Crime and Courts Bill [HL]

Debate between Lord Woolf and Lord Sewel

Tuesday 13th November 2012 Lords Chamber

[The Chairman of Committees (Lord Sewel)]

I have to inform the Committee that if Amendment 1 is agreed to, I cannot call Amendments 2 to 10 inclusive.

[Lord Woolf]

I wondered whether anyone other than on the opposition Bench wanted to say something on this—I certainly do. I start by disclosing that I am the chairman of the Prison Reform Trust and the amendments in my name were put down with its support.

The noble Lord, Lord Ramsbotham, is absolutely right with his amendment. Whenever I get to my feet, I am conscious that as a young advocate, I appeared before a very well known judge, Mr Justice Stable, to advance an argument that my client should not be convicted of murder but manslaughter, and he said to me, “Mr Woolf, if you heed my advice, you would not water the brandy”. I fear that by getting to my feet, I may be inadvertently watering the brandy of the noble Lord, Lord Ramsbotham, because, as has been pointed out, if we get rid of the clause as a whole, we do not need to bother with the detail.

As to the detail, if it remains, I urge the House to get rid of the word “exceptional”. It has been used in legislation in the past. Wherever it has appeared, it has caused difficulties, not least because the question is: what is exceptional and what is not exceptional? That gives the advocate a difficult task; probably more importantly, it also gives a difficult task to the judge. You get into situations where judges are tempted to give an exceptionally wide meaning to the word “exceptional”. I remember a case where I did just that, because it created such an obvious nonsense that it resulted in injustice. A great judge, Lord Bingham, took a much narrower view of the meaning of that word than I did. The fact that two successive Lord Chief Justices should interpret that word in different ways illustrates my point.

With regard to the first of my tabled amendments, I urge the House to deal with the word “exceptional” if it allows this part of the schedule to survive. If it is removed, I suggest that proposed new subsection (2B) of Section 177 will have a sensible meaning. It would read:

“Subsection (2A) does not apply where there are … circumstances which … relate to the offence or to the offender … would make it unjust in all the circumstances for the court to comply with subsection (2A)(a) in the particular case, and … would make it unjust in all the circumstances for the court to impose a fine for the offence concerned”.

I do not think that the criticisms that I have made of “exceptional” apply to “unjust”. When judges are sentencing, they are trying daily to achieve a just sentence and if a sentence is unjust they will not impose it. The trouble with Section 177 is that if it is amended as set out in the schedule, it will become a vehicle for causing injustice. If you are sentencing you have lists of sentences for various offences, which you can impose. You might go down the list and decide that a community sentence is the appropriate one. Once a judge has decided that is appropriate, to say that he then has to perform an exercise to see whether that sentence is punitive—and put something else in if he comes to the conclusion that it is not—is really nonsense. It will cause him to do exactly what he has concluded is unjust. He has come to the conclusion that although the community sentence is necessary, it is not necessary to have an additional punitive penalty. From the practical point of view, that really is not a satisfactory outcome.

The other amendment with which I am involved in this group is Amendment 8. Or is that one not being spoken to yet? I apologise to the House; I will come to that later.