Crime and Courts Bill [HL]
Lord Elystan-Morgan Excerpts(12 years ago)
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Baroness Howe of Idlicote
My Lords, I support the approach of my noble friend Lord Ramsbotham to the whole of this schedule. We have been over this ground before. As the noble and learned Baroness, Lady Butler-Sloss, has pointed out, punishment is in the sentence. The important scenario is how that sentence is to be worked out for the rehabilitation of the offender, with the effort being to see that that offender does not return to the court. As we all know, all too often that is not the case.
My other concern is that we have had no result—again, this was mentioned by my noble friend Lord Ramsbotham —from the Government on the probation consultation. For us to be asked to make judgments at this stage without having in front of us all the facts about who will do a lot of this very necessary, specialised work, is not acceptable. Frankly, I do not want any of the alternatives that have been suggested but, if others are prepared to keep this whole section in and I had to choose, I would go for that suggested by the noble and learned Lord, Lord Woolf. Then it would be left to the judges to make the decision, which is the way in which we have in the past treated, and should continue to treat, the judicial system.
Lord Elystan-Morgan
My Lords, alongside those who have already spoken, I humbly subscribe my support for this amendment. If ever there was an argument on the part of government that has been shot through and shattered, this is it. If ever there was a piece of legislation where there was an overwhelming and unanswerable case against it, this, in my respectful submission, is it. I appreciate the argument put forward on 30 October by the noble Lord, Lord McNally, when he mildly, with considerable charm, chastised me. He said that it is wrong to argue that a Government should take a view which is different from the policy that has been established by judges over a long period of time. I think I do him fairness in summarising it in that way. He must be right. Parliament is sovereign and supreme. Judges do their best within the limits set down by law, but they can—and should, on occasion—be overruled by Parliament. That is what Parliament is about.
However, I believe that there should be a qualification to that rule: Parliament should never do that, and certainly should never circumscribe the discretion of judges, properly and justly used, unless a case had been made for that, and that case would rest on facts. In my submission, this case does not rest on facts at all. It rests much more on some form of political prejudice. The noble Lord, Lord Ramsbotham, on 30 October, quoted a speech made by the Prime Minister on 22 October dealing with this particular matter. These were the words used by the Prime Minister on that occasion:
“‘At every single level of sentence this Government is getting tougher ... we are toughening up community sentences too. If you are on a community sentence you will be supervised-you will be properly punished-you will be forced to complete that sentence’.”.—[Official Report, 30/10/12; col. 523.]
It seems to me—and I made the point in a general way on the previous occasion—that essentially the Prime Minister was talking about including some element of hurt in a sentence. That is not the same thing as punishment.
The noble and learned Baroness, Lady Butler-Sloss, has already made the point that the fact that a person, with the sanction of the law, is enjoined to do something that he may not wish to do, is of itself a punishment. He is subjected to the sovereignty of the court in that respect. I would argue further that the very fact that a person is convicted of a criminal offence, and that stain will be on his escutcheon for ever, even with all the ameliorations of the 1974 Act, is of itself a punishment. However, what is asked for here is something that society regards as hurting the offender. The rationale behind it seems to be that society in some way, through the courts, has failed to recognise that essential element of hurt. In other words, it is saying, “You are namby-pamby. You are soft. You are far too liberal in your attitude in this matter. You are not tough enough”. There is no evidence whatever to support that contention.
As far as the probation service is concerned, the noble Lord, Lord Ramsbotham, has shown quite clearly that it is tough, it is not soft and it is succeeding. The vast majority of cases are dealt with satisfactorily up to level 3; indeed, some of them up to level 4. No professional body could be expected to do better than that. Where is the evidence of the failure to exercise the element of harshness and pain—for that is what the Prime Minister was talking about?
It is entirely proper for a Government, where they are justified in doing so, to circumscribe the discretion that lies with any judge. I think that both Governments have been doing it a little too liberally over the past 20 years. Be that as it may, where they genuinely believe that there is such a case, they are entitled and indeed, one might say, obliged to do so. The case has not been made. If the Government cannot come forward with any hard evidence at all, they will, in effect, be relying on what the noble and learned Baroness, Lady Butler-Sloss, described really as a cosmetic and rather vulgar attitude, where they will be seeking a populist commendation for something that is utterly unworthy.
Lord Carlile of Berriew
My Lords, I support entirely the sentiments behind the amendment moved so ably by the noble Lord, Lord Ramsbotham. I support verbatim the comments that were made by the noble and learned Baroness, Lady Butler-Sloss, and share the concerns expressed by the noble and learned Lord, Lord Woolf, about the use of the word “exceptional” in these provisions.
These proposals ignore what happens every day of the week in court rooms up and down the country. There is a substantial class of cases—or there are classes of cases—which are not particularly common but fall far short of being exceptional. I am the last person here who should attempt to explain to this House in the presence of members of the judiciary who have already spoken what the term “exceptional” means, but usually it means roughly what the dictionary definition says that it means. These are not the common class of cases; they are truly exceptional.
I mention one group of cases that I have experienced as a practitioner and sitting as a recorder and that causes me real concern in the context of this part of the schedule. It is a group of cases in which the defendants are usually women who have been subjected to often very severe domestic violence and sometimes sexual violence. They have done something fairly serious in terms of criminal law and have usually pleaded guilty. They have to be sentenced by the court, but punishment is somewhere low down the list of the priorities that the judge passing sentence has in mind. The sentence can serve a useful service; there are elements in community sentences that are restorative or retributive and can help to resolve the situation that has given rise to the appearance in court. The requirement of punishment in all but exceptional cases seems to ignore the reality of a class like the one that I have mentioned. For that reason, I invite my noble friend the Minister to hearken very closely to this debate, which has had some very authoritative voices speaking in it, and think again.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, it seems a long time since I was looking forward to us reaching this part of the Bill, where, as noble Lords will recall, we slightly bent the rules—goodness knows what they are now—to allow for Clause 23 to bring in rehabilitation proposals. Of course, in a debate in which a former president of the Supreme Court, a former Lord Chief Justice, a former president of the Family Division and a former Her Majesty’s Inspector of Prisons give their opinions, I listen—as I indeed listened to the noble Baronesses, Lady Howe, Lady Hamwee and Lady Linklater, the noble Lord, Lord Carlile, and particularly the noble Lord, Lord Elystan-Morgan. We had a very interesting discussion about the relationship and power of Parliament and the judiciary. I look forward to reading the noble Lord’s memoirs, which I notice have just been published in Welsh. Have they been published in English? I do not know.
Lord McNally
They are on my Christmas list.
The proposal of the noble Lord, Lord Ramsbotham, is a nuclear option, which I will address in my remarks. However, I will start by reassuring noble Lords that the Government fully recognise the point that underpins many of these amendments and agree that offenders who receive community orders are a diverse group, with wide-ranging characteristics and individual circumstances. For example, such offenders are more likely than the general population to have a disability, to come from low-income households or to receive work-related benefits. Many other examples were brought out in detail by the practitioners who responded to our public consultation on these proposals.
It is clearly vital that community orders take into account these diverse needs. We cannot have a one-size-fits-all approach to non-custodial sentences. At the same time, we also need to recognise that community orders cannot focus only on the reoffending needs of the offender. Many who receive community orders have committed not inconsequential offences. The sort of offences for which sentencing guidelines suggest community orders would be appropriate include actual bodily harm, thefts in the hundreds or low thousands of pounds and first-time domestic burglaries.
While it is critical to address the causes of such offending, it is legitimate to expect such behaviour to face punishment. It is clear that fines and custodial sentences provide punishment for an offender; but at the moment it is possible for a community order to be based solely on addressing the offending needs of an individual offender. Our argument is that, by including the punishment element, we will win the vital public confidence for the holistic response that is at the heart of our proposals: the rehabilitation of offenders.
Our provisions seek to balance the purpose of punishment with ensuring that the courts retain flexibility to tailor community orders around offenders’ circumstances. To that end, I remind noble Lords that we have already amended our original consultation proposal that courts should be required to include specified elements, such as community payback or a curfew requirement, in every community order. Practitioners were clear that, although some community order requirements such as curfews or unpaid work were more often likely to represent a punishment than others, in the right circumstances—this comment has been made by a number of noble Lords—all the existing 12 community order requirements could potentially be punitive for a particular offender. That is why Part 1 of Schedule 16 gives the courts the flexibility to choose which requirement would be a proportionate and appropriate punishment for an individual offender.
Crime and Courts Bill [HL]
Lord Elystan-Morgan Excerpts(12 years ago)
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Baroness Warnock
My Lords, I hope that the Government will pay attention to everything that has been said today. There seems to be a total confusion about the meaning of the word punishment and the adjective punitive. The meaning of these two words has separated over the years. Punitive suggests something quite alien from the notion of punishment, which is what is handed down when someone has been convicted. We know that vengeance does not work and that punitive sentences are not necessary. The whole point of punishment is to prevent further offences. We know now that community sentencing does, relatively speaking, work in the way that short prison sentences do not.
I beg the Government to concentrate on what is intended by punishment and to go on the evidence that community sentencing, with good support from the probation services, can work and that this is the intention. The adjective punitive seems to me to be completely out of place in this discussion altogether. I believe that the Government must listen to what has been said today.
Lord Elystan-Morgan
My Lords, I agree wholeheartedly with the remarks made by the noble Baroness, Lady Warnock. In relation to the past 30 years or so, Governments of every hue must stand in the dock and answer the accusation that they went out of their way to curtail the discretion that otherwise would have been vested in a judge or magistrate. Practically all Governments have done that and some of them more shamelessly than others. I am sure that anyone who has served in the courts in a judicial capacity, however senior or however humble, must be very aware of that.
The proposal that the Government are now putting forward in relation to the punitive approach is one of the most far reaching in that context. If it should be the case, as I assume it to be the Government’s case, that one-third of community orders which are made without a punitive element according to their definition must in all cases be dealt with in a different way, save for a very minuscule minority that is exceptional, then it is a very far-reaching and drastic proposal.
I fully accept that the Government are talking not so much about punishment in the sense of the disposal of a case of a person who has committed a crime but about something else, which connotes the idea that the experience of the defendant should be painful. My Latin is not all that good but does the word punishment not come from punitas? Is punitas not one and the same thing as pain? It is poen in Welsh and pain in English. Is that not really what the Government are after?
However, I think that the argument put forward by the Government, which has been described as offensive by the noble and learned Lord, Lord Woolf, and alarming by the noble and learned Baroness, Lady Butler-Sloss, is highly offensive. The 2003 Act had a vast range of community disposals. In many ways, they were imaginative, flexible and double-banked. The sentencer had a huge armoury at his or her disposal.
As I understand it, the Government are now saying that that failed to achieve its purpose. The people who were charged with imposing sentences missed the whole point. At some time after 2003, tens of thousands of sentences every year which should have involved a punitive element did not achieve their purpose because that element was missing. That statement is either correct or incorrect. If it is correct, it must mean that many people sat in judgment as magistrates, circuit judges and recorders who should never have been there. They were missing the whole point. However, if that statement is incorrect, it is one of the most unjust indictments of the administration of justice that there could ever have been. It is one or the other.
I ask the Government: where is the evidence that in tens of thousands of cases, year by year, at some point in time after 2003, that has been happening? I feel it is a policy and a gesture that is cosmetic rather than real and intended to give the impression of toughness. The greatest toughness to my mind that can be achieved in relation to the administration of justice is doing that which is right, that which you know to be just and that which you consider to be proper by society, irrespective of whatever prejudices tabloid editors might have against you. That is the toughness that the Government should seek to achieve.
Lord Marks of Henley-on-Thames
My Lords, the test for these amendments is whether they work in making community orders more effective and in cutting reoffending as a result. It is quite plain from the debate today that it is common ground in this House that seeking reform and rehabilitation of offenders, while recognising the importance of offering redress to victims, provides a balanced approach, which offers a far greater prospect of cutting reoffending than a programme of increasing prison terms and prisoner numbers.
However, if there is to be a compulsory requirement imposed for the purpose of punishment in community orders—it is noteworthy that the phrase punitive element is not used—it is very important to recognise what is meant by punishment in this context. In an enlightened society, the punishment involved in a prison sentence is the loss of liberty for the offender, not the imposition of a harsh and inhumane regime for prisoners serving their sentences. Therefore, the punishment element in a community order should be reflected in a lesser but none the less significant loss of liberty—the liberty to do as one pleases within the law—by the imposition of some compulsory sanction that restricts that liberty.
It should not follow that the activity that offenders are obliged to undertake by community orders must be unpleasant, degrading or harsh. It is not likely to be helpful to force offenders to do some kind of hard labour for the sake of it, much as some elements of the press would wish us to do so. It is likely to be helpful, however, to oblige offenders to acquire work and life skills that will help them to find work and take their place in non-criminal society. Compulsory training, useful work—particularly work that benefits the community—treatment for addiction and anger management, and, importantly, a significant commitment to compensation, may all have their place in a regime of punishment, as may curfews monitored by electronic tagging that oblige offenders to remain at home for a reasonable number of hours in the day. I reiterate the point made by my noble friend Lady Hamwee that 16 hours hardly seems a reasonable number of hours in a day.
From what I have said, it follows that I welcome the passage in my noble friend’s opening speech that this is how the Government see the punishment provision. But I can foresee the way in which the provision is presently worded leading some to question what is meant by punishment. It is important that it is absolutely clear, as my noble friend suggested, and as the noble Lord, Lord Ponsonby, wanted clarified, that the discretion as to what is the punitive element in a sentence is a discretion to be exercised by the sentencer and that he or she can comply with the requirement in the schedule in a way that he or she reasonably sees fit.
I would add a couple of words about one or two provisions of this part of the schedule, to which the House may wish to give attention next time. The reference to “exceptional circumstances”, as the noble and learned Baroness, Lady Butler-Sloss, pointed out, as being the circumstances required to invoke the exemption from the requirement for a punishment element or a fine in a community order is far too strong. Exceptional is a very powerful word in statute and runs the risk of being more restrictively interpreted by the courts than my noble friend’s speech would indicate that the Government intend.
I also add a minor point that the proposed provision that breach by a contractor of the code of practice for electronic monitoring will not give rise to a civil cause of action may offer contractors, who are likely to be private contractors, an unwarranted level of immunity, and may weaken public confidence in how they perform their duties in respect of an intrusive form of punishment.
I add a word or two about restorative justice. The provisions of Paragraph 5 of the schedule have been welcomed across this House. By bringing offenders into contact with their victims, restorative justice helps them to understand the impact of their offences and assists victims to feel that society cares, understands the ordeals that they have been through and responds to them. For far too long, victims of crime have been treated as witnesses only, and even the introduction of victim support over recent years has failed adequately to address this. I know from my own experience and that of others that an arrest and a flurry of statements following an offence are followed up with a couple of letters offering counselling by way of victim support, when the victims may not need or want such counselling. Then far too often there is a silence, without the victims even being told what has happened because the offender has pleaded guilty so no evidence is needed from them at a hearing. That leaves a gaping hole in the system of providing victims with proper redress, and it needs covering at all stages of the process.
Deferring sentence to allow for restorative justice activities may prove a turning point for offenders and victims, and the evidence to which the noble and learned Lord, Lord Woolf, referred so far supports this. But for all these proposals to fulfil their potential, they must be properly resourced in terms of people, preparation and funding. To improve the effectiveness of community orders in the ways proposed, we will need more people, more money and adequate training. Much will turn—and the noble Lord, Lord Ramsbotham, made an extremely valuable and important point—on the outcome of the Government’s consultation on the probation service. While there may be good reasons for the increasing use of private and voluntary sector providers, as suggested in the consultation paper, it is very important that we do not dissipate or even risk dissipating the expertise that exists within the public sector probation service—and I share the worries of many noble Lords in the Committee. For example, there is a proposal in the consultation paper to allow existing probation services to form separate probation trusts to compete with private and voluntary sector providers for work from the commissioning probation trusts. That seems structurally awkward and doomed to fail. We must find a way to retain what is best in the probation service and not lose the talent that we have.
Resource will also be needed to provide for the restorative justice proposals. Sentencers will need training, and facilitators will need to be available to provide a service during the short periods when sentence is deferred. There will need to be national, not patchy, cover. These are serious challenges; if met, I believe that they offer serious prospects of improvement and, ultimately, savings of resources and great social benefits. But the implementation of these proposals so that they achieve their potential will be a significant challenge.
Lord McNally
Absolutely. We might get on to troikas in a few minutes, but we will wait for that.
I also fully understand the separation of powers in our system. The judiciary and parliamentarians should show due respect for each other, but we should also respect that in the workings of the criminal justice system parliamentarians have a responsibility as well as the judiciary, and they are quite entitled in that responsibility to comment on how the system is working. I have to say to the noble Lord, Lord Elystan-Morgan, that if proposing amendments to the criminal justice system somehow disowns all the decisions that judges have made under previous legislation, it must have been really difficult under the previous Government who, I think, passed a piece of criminal justice legislation on average every year for 10 years. We should not get too thin-skinned about it. I have absolute respect for our judiciary and it is a bit rum to say that we are bullying or being high-handed. One of the key elements of this Bill spelt out clearly our trust in the sentencer to make the crucial judgments about balance in terms of punishment.
Of course we will consult on guidance. When sentencing any offender, courts are under a statutory duty to follow any relevant guidelines issued by the Sentencing Council.
Lord Elystan-Morgan
Does the Minister accept the logic of the situation that, if he is right about the one-third of community sentences that according to the government definition do not carry a punitive element, that one-third—amounting to many tens of thousands of sentences each year—would be disallowed and that that is the effect of the situation over the past nine years since the 2003 Act came into force?
Lord McNally
I am sorry but I completely failed to follow the logic of this. Parliament is entitled to take another view nine years after a piece of legislation is enacted. That does not mean that decisions taken under the 2003 Act between its enactment and this Bill becoming law become completely invalid, it just means that Parliament has taken another view on this and has given some further guidance as to how the council should carry out its responsibilities. The Government are saying that they believe that the third or so of community sentences that did not have any punitive element would have been better and more effective if a punitive element had been included. We have had a lot of debate about this, but imagining that community sentencing that does not have punitive elements will have public confidence is going too far. I can tell the noble Lord, Lord Reid, that I had a very good example of one of his pieces of handiwork. I went to see a group of young men clearing a patch of derelict land and they were all wearing bright orange jackets. I asked the supervisor, “Do you have any trouble?”, and he replied, “Only that they steal the jackets because they’re quite a symbol to wear at the dances on Saturday nights”. That is the reality at the sharp end.
There is a fear of the word “punishment”, and the noble Lord, Lord Beecham, mentioned some statistics. I have said this at this Dispatch Box before: at one of my first ministerial visits to a young offender institution, there was a group of 16 and 17 year-olds standing around and I said to the person in charge, “What are the factors involved in these guys being here?”. He looked across at me and said, “Most of them have had but a passing contact with our education system throughout their lives, and most of them can’t read or write”. If we have young people, in particular, in our care and custody for a period of time, it does not seem unreasonable to say, “While you’re there, you’re going to learn to read and write”, or, if they are on a community sentence, “While you’re on that community sentence, we’re going to teach you to read and write”. Somebody who may never have got up before noon in his life might classify learning to read and write as a punishment, but later in his life he may classify it as one of the turning points in his life.
I understand some of the concerns but let us not get too worried about some of the presentational aspects; let us dig down into what the Bill is going to do. I think that it will put community sentencing on to the map in a way that will attract public confidence and enable us to take proper action on the rehabilitation of offenders.
I reassure noble Lords that we are looking very carefully at electronic monitoring and we will keep the House informed as we examine the technologies. Of course, we are aware that there will be civil liberties concerns in this area which we will wish to address and on which we will wish to reassure Parliament.
With the leave of the Committee, I shall look through my notes and, where there have been specific questions that I can reply to, I shall do so in writing. However, I know that this excellent debate has fulfilled the first of our objectives. I take on board the concerns that have been expressed about probation. I am a lifelong admirer of the probation service and am in awe of the responsibilities that our probation officers take on. I cannot imagine that any future structure would not draw on the experience and ethos that makes it such an excellent service.
Crime: Victims
Lord Elystan-Morgan Excerpts(12 years, 5 months ago)
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Lord McNally
Again, I certainly take that on board. We are beginning to appreciate more fully just how traumatic it is for an individual to be stalked. I am hopeful that we will be able to treat this as the serious crime that it is, not only in dealing with the perpetrators but in how we support the victims.
Lord Elystan-Morgan
May I invite the Minister to consider a very significant omission in the otherwise excellent consultation document? Is he aware that under Section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 a court is obliged in appropriate cases to grant compensation to the victim of the crime, and that if it does not take that view, it is obliged to certify why that is not being done? Is he satisfied that the fullest use is made of this most significant statutory provision?
Lord McNally
As often with questions from the noble Lord, I am not sure that I am aware of the provision to which he referred. If I understood him correctly, he is saying that courts should sometimes use their discretion not to grant compensation. I think that there have been press reports of compensation paid to people who have been involved in criminal activity—
Lord Elystan-Morgan
I am sorry; perhaps I may explain. I was referring to a situation in which a court feels that a fine is appropriate, all other things being equal, but that the defendant can hardly afford to pay a fine and compensation. The court might decide that, in the circumstances, the public interest is better served by using a compensation order.
Lord McNally
I think that I had better take advice and write to the noble Lord. I can feel the thin ice under me so I will write to him.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Elystan-Morgan Excerpts(12 years, 7 months ago)
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Lord Hart of Chilton
My Lords, I have supported the noble Lord, Lord Pannick, throughout the process of this Bill. I do so again and I will not take up time to enlarge on anything that has been said thus far in support of the amendment. I simply risk causing the Minister convulsions by drawing his attention to the clock and indicating that we are well on our way to doubling the amount of time that the Commons took to dispatch four of your Lordships’ amendments. It also had the temerity to adopt a programme Motion that caused Sir Gerald Kaufman to stop in mid-track when he was saying:
“It is out of order in this House of Commons to accuse anyone of hypocrisy, so I—”.—[Official Report, Commons, 17/4/12; col. 208.]
We shall never know what he was about to say, but it shows how well we attend to amendments in this House and how poorly they do so in the Commons.
Lord Elystan-Morgan
My Lords, the whole exercise of this House examining the reasons given for rejecting an amendment from this place turns on the supposition in the first instance that the other place has in a mature, reasonable and well informed way applied itself to all the relevant issues. I therefore take very much to heart the submissions made by way of preliminary argument by the Minister. It is his case that the other place has done exactly that: namely, that it has looked in a fair, reasonable and mature way and has comprehensively dealt with those issues. I think that his argument is utterly fallacious in that respect.
Lord Thomas of Gresford
Before using a word such as that, does the noble Lord not agree that there is a constitutional convention that—
Lord Elystan-Morgan
It is exactly on the question of constitutional convention that I seek to address this House now. The Minister’s case, in so far as it refers to the Government having carefully considered the situation, is amply made out. I am sure that battalions or squadrons of legal eagles have been burning the midnight oil looking carefully at every word, comma and expression in these matters. I have no doubt that that has been done thoroughly and comprehensively.
However, has the other place thoroughly and comprehensively considered this matter? There has been a double guillotine. First, there was a guillotine in dealing with the issue because it could not be raised at Second Reading, in Committee or on Report. There was a second guillotine in the meagre ration of time—27 minutes—allowed for this amendment and two or three others. You would not hang a dog on such a procedure.
Therefore, on that basis, I make no apology for raising what I consider to be a fundamental constitutional point. We are dealing with the rejection by the House of Commons of a matter on which the time taken presupposes that its consideration could not have been mature and comprehensive. In addition, we have the reason given on financial privilege. I am as sure as I am that financial privilege cannot apply to this case because the very thing that it avoids doing is increasing the burden on the public purse. If I am right—as I understand it, that has been the rule since the end of the 17th century—it is not a financial privilege matter. Therefore, we have two constitutional issues. One is the lack of time and it being ridiculously limited in the other place. The second is the reason advanced; the very basis for refusing it cannot be sustained in argument.
Perhaps I may also challenge in a respectable, and I hope friendly, way the noble Lord’s contention that those of us who have had experience—in my case, it was a very long time ago—as Members in the other place are in some way tainted and disqualified from making contributions in this House on this matter. Is he saying that we should be silent? If this House is anything at all, it is a first-class reviewing Chamber. Is he saying that, as a reviewing Chamber, this House should not comment on such matters? If it does not comment on such matters, it does not deserve to be a reviewing Chamber or a court of Parliament at all.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Elystan-Morgan Excerpts(12 years, 8 months ago)
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Lord Elystan-Morgan
My Lords, I wholeheartedly agree with what has been said by all speakers on this matter. For any new criminal offence to be created, or for any existing criminal offence to be extended, there is a heavy onus on the Government of the day to show that that is reasonably necessary. It is against that template that Clause 145 fails completely. There is a great deal of misunderstanding about the matter, which may very well have been deliberately fomented by the right-wing press. It is said to people, “What would you do if you were on holiday and came back to find that there were 20 people living in your house and having every intention of living there for ever?”. Of course, you would say it would be absurd for such a situation not to be visited by a criminal sanction—but it is already visited by a criminal sanction.
The civil law has catered for this situation—whether it be developed property or not—for a long time, since the early 1970s. Those of us who belong to the noble calling of the law will realise that Order 24 and Order 113 apply and provide a procedure that is swift, effective and cheap, provided it is competently carried out. There is no problem whatever so far as the civil law is concerned.
In 1977, with the Criminal Law Act that the noble Baroness has referred to, it was realised that there were situations where owner-occupiers were in fact trespassed upon in their own homes, normally when they were away for a day or two or where people were expecting to move into property but found that they could no longer occupy it. Section 7 of that Act said very clearly that it did not apply to non-residential property. A clear distinction was drawn and deliberately considered in detail by Parliament. That seems to have been a boundary of common sense, fairness and justice.
Why is that boundary being transgressed now? What is the case in favour of changing that boundary? It is my submission that there is no case whatever for doing it. The civil law amply provides for civil sanctions. If those are not obeyed, then of course the courts can always act on the basis of contempt of court. The punishments are severe, as we know. The criminal law deals with those cases when it is right, proper and inevitable that there should be a strict criminal sanction. It does not apply to non-residential property because it was never thought necessary that it should do so. The Government of course have issued a consultation paper on this matter, to which a substantial number of people responded—96 per cent of whom said there is no need to change the law at all. This is not a case of softness towards people who defy the law but a case of looking in a mature, fair, just and proper way at a problem. The conclusion of so many people in an excellent position to judge is that there is no need whatever to do anything. A letter in the press signed by 163 distinguished petitioners, jurists and academics, supported that view. The Criminal Bar Association, the Law Society and the Metropolitan Police supported that view. In relation to the consultation, the Metropolitan Police said:
“The Metropolitan Police, responding on behalf of the Association of Chief Police Officers, considered that the law was broadly in the right place and that the existing array of offences allowed them to tackle the worst cases of squatting (e.g. where squatters cause the rightful homeowner to be displaced) … They warned that new offences could have an impact on policing in terms of community relations, local policing objectives and cost”.
On the question of cost—and I have no doubt that other noble Lords will deal in some detail with this matter—it is abundantly clear that the Government’s own estimate of a cost of some £25 million to the public purse over a period of five years is woefully inadequate and entirely unrealistic. They have not taken into account the fact that tens of thousands of persons squatting do not apply for housing allowance. These cases, if people are ejected from their squats, will find their way into the courts. There will be massive expenses adherent to that situation. Again, there is little doubt that the figure of £25 million— I would not seek to try to set a specific figure—can probably be multiplied by 10 or 20, leading to a massive non-saving in a Bill that is dedicated to saving expense to the public purse.
I ask the House to consider one further matter. This is retrospective legislation. Clause 145(1) applies to a situation when a person, the defendant, has trespassed in the premises, knowing that he is trespassing. He may have entered 10 years before, when there was no such thing as a criminal sanction in relation to that type of trespass. That is retrospective legislation and that is what Parliament abhors and resorts to only in the most drastic of circumstances. It is the very thing that is condemned, as the House knows, by Article 7 of the European Convention on Human Rights.
All in all, this is a wholly unnecessary piece of legislation. It is utterly merciless, utterly unfeeling and utterly costly, and it is likely to be a heavy and unnecessary burden on the time and energies of the police. The next best thing to rejecting it would be to accept the amendments, which I support wholeheartedly.
Baroness Hamwee
My Lords, I congratulate my noble friend on her persistence in dealing with this matter and provoking some very powerful speeches from your Lordships, as well as making her own.
The issue is homelessness and housing supply. Whatever is being done now by the current Government, the stark fact is that at this moment the housing needed is just not there and cannot be created in an instant. Ordinary, decent, desperate people, whose motive is not envy, or to deprive others, or to make a political statement, are simply seeking a roof. Many of them would be regarded as vulnerable, in any normal sense of the word. Like my noble friend, I am interested in and concerned about the interface between these provisions and local authorities’ housing responsibilities —in particular, whether a conviction is needed for someone who has been squatting to be unintentionally homeless. How does all that fit together, and what guidance will be given to local authorities on this?
Lord Campbell-Savours
I wish to intervene briefly in this debate. I have come into the Chamber for the scrap metal debate but it seems to me that we may be overlooking a major flaw in the amendment. Clause 145 states:
“A person commits an offence if”,
and then lists various conditions. However, the amendment seeks to add to the statement in the Bill that,
“The offence is not committed by a person”,
the phrase,
“if the building has been empty twelve months or more and is not subject to a current planning application”.
So what happens if a building has been empty for marginally longer than 12 months and is being improved? Perhaps it is being improved to meet building regulations, or the person improving the property might be awaiting a mortgage payment to fund improvements, which might mean that they go over the 12-month period.
Lord Elystan-Morgan
I will be corrected if I am wrong but I believe that that matter is adequately dealt with by Section 7 of the Criminal Law Act 1977, which covers not only persons who are in occupation but persons who anticipate occupation. I think, therefore, that the category of persons listed by the noble Lord will be covered by that provision.
Lord Campbell-Savours
That is the noble Lord’s judgment, but perhaps I may finish my contribution. Perhaps the Government intend to comment on the interpretation that he has just given. They might also take into account my further point that a planned improvement which has not taken place over a 12-month period could be the subject of an argument with neighbours, who may well be preventing the completion of the improvement to the property. All I am saying, basically, is that to introduce a current planning application as a way of stopping it could lead to unfair treatment of those carrying out improvement programmes. Let us hear what the Minister has to say.
Magna Carta
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Lord McNally
I would certainly hope so. As the right reverend Prelate pointed out, Archbishop Langton played an important part at that time. I shall draw the idea to Sir Bob Worcester’s attention. I believe that this is an opportunity for us to celebrate a significant part of our history. I know that historical purists will cavil at the importance of the Magna Carta, but I always remember Eleanor Roosevelt, when she published the Universal Declaration of Human Rights, saying that it was a Magna Carta for all mankind. Nobody needed to translate what she meant by that. Magna Carta carries a resonance that has come down to us through the ages.
Lord Elystan-Morgan
My Lords, may I invite the Minister graciously to disabuse himself and all others who fall prey to the misconception that Magna Carta was ever signed? It never was. As a charter, and as the name implies, it was sealed by the royal seal of King John, as the facsimile mounted in the Contents Lobby makes very clear. May I apologise for making such a pettifogging legal point?
Lord McNally
Not at all. I have long considered the noble Lord a master of the pettifogging legal point, but his question gives me the opportunity to put on the record, for noble Lords who want to get involved in the build-up to the Magna Carta celebrations, that my honourable friend Eleanor Laing in the other place is chairing an All-Party Magna Carta Group. I am sure that it would benefit from membership from this House.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Elystan-Morgan
My Lords, I find myself very much in sympathy with the sentiments that lie behind both the amendments. I agree with everything that was put so clearly and in such a balanced way by my noble friend Lord Wigley.
In relation to Amendment 175, it could be said that one is dealing with two sets of reports from two different agencies. In so far as anything deals with the criminal history of the defendant, even though it may not be the subject of a conviction, it belongs to the area of antecedents and to the agencies responsible for those. In other words, a bare statement of conviction on a certain date giving the detail of the conviction but no more would be very inadequate if it did not give the sentencing court—whether it be a magistrates’ court or a Crown Court—the background which is so essential for it to decide an appropriate sentence.
Both the agencies concerned—the probation service and those who prepare antecedent reports—are heavily overstrained. That, it seems to me, is the real problem with which one is dealing. These people dearly wish to devote much more time and effort to the preparation of a report but are simply unable to do that due to the exigencies which exist.
Everything that has been said in relation to dependants by the noble Lord, Lord Wigley, and those who support the amendments is corroborated by what I have seen over the years as a solicitor, barrister and judge. There are two stages when a court has to consider whether or not to impose a custodial sentence. First, it has to decide whether the gravity of the offence in all the circumstances of the case brings it over the bar, as it were, to the point where a custodial sentence is appropriate. Having decided that, it then looks at all the other circumstances of the case. Very material to that consideration will be the situation of dependants. It may well be argued, therefore, that it is not necessary to have the amendment, but I urge the Government to take a different view as it would help to concentrate the mind of the sentencer in that direction.
Any wise sentencer—magistrate or judge—knowing that young children may have to go into care or be dealt with in some other way, will have to look at the totality of the situation, having decided that it is an appropriate case for custodial sentence. In other words, the sentencer has to ask whether the totality of the situation is such that the community and the interests of justice are best served by a person going to prison or avoiding prison in some way or other. It is not a question of what the person deserves because that is a narrow, tunnel-vision approach to the whole matter; it is a question of what is proper and just for society and all concerned. I am sure that it is a precept for the wise sentencing court—magistrate or judge—to ask for a full report from the care authority regarding what exactly will happen to children in the event of a custodial sentence being imposed.
Lord Faulks
My Lords, both these amendments are concerned to ensure that the court knows all that it needs to know before sentencing. In my experience as a recorder, the court would be acting very negligently indeed if it were to sentence a woman, or even a man, without knowing the effect of that on the dependants. That is the fundamental point usually made in mitigation. It is very much part of the picture that any sentencing tribunal would have to take into account. If for some reason an advocate or the probation service was not giving sufficient information about this, the court would ensure—by adjourning if necessary—that that information was available. Therefore, although I accept the points made about the necessity to take all these facts into account, these amendments are designed to tell the courts what to do. I respectfully submit that the courts know what to do.
Lord McNally
One of the reasons why I am always at a disadvantage when dealing with my noble friend is because he usually has some recent case in which he has personally participated that proves the case he is making. I have noted what he said and will check whether that is regular practice. As I said, the Appeal Court has made it very clear that if reports are not asked for or are deficient, that in itself could be grounds for an appeal.
Lord Elystan-Morgan
Further to the point made by the noble Lord, Lord Thomas of Gresford, is it not the case—I will be grateful if I am wrong—that under the Criminal Justice Act 2003, there is a requirement on the court in all cases to have a probation report in writing, save when the court sees it entirely proper to relax that rule, but not when a person is under 18? There is one other exception that I cannot remember, but it is quite substantial. In other words, will the Minister look not just at the amendment but at the parent provision, as it were, in the 2003 Act?
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Elystan-Morgan
My Lords, I join all those who have spoken in favour of the amendments, in particular Amendment 166ZB, to which I have appended my name with those of my noble friend Lord Martin and the noble Lord, Lord Collins.
If one were to ask whether Britain is an overlitigious society, the answer would be yes and no. There are massive abuses that we are all aware of; there have always been abuses in the law. A small percentage—a minority, I like to think—of the profession to which I belong, and I have belonged to both sides of it, belongs to that class that Dr Johnson spoke about when he said:
“The fell attorney prowls for prey”.
There have always been brethren who have been involved in that way, but they are, as I said, a very small minority.
The Government are absolutely right to aim their weapon at such malpractices, but the weapon that they are aiming, it seems to me, is a blunderbuss with a very wide barrel, throwing a huge cloud of shot many yards wide that will hit many targets, some of them worthy and some of them not. My appeal to the Minister who will reply to this debate is not to express a Molotovian no to these appeals, which have been so sincerely and so solidly made. It would be utterly wrong to allow many worthy referral schemes to be destroyed wantonly just because the Government may not be sufficiently imaginative to look at each and every one of these situations separately.
It was very proper of the noble Lord, Lord Collins, to remind the Committee of the primary origins of so many trade unions: friendly societies and societies of brethren, uniting in brotherhood to try to bring about a justice that society as a whole was not able to give them at that time. It is a very worthy history. Therefore on that basis, speaking with the experience of one who has been a solicitor, a barrister and for some 20 years a judge, I concur completely with everything that I have heard. These are deserving cases and it would be wrong, unjust and utterly unworthy of the Government to lump them all together and treat them as if they were pariahs to be attacked in this way.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Avebury
My Lords, I do not believe that any cost whatever has fallen on public funds but I shall be as interested as the noble Lord, Lord Alton, to hear from the Minister about that aspect of the amendment. Both the noble Baroness, Lady Coussins, in moving the amendment, and my noble friend Lady Hooper, underlined the fact that we are talking about a very small number of cases that would not encourage the development of a litigation culture; quite the contrary. In the few cases that we are talking about, there would be a significant impact not only on the lives of many thousands of people who are directly affected but, as has also been emphasised, on corporate practices and international norms in business and human rights.
I declare an interest as president of the Peru Support Group, which was particularly concerned in the Monterrico Metals case described by the noble Lord, Lord Judd. This is a paradigm case because there is no doubt whatever that the poor indigenous inhabitants of Peru would have been totally unable to mount this action if the proposals in the Bill had come into effect. Is that really what your Lordships want—to say that people in the third world who are victims of appalling human rights abuses by United Kingdom or United Kingdom-based companies are not going to be able to bring proceedings in the courts of law? I do not believe that that is what your Lordships would like to happen. Therefore, I beg my noble friend to listen very carefully and come forward with proposals that, if they are not word for word on the lines of these amendments, at least convey their sense, as the noble Baroness, Lady Coussins, said.
Lord Elystan-Morgan
My Lords, I, too, support this amendment, which was presented with such lucidity and articulation by my noble friend Lady Coussins. The exact motivation behind the changes that are being incorporated into the Bill is not clear to me. Is it to save the public purse some money, or is there some other purpose? If it is a case of saving the public purse some money, what aspects of the possible results have been examined? Exactly what evidence has been collected? How satisfied are the Government that a net saving in that regard will be brought about? It is obviously not the Government’s intention to deprive worthy people of a redress that they have at the moment, albeit in an imperfect state, as my noble friend Lord Pannick suggested. That cannot be the motivation, but undoubtedly that would be the result.
It is true that the number of cases is not immense, but justice is one and indivisible. The stain on the name of justice in these matters is considerable indeed. I remember in the early 1970s being a member of Lord Elwyn-Jones’s chambers. He was briefed by some South Sea Islanders whose island had been abused by the rapacious acts of mining companies that were registered in the United Kingdom. Out he went for a conference. As the launch was drawing into harbour, hundreds of people were drawn up on the quay—a very high percentage of the islanders—all singing, “Oh God our help in ages past, our hope for years to come”. Elwyn-Jones, being the man he was, was greatly inspired by that and, indeed, the islanders won a redoubtable victory. It is in defence of such situations that I greatly welcome the initiative brought about by the noble Baroness.
Lord Stevenson of Balmacara
My Lords, this has been a very interesting debate that has been well supported all round the House. I hope the fact that so many noble Lords have spoken in support of these amendments will weigh on the Minister when he responds.
I would like to spend a few minutes talking about the dichotomy between the rhetoric that we have heard from the Government about the importance of human rights, which we support, and the impact of the measures before us. Under the existing regime, it is already extremely difficult for the cases that we have talked about to be brought in the UK. In the past 15 years, only nine or 10 such cases have been brought. However, these cases have had a significant impact not only on the lives of thousands of people directly affected but—this is important—on corporate practices and international norms in business and human rights.
When the Prime Minister met the Colombian President Juan Manuel Santos in London on 21 November, we were delighted to hear him say:
“Governments of the United Kingdom and Colombia reaffirm their shared commitment to respect, protect, and promote human rights. We reaffirm our commitment to uphold the human rights treaties and agreements we are signatories to, in particular the Universal Declaration of Human Rights, and the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights”.
I am sure the Minister and his Government want to match reality to that rhetoric. The problem is that, possibly as a result of an unintended consequence or possibly of trying to get one cap to fit all cases, the considered view from all those involved in this area is that the practical result of the proposed changes will be that it will be almost impossible for poor individuals and communities from the developing world to pursue justice in UK courts. We think that this is wrong in principle but also because of the message that it sends to multinational companies based in the UK. Our amendments would create an exemption so that vulnerable victims of human rights abuses in the developing world would still be able to bring cases to the UK. There is no evidence of any need to address the possibility of a spate of spurious claims here; the truth is that it is already very difficult to bring these kinds of cases against UK-based companies in our courts.
Amending the Bill will be essential if the UK is to meet its commitments on business and human rights and to avoid giving the impression that somehow the Government have gone soft on the way they wish to treat business that causes abuse overseas. The rhetoric is good. We know that the Government have consistently supported the UN “protect, respect and remedy” framework for business and human rights and the guiding principles developed by Professor John Ruggie and adopted by the UN in June 2011. In those framework and guiding principles, Principle 26 explicitly states:
“States should take appropriate steps to ensure the effectiveness of domestic judicial mechanisms when addressing human rights-related claims against business, including considering ways to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy”.
As recently as December 2011, the UK submission to the UN Working Group on Business and Human Rights stated:
“The United Kingdom has placed human rights as central to and indivisible from the core values of British foreign policy. We believe the potential of business to impact on the human rights of individuals worldwide has only been fully recognised in recent years. The endorsement by the Human Rights Council of the UN Guiding Principles on business and human rights in June 2011 marks a high point of international consensus on the issue”.
In light of the praise for Professor John Ruggie’s achievements, it is vital that we keep open the chance of mounting human rights actions in the United Kingdom. The reality of today’s world is that global companies play an increasingly important role and can impact on almost all aspects of our lives. While many UK transnational companies act responsibly, it is important that in situations where human rights abuses occur abroad, poor and vulnerable victims can still seek justice in our courts.
As the noble Baroness, Lady Coussins, said, the Government have already made an exception in the Bill for ATE in clinical negligence cases. Is it not possible to do the same for this limited set of cases? As has been mentioned, the mover and supporters of the amendment met last week the noble and learned Lord, Lord Wallace of Tankerness, and the noble Lord, Lord McNally, who I thank for their time and courtesy in listening to us. I came away from the meeting feeling that there was a willingness to find an accommodation on this issue. If the Minister is happy to signal his willingness to continue those discussions, I am sure that there will be a way of resolving the differences, and I look forward to having a chance to do that.
Lord McNally
I am aware of that. As the noble Lord said, that issue was to a certain extent present in the Trafigura case, where 30,000 people each received £1,000 and the lawyer got—or tried to get— £100 million.
Lord Elystan-Morgan
I am most grateful to the noble Lord for giving way. Without detracting in any way from the point made by the noble Lord, Lord Judd, is not the difference between the damages counted and the costs incurred in many cases indicative of the inequality of arms between the situation of the claimants and that of the defendants, many of which are multinational companies with a gross turnover per annum greater than that of 50 of the least privileged countries in the United Nations?
Lord McNally
Part of the problem of answering a debate such as this is the horror stories, abuses and problems raised about the capability of multinational companies to misbehave. No one denies that. I have spent most of my life in politics being greatly suspicious of many such operations. We cannot funnel that down to a change in an area that, it has been admitted, has covered 10 cases in the past decade. I understand noble Lords’ commitment to take on those abuses, but to suggest that the English legal system is in any way able to meet the point is to put too much of a burden on it.
As I told the noble Baroness, Lady Coussins, I do not believe that such cases will not be brought because often the motive is not profit; it is many of the motives that have been explained tonight. What is at stake for the companies concerned is often not money but reputation. I do not believe that we are creating an insurmountable barrier to take cases where English or Welsh companies are at fault, but I will draw the debate to the attention of my right honourable and learned friend the Lord Chancellor, because the speakers list should be respected. My right honourable and learned friend and I believe that the fear of the effect of what we are doing is exaggerated. The opportunity that the Bill offers for other forms of financing of litigation is underestimated, but I will ask him to read the debate, look at the arguments deployed and consider the amendments. For the moment, I ask the noble Baroness to withdraw her amendment.
Domestic Violence, Crime and Victims (Amendment) Bill
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Lord Elystan-Morgan
My Lords, like all other Members who have spoken, I warmly applaud the Bill. I consider that Sir Paul Beresford MP, who introduced it in the Commons, has placed the community very much in his debt. As for the noble Lord, Lord Laming, there cannot be anyone better qualified, through his distinguished services already in this field, to lead the Bill through the procedures of this House.
The list of credits does not end there. I warmly applaud the Minister—the Deputy Leader of the House—and Her Majesty's Government for the support that they have given in this regard. It has not always been the case over the past 18 months that I have been able, with metronomic regularity, to extend such felicitations to the Government, but I do so with very great sincerity and conviction in this case.
It seems to me that the story starts a quarter of a century ago with the case of R v Lane and Lane, which the House will recollect. A 22 month-old child sustained dreadful head injuries—multiple fractures of the skull—and died. The mother blamed the stepfather; the stepfather blamed the mother. Both were charged with manslaughter and convicted. They appealed to the Court of Appeal, which ruled that their convictions were unsustainable. As lawyers appreciated, the ruling was in no way confined to family situations. One might have a situation where a document could have been forged only by A or B. That would not allow one to convict A or B. The same is true in relation to theft, any form of assault and a dozen other criminal situations. It means that a person can be convicted only if it is clearly shown beyond reasonable doubt that they have committed a particular offence. It is as cerebral as that.
In 1985, following the decision by the Court of Appeal, a thrill of horror ran through the community, which appreciated exactly what this could mean in so many domestic situations. In consequence, the NSPCC, to its eternal credit, compiled a comprehensive and excellent report—in 2002, if I remember rightly. That led to the Law Commission's two reports—a consultative report in April 2003 and a final report in September of that year—which urged legislation in relation not only to murder and manslaughter but to causing serious harm to a child. Today, that chapter is rapidly coming to a close.
In 2004, it was only in relation to murder and manslaughter that this protection was given to children and vulnerable adults. However, I understand the reticence with which Parliament proceeded. In one sense, it was in a jurisprudential context breaking very new ground. In another it might not have been all that revolutionary. Section 1 of the Children and Young Persons Act 1933 sets out two types of responsibilities. One relates to active acts: conscious, deliberate acts of commission against a child. The second covers acts of omission: failing to feed or clothe a child, or to give them proper medical attention. Therefore, there was nothing quite as revolutionary in this development as might have been thought. In any event, it was the attitude of government—understandably—that there should be an experimental period. The case of Baby P shows clearly how well this law can be applied and how necessary it is now to fill in the rest of the lacuna.
I will mention one or two relevant matters. I am very pleased that in this legislation, as in the 2004 legislation, there is a provision that orders a judge not to throw out a case at the end of the prosecution evidence but to hear the whole of the evidence before coming to a determination on whether the case should go to a jury. That is a very important matter. In practice it means that very often a defendant or defendants will go into the witness box, and on cross-examination it may be that they will produce evidence on which they could be convicted. Failing that, each defendant might blame the other. That is admissible evidence, subject of course to a stern warning from the learned judge. It is a matter of some importance that the provision is retained.
My technical point is that under Section 5 of the Indictments Act 1915 it is open, where two persons are charged as joint defendants in relation to the same offence, for an order of severance of trials to be made. In a case such as this, a competent defending counsel would immediately advise that there should be severance. Twenty years ago, it was said that the high-water mark in relation to severance in such cases had been reached. Since then it has been rather difficult for such an order to be given where joint defendants face the same charge. However, Section 5 gives the learned judge total discretion, and the first thing that counsel for either defendant in a situation like this would do would be to apply for severance. It may be that the precedents are such that few judges would grant such an application, but it is possible. It might not be a bad thing—I put this as a humble suggestion to the Government—if there were to be either a directive or legislation dealing specifically with the matter.
The other issue relates to civil matters such as family law hearings that do not come before the criminal courts. This matter was dealt with very fully by the noble and learned Baroness, Lady Butler-Sloss. By a different path, much the same solution has been reached. In her modesty she did not refer to the case of Baby B, which was decided by this House in its appellate capacity in 2003. The House said then that in a situation where it was clear that Baby B had suffered abuse that could have been committed only by one or both of two persons, in those circumstances it would be grotesque—that was the word used by the House—to pretend that Baby B was not in a situation where a care order should be made, and therefore that both A and B, as possible perpetrators, were regarded as persons who would place Baby B at risk. The jurisprudential path was very different to that adopted by the legislation we are dealing with, but it achieved a just and practical result.
The other matter is small. Clause 2(2) of the Bill defines “relevant offence” as,
“an offence under section 18 or 20 of the Offences against the Person Act 1861 (grievous bodily harm)”.
I understand, since the harm that is aimed at here is serious physical harm, why there should be the words in brackets. However, the technicality of the situation is that in both Section 20 and in Section 18 of the Offences Against the Person Act 1861, which covers the more serious offence, there are the alternatives of grievous bodily harm or unlawful wounding. In relation to Section 20, unlawful wounding would probably not be an appropriate category for consideration. Under Section 18, which covers unlawful wounding with intent to do grievous bodily harm, it undoubtedly would be. This is a small matter that I am sure will be attended to. One could have had a most interesting discussion today about whether this Bill falls under the Wolfenden principle of practicality, the John Stuart Mill concept of criminal responsibility or the Devlin concept of morality and criminal responsibility. I believe that it probably qualifies on all counts, and I wish it well.