. I have quoted a lot of figures; the noble and learned Lord, the former Lord Chancellor, has quoted other statistics. This is the kind of debate which I believe is read by a small but informed number of people who take a particular interest in this 947 subject, and therefore to have the information available in permanent form is especially useful.
§ LORD CHORLEY
My Lords, I know that I have no right to speak again, but I am sure your Lordships will permit me to thank the Minister for his very full and informative reply.