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Lord Taylor of Gosforth: For complete clarification on this, I should point out that what I have in mind is a practice direction analogous to that which I gave following Section 34 of the 1991 Act. Section 34 of the 1991 Act is not mandatory upon the judges. A judge may bring Section 34 into effect if he chooses. I issued a practice direction to say that judges should, save in rare circumstances—perhaps where they thought that life should mean life—operate Section 34. The effect of that is that in every discretionary life sentence, save the exceptional ones, the trial judge in open court says what he considers is the minimum period that ought to be served.

As regards mandatory life sentences, what I propose is that if this amendment is carried I would issue a practice direction saying that judges should implement Section 1(2) of the 1965 Act in all cases of murder, save perhaps for some very exceptional reason. That would mean that a judge in every murder case would in open court invite comments as to the length of the period he should recommend from defending counsel. He should then make his recommendation. It should then be open to appeal. On appeal, it would be dealt with by three judges. If consistency is sought, I would be happy that it should be in a division over which I or my successors presided. In that way everything would be done openly and the behind the scenes letter would be done away with in the case of mandatory life sentences as it has been already in the case of discretionary life sentences.

Lord Meston: We on these Benches wish to support this amendment. With respect to the noble Lord, Lord Renton, it seems that so long as judges have the important

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function of making recommendations and having a discretion to make them publicly as an accompaniment to the mandatory life sentence, it surely must be correct that such recommendations can be scrutinised by the Court of Appeal. As the Committee has just heard, this amendment will surely help to ensure consistency, and it is to be hoped that it will encourage greater openness in the making of recommendations. What should reassure us that the amendment will work, and work well, is the promised practice direction which is to come, it is to be hoped, quite soon from the noble and learned Lord the Lord Chief Justice coupled with future guidance from the Court of Appeal which this amendment will facilitate.

Lord Lowry: I too should like briefly to support this amendment in view of all that has been said; but nonetheless, I hope, do so strongly. I recognise the logical reference to the existence of anomalies but perhaps I could remind the Committee that the real anomaly lies in a mandatory life sentence. The Committee will be relieved to hear that I do not propose to argue about that, merely to make a factual observation. It is a grim reflection but true that when sentence of death was the mandatory punishment for murder, that sentence was normally carried out unless there were exceptional circumstances. Since the mandatory life sentence was introduced, it has become abnormal for that sentence to be carried out. That is the background against which we have to consider the proposal.

I wish to make three points. First, when the judge makes his recommendation in open court, as I have always understood the law, and indeed took part in declaring it in another jurisdiction, there is no appeal from that recommendation. Under the proposal, if that recommendation is made in open court, as I think it should be, the accused hears it and can decide whether to appeal. If he does not appeal, that itself is a guide to the Home Secretary, because the accused is apparently content with the fairness of what the judge has said. If he does appeal, the Court of Appeal will hear submissions, will give its decision in open court and will give reasons. That, too, is of paramount assistance to the Home Secretary.

Contrast the present situation where, whether or not the judge makes an initial recommendation, he has the opportunity to advise the Home Secretary. If he has retired or has died, that opportunity will not exist. In any case, the Lord Chief Justice has another duty. Here I speak with some experience in another jurisdiction. The Lord Chief Justice has little alternative but to confirm the recommendation, if one has been given by the trial judge, or else, in exceptional cases, to apply a modifying influence if the judge seems to have gone to extremes in one direction or the other. All that is not of great assistance to the Home Secretary.

My second point is that the recommendation, though not part of the sentence, is very important whether made in open court or later, and should be treated as part of the administration of justice like the trial and sentence. For generations we have subscribed to the view that justice must not only be done but be seen to be done. That is one reason for favouring the amendment. Nowadays we are progressing even further to the view that administrative

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action must be open and be able to be questioned and examined. I understand that the Government subscribe to that view, and so does nearly everybody else.

Thirdly—and some Members of the Committee but not others may consider this important—the amendment does nothing to take away the power of the Home Secretary or interfere with his executive discretion. He still has the last word. If the amendment is accepted, that last word will be pronounced with the benefit of more information and much more useful advice.

I submit that the amendment has everything to be said in its favour and very little against.

4.45 p.m.

Baroness Blatch: I have listened with great interest to the exchange on this issue around the Chamber. The concern shown by your Lordships' House on all matters relating to the mandatory life sentence for murder is well known. However, it would be right for me to indicate at the outset that the Government cannot agree to this proposed new clause, despite the eloquent and learned arguments used in its support today.

This new clause would create a very considerable anomaly were there to be no change in existing judicial practice when it comes to making minimum recommendations in open court in murder cases. Thus, if it happened that the judge made a minimum recommendation under the terms of Section 1(2) of the Murder (Abolition of the Death Penalty) Act 1965, the convicted murderer would have a right of appeal. If the judge chose not to make such a recommendation in open court—which is currently the position in the vast majority of cases—then no such right of appeal would exist. But the judge would still make a recommendation to the Secretary of State in those cases about the period to be served to satisfy the requirements of retribution and deterrence.

It has been suggested during the course of this debate that that anomaly would not in fact arise. It has been indicated that the Lord Chief Justice would issue a practice direction to judges telling them to use their discretion to make a minimum recommendation in all but the most exceptional cases. However, I doubt that it is good legislative practice to pass provisions which depend on the issue of a practice direction to have any reasonable interpretation.

Even if judges made minimum recommendations in all cases, I cannot accept the argument that a right of appeal ought to exist against those minimum recommendations. Where there are avenues of appeal against sentence they are, almost without exception, in cases where the court has the final word on the subject: where the Executive has no power to substitute a different order.

When the noble and learned Lord, Lord Lane (the then Lord Chief Justice), confirmed that there was indeed a right of appeal against the "relevant part" specified by the trial judge in the case of a discretionary life sentence after the Criminal Justice Act 1991 came into effect, he referred to the acid test being that there:

    "was no modification, revision or alternative which could be substituted for that by the Minister".

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That is clearly not the case with a minimum recommendation made by the trial judge in the case of a mandatory life sentence. It is only a recommendation. Parliament has not so far chosen to give the judiciary in the case of the mandatory life sentence anything more than this role in considering the penal element. As the noble and learned Lord, Lord Mustill, said during the course of the Doody judgment,

    "Parliament has not by statute conferred on the judges any role, even as advisers, at the time when the penal element of a mandatory sentence is fixed".

Given that the minimum recommendation is just that—a recommendation—there is surely no case for building an appeal procedure about it. It would mean that that element in the tariff setting procedure alone would be subject to appeal. Not even that of the Lord Chief Justice would be subject to appeal.

It is worth remembering that the fact that a minimum recommendation is made in court is not the end of the matter as things stand. There may be no right of appeal against that recommendation, but there is opportunity for a further judicial view. I know that my right honourable friend the Home Secretary places considerable value on the views expressed as to tariff by the Lord Chief Justice under the current procedures. Where there are differences in the view taken by the trial judge and the Lord Chief Justice, the reasons for that disagreement are given very careful consideration.

Those supporting the proposed new clause have gone to some pains to stress that it would in no way detract from the role of the Secretary of State in tariff setting, or prevent the holder of his office from setting a tariff different from that determined by the Court of Appeal. Indeed, on the basis of this new clause, it would be impossible to suggest that that should be the case.

Successive Home Secretaries have stressed that the views of the judiciary on the requirements of retribution and deterrence are simply one factor—though a very important one—taken into consideration. Other factors, like the need to maintain public confidence in the system of justice are also relevant. That view is not simply one taken by Home Secretaries mindful of their responsibilities in this area, for the noble and learned Lord, Lord Mustill, confirmed during the course of the Doody judgment that,

    "The Secretary of State is compelled, or at least entitled, to have regard to broader considerations of a public character than those which apply to an ordinary sentencing function".

If tariff setting can go wider than normal judicial considerations—and it clearly can—then it seems to me that the intended advantage of Court of Appeal consideration of the judge's recommendation disappears. Rather than in any way improving transparency, it seems to me that it would be likely to cause considerable confusion.

The judge would make a minimum recommendation in court. That may well attract some publicity because, if the case has been reported on, the minimum recommendation will be recorded at the outcome of the trial. This will probably remain in the public consciousness. An appeal to the Court of Appeal which will take place some time later may or may not be reported. Even if it is reported,

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that would not be the end of the case. The Lord Chief Justice would still be invited to give a view. And the decision on tariff would still be made by Ministers. I am not sure that this would be readily understood by the wider public.

I do not suggest that the current procedures surrounding the setting of tariffs should remain immutable. That was the point made by my noble friend Lady Elles. A number of improvements have been made in recent years in terms of the disclosure of information to convicted murderers about tariff considerations. As noble Lords are aware, the prisoners are now informed of the recommendations as to the tariff period made by both the trial judge and the Lord Chief Justice; those serving a mandatory life sentence are invited to make representations on those recommendations; and once a decision has been taken by Ministers, they are told what their tariff is and they are given reasons for any departure from the judicial advice.

There may, however, be a case for greater transparency within those procedures where the general public is concerned. I have noted all that has been said on that aspect. In particular, I know that a committee in another place has been considering, among other things, whether there might be a case for recommending to my right honourable friend the Home Secretary that when tariffs have been set, they are made public as a matter of routine. My right honourable friend has indicated that he can see that there might well be arguments for doing so. At this stage we do not know what the Committee will recommend—but I know that the case for any changes in this area will be looked at very carefully. Therefore I can give my noble friend that assurance.

My noble friend Lord Campbell of Alloway asked whether minimum recommendations should be made in all cases. The Government believe that that should remain a matter for the judge's discretion. But we have heard from the noble and learned Lord the Lord Chief Justice that he would give pretty firm guidance to all judges that they should make a decision in open court. Nevertheless, it remains in law a discretion for the judge.

My noble friend Lord Campbell of Alloway and others referred to the role of the Lord Chief Justice if the amendment were passed. The Home Secretary would still want the views of the Lord Chief Justice. There would not, after all, be appeals in every case in those areas where a judge used his discretion not to make a recommendation in open court. The Home Secretary would want at least two judicial views in every case.

With regard to the Lord Chief Justice's further point, I accept that there is a right of appeal against a recommendation for deportation where the court does not have the final say in the matter. However, a successful appeal against a recommendation for deportation leads to the quashing of the recommendation. If it is quashed, there is nothing for the Executive to consider in due course. That is rather different from the position regarding the recommendation for a minimum period which can be made in the case of the mandatory life sentence.

The strong opposition to the mandatory life sentence, and to the role of the Executive in it, expressed by many in this House, and over many months—indeed, I suspect over many years—as I said at the outset, is well known. I believe that it is concern about the system of mandatory

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life sentence which underpins the amendment. I well understand that the limitations of the amendment have more to do with what is permitted within the confines of this specific piece of legislation than anything else.

This new clause is ostensibly about the fairly minor, though quite complex, issue of a right of appeal against the minimum recommendation made by a judge in open court. However, I do not believe that the wider implications of the new clause for the mandatory life sentence and its operation have escaped your Lordships.

If noble Lords wish to argue for changes to the mandatory life sentence, or for its abolition, that is their right. But I do not believe that the Bill, which has a very important and rather different purpose, is the proper place for such arguments to be aired.

Nor, if noble Lords wish to bring about changes to the operation of the mandatory life sentence, is this amendment the best way to do so. The new clause would introduce more anomalies rather than addressing the anomalies which some have claimed currently exist. I hope that the Committee will not take the decision—whatever its feelings about the system—to vote in favour of such an unsatisfactory change to the law.

I urge the Committee not to attempt to legislate for an appeal which would involve only one part of the tariff setting process. That point was made very well by my noble friend Lord Renton. It is just a part of the process; indeed, it is the early part of the process. It precedes the views of the Lord Chief Justice; it precedes the views of the officials in the department; and it precedes the psychiatric reports, the medical information and indeed the prison reports, too. There may be a case for wider transparency. As I said to the House, I have noted that point carefully. But I urge the House to accept that the issue should be considered as a whole rather than legislated on piecemeal. For all those reasons, I hope that this clause will not be pressed tonight.

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