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Lord Campbell of Alloway: My Lords, I sought to make two matters plain at Committee stage (Hansard, cols. 1475-76). First, I supported the recommendation being made in open court. But that can be done with a practice direction, without any need for legislation. I also sought time to consider the proposed appellate structure to which the noble and learned Lord referred today.

I tried to find out (col. 1480)—I am grateful to the noble and learned Lord, the Lord Chief Justice, for giving it to me—the information on which he supported the amendment. If I allowed the Chamber to believe that I supported it, such was not my intention. I have indeed considered the matter in the light of what was said at Committee stage and have come to the conclusion that this amendment, which was hailed as a modest step in the right direction, could well lead down a blind alley from which there is no logical escape.

Why is that? On the one hand, on the face of it, the amendment affirms the unique gravity of the offence of murder. That is the only foundation for the mandatory life sentence, with its own disparate sentencing regime. On the other hand, the amendment rejects such a regime designed to mark out such unique gravity from all other offences. It does so by assimilating, as the noble and learned Lord explained, the procedure applicable to the discretionary life sentences, save only as regards the Home Secretary exercising a discretion as to release.

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Having had the privilege of serving on your Lordships' Select Committee on Murder and Life Imprisonment, I totally reject the concept of unique gravity. Personally, I would abolish the mandatory life sentence. But that is not to the point. What is to the point is that the amendment is flawed by an intrinsic, logical inconsistency which could render it unacceptable, irrespective of whether one wishes to retain or abolish the mandatory life sentence. It is claimed that that disparity between the respective sentencing regimes—the mandatory and discretionary life sentences—is unjustifiable, illogical and anomalous. Such is not the case. Such disparity was part and parcel of a deal reflected in Section 1(2) of the 1965 Act and but for which this Bill would not have passed this House. Such disparity was in continuance of the concept that the unique gravity of murder demanded a sentence disparate from other offences to mark the gravity of the offence.

It is that question of unique gravity—it is essentially a lay question—around which the debate on Amendment No. 1, at root, inevitably depends; the concept upon which the mandatory life sentence was introduced and founded, with its own disparate sentencing regime. This is a question which lies with lay people and does not lie within the exclusive province of any lawyer, however eminent he may be.

The cleavage of opinion on whether or not murder is a crime of unique gravity bedevils this debate. On that point, the majority of your Lordships and the Select Committee of your Lordships' House have already said that it is not a unique crime of that order. The minority of your Lordships' House, the Government and another place, said that it is. That was the assumption made in 1965 when the mandatory death sentence was abolished by the same statute which introduced the mandatory life sentence. So it is and has remained to this day. With regard to the suggested anomaly between the sentencing regimes, at Committee stage the noble and learned Lord, Lord Lowry, said,


    "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".—[Official Report, 8/6/95; col. 1481.]

As to the compromise which enabled the Bill to pass, to which I referred at Committee stage, my understanding is based on the information given to me by the noble Lord, Lord Shepherd—who I am relieved to see in his place—who, as Government Chief Whip, was present when that deal was made. He will correct me if I am wrong, but I believe that it was founded upon the concept of unique gravity which demanded a disparate sentencing regime to mark the gravity of the offence, and that recommendations from the judiciary could be made as to the minimum term to be served before release for the consideration of the Home Secretary in the exercise of his unfettered discretion as to the date of release. I hope I have that right.

3.30 p.m.

Lord Shepherd: My Lords, the noble Lord is right in one respect. However, I do not believe, when the deal

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was done as he said, that any of those other matters applied in any of the minds of those involved in the discussions.

As it has been raised, the House may think it helpful for me to explain. As your Lordships know, it was a Private Member's Bill and the Government of the day has no role in the way in which Private Members' Bills are taken through this House. There were splits in all the parties. There was a vote in the House of Commons with Conservatives, Labour Members and Liberals voting together both in support and against the Bill. The situation was similar in this Chamber.

It was at the end when there was a real risk that the Bill could be lost—it related to the anxiety that a life sentence was not severe enough; that it would not be long enough in terms of a prisoner who had committed a specifically vile sort of crime—that a deal was reached between the opponents and proposers of the Bill. The only part that the Government played in that matter was to provide the amendment to meet the wishes of both parties. Therefore, it was not a political deal. We provided services only and never considered the ramifications of what was being proposed.

Lord Campbell of Alloway: My Lords, I thank the noble Lord. As regards the recommendations, I have dealt with the first one and accept it. It was also confirmed by the noble and learned Lord the Lord Chief Justice that the effect of the amendment would be that the Home Secretary would not continue, in accordance with common practice, to obtain a letter from the Lord Chief Justice, but that practice directions along those lines would be issued.

It was claimed—not by the Lord Chief Justice—that this amendment would enable the Court of Appeal (Criminal Division) to give better advice to the Home Secretary. But it is plain beyond peradventure that the Home Secretary rejects that and would wish the current practice to continue. The Home Secretary would want at least two judicial views in every case as only one part of the tariff-setting process which goes far wider than the normal sentencing functions and takes into account broad considerations of a public character.

The letter from the Lord Chief Justice is confidential. Only the gist of it is disclosed to the prisoner and it is clearly undesirable that the letter should be in the public domain. That would inhibit the quality and value of the advice tendered. It may well affect the prisoner and his family to their detriment. It would be inconsistent with the due exercise of an unfettered discretion as to release on the part of the Home Secretary, who is entitled to seek such advice in such manner as he pleases.

As regards the exercise of discretion, it is claimed (at col. 1487 of Hansard) by the noble and learned Lord, Lord Ackner, that the authority of the Court of Appeal, (Criminal Division), would induce the Home Secretary to accept the recommendations of the court as to release, otherwise he would be exposing himself to public criticism. Although it is to be doubted whether any Home Secretary would be so influenced, the fact that he could be is another reason for rejecting the amendment.

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Lord Taylor of Gosforth: My Lords, the rationale behind the amendment has already been explained, with his customary lucidity, by my noble and learned friend Lord Ackner. It was thoroughly debated at Committee stage. I hope today that we may have the benefit of the views (and the votes) of some of those who were excluded from taking part on a previous occasion—members of the judicial committee—because of the pending case to which reference has been made. I do not propose to repeat what I said on 8th June. I rise merely to make some simple points, not so much to explain what the amendment will do, as to clarify what it will not do, which seems to have been a matter of concern on the previous occasion. The debate on that occasion showed that there was some confusion on this score, not least, if I may say so with respect, on the Government Front Bench.

First, the amendment would not affect the imposition of a mandatory life sentence for murder. As we all know, that subject is an emotive one about which many have strong views, both in this House and in another place, where a Bill with Cross-Bench sponsorship was introduced only last week. It is also under consideration by a Select Committee and it is a subject which creates a great deal of interest and varying views countrywide. This has nothing to do with the subject which we are debating this afternoon and I entirely reject the suggestion made by the noble Baroness the Minister, when responding to the debate in Committee, that those noble Lords proposing this amendment were trying to use the debates on the Bill to open up such wider arguments. The amendment assumes that the mandatory life sentence for murder remains. Its aim is to administer the operation of that mandatory life sentence more fairly, more effectively and more openly.

Secondly, the amendment would not affect the powers or responsibilities of the Home Secretary ultimately to specify the length of the penal element of the sentence—that is to say, the length of time which the prisoner must serve for the purposes of retribution and deterrence. These would continue. And in exercising his powers the Home Secretary could still take such additional advice from his officials and from experts as he needed once the judicial process had run its course. He would also continue to be required to consider representations made by the prisoner himself.

Nor do I believe that the amendment involves a breach of what the noble Baroness described as "good legislative practice" by relying upon a practice direction to implement its desired effect. Much of our primary legislation depends upon subsequent administrative action or upon the making of subordinate legislation of one kind or another, and Ministers frequently give undertakings as to the way statutory powers will be exercised. Perhaps even more relevantly, one of the noble Baroness's former colleagues at the Home Office, Mrs. Angela Rumbold, had no hesitation, when moving what is now Section 34 of the 1991 Act in another place, in making undertakings about how that section would work in practice. Those undertakings could be fulfilled only by the Lord Chief Justice making a practice direction, which I did.

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So what actually is the change? The change is that we would dispense with the confidential procedure whereby the trial judge and the Lord Chief Justice fill in a form behind the scenes. It would be replaced with an open system in which the trial judge would give his or her advice in public under the overarching guidance and supervision of the Court of Appeal, presided over by the Lord Chief Justice. The noble Baroness the Minister was very kind to say to the Committee that the Home Secretary placed considerable value on the views of the Lord Chief Justice when making his decision on the tariff and would continue to seek the views of the holder of my office even if the amendment were made. I hesitate to say the number of occasions on which he departs from the advice. But however many that may be, he apparently finds it valuable. With respect, I have to say that it would be quite unnecessary for him to seek the views of the Lord Chief Justice. And may I make it clear that when I give my views under the present convention I have very little information. I have not been at the trial, I do not have the benefit of hearing representations and I have only a brief report from the trial judge.

Under the system envisaged by the amendment the Lord Chief Justice of the day would retain a central role in the system. He would preside over constitutions of the court when appeals were made against a judicial recommendation and so would be responsible, with the assistance of the two other judges sitting with him, for establishing clear and open criteria, according to which other trial judges would be able to tender their advice in the generality of cases after hearing representations from counsel for each side and in the full face of the public and the media. I would have expected an Administration who profess their support for open government to welcome such a move towards greater transparency. The amendment certainly has the support of every judge with whom I have discussed it.

I would like briefly to comment on the observations which have been made by the noble Lord, Lord Campbell of Alloway. I frankly find difficulty in understanding his position. He states that he would personally be against retention of the mandatory life sentence and yet he says that, while it exists, there must be some distinction between the mandatory life sentence and the discretionary life sentence. What is that distinction? It is the miserable distinction that in the more important matter where murder has been committed what is decided is decided behind the scenes, whereas it has to be up front in relation to discretionary life sentences. I personally do not find that a distinction which can be described as anything other than dismal.

But, furthermore, he seeks to justify this stance by referring to what he called a deal that was made at the time when the death penalty was abolished. In so far as a deal was made—I am grateful for the remarks which have fallen from the noble Lord, Lord Shepherd, as to what happened at that time—it was that there would be a mandatory life sentence in place of the death penalty; not anything to do with the mechanics of how that sentence would be worked out or what advice would be

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given, whether openly or behind the scenes. So there is nothing in this amendment which would fall foul of any deal that was done at that time.

Furthermore, a great deal of water has flowed under the bridge since the time when that change was made. Attitudes nowadays are vastly different. They are predominantly in favour of openness, whenever openness can be achieved. In my view, it can be achieved, and I would support the amendment which has been proposed by my noble and learned friend Lord Ackner.

3.45 p.m.

Lord Houghton of Sowerby: My Lords, if I may say so with respect, this debate may be improved a little if we have the voice of a layman. There is something to be said for murderers. We heard very little in the debate last time and we have heard very little in the debate today on the human side of the condition of those who receive a life sentence for their wicked act of murder. If public opinion is that a murderer should surrender his own life and that the death penalty should be imposed as a mandatory sentence of the court, that is one thing. You just kill him and there is no further argument. But the public were not entirely satisfied with the mandatory nature of the death sentence. So there was a fallback in favour of deserving cases, which was the prerogative of the Crown to reprieve a person convicted of murder and convert his sentence into one of life imprisonment.

What the public rarely considers in this matter is what life means in a long period of imprisonment. Is it life after death, or is it life before then, or is it not life at all? That is what the argument is about. I am against the mandatory sentence of life imprisonment. It is cruel and inhumane and has no useful purpose whatever. In my view the argument would end to a large extent if this amendment were carried. As regards the mandatory life sentence, public opinion has caused the recommendations of judges as to how long a convicted person shall serve, partly for retribution and partly as a deterrent. So we are modifying our approach to the sentence of life imprisonment.

If we are to adopt the proposal in this amendment, which I am heartily in favour of, we shall then have another reserve position as regards the use of the sentence for this crime—that is to say, the recommendation of the trial judge as to how long, in his opinion, the convicted prisoner should remain in prison before he is considered for parole. At present I believe that the secrecy which surrounds the recommendations of the trial judge and the supplementary recommendations of the Lord Chief Justice, is an offence against the onus of the administration of justice. If one is to condemn a person to life imprisonment one should consider what sort of life anyone is entitled to live, even in prison. The public are not entitled to shut their eyes to the consequences of their own prejudices in a matter of human affairs. Therefore, when a sentence of life imprisonment is automatically imposed in particular cases, we have to consider what we want to do to the life of that person.

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Most people believe that life imprisonment does not mean life, and neither should it. But it is a sham if it does not. That is where the whole system needs radical reconsideration. We do not send people to prison for life and it would be a downright shame if we did.

In my constituency I had three or four cases of murder. The prisoners went either to Armley gaol in Leeds or to Wakefield. I heard their stories and I went to the Home Secretary. I had grievous cases where the sentence of death would have been a crime in itself. A sentence of life imprisonment for a young man of 23 who slew his child in a fit of passion, having been driven mad at the behaviour of both his wife and child, would have been a very severe penalty to impose on him.

I asked the Home Secretary what life sentences were supposed to do. They were supposed to express the disapproval of society of the heinous crime of murder. But so what. Is there no hope then? Is anything justified if it is done that way? It is very difficult to rationalise emotional thought in the approach to things of this nature. The noble and learned Lord, Lord Ackner, referred to the reply given by the noble Baroness the Minister to the debate on the last occasion, conceding this and that about the merits of what was being proposed, but still the Government were against it.

The Government are against it in this case because of politics. Their policy on crime is to increase the severity of punishment. They believe that the more severe and harsh the law the greater the deterrent will be to that crime. On that basis we should still be hanging people for sheep stealing. I believe that there is no truth either in experience or in logic why such a severe sentence should deter people when, in many cases, it is not within their rational capacity to stop what they are doing. That is one of the basic difficulties with murder. It does not matter what one does to many people convicted of murder because they cannot stop themselves. We are human beings. We have passions, emotions, sadism, aggression and a demand for retribution and retaliation. We are a mixed-up lot intellectually and we cannot always steer the course of reason and sanity. We must make allowances. If we send people to prison for long periods we must give them some hope that they will return to a life of liberty and live out their lives in a most useful way. I support the amendment.

I finish by saying that mandatory sentences are wrong in principle. After one has decided what penalties an offence may have, the courts should be so constituted as to enable the law to be administered with discretion, humanity and, if necessary, with mercy. But at present we have none of those things. In all the circumstances I say that it is politics which is behind this just as much as it is politics behind the Government's refusal to remove the mandatory sentence on pit-bull terriers. I wish that some of the noble Lords who have spoken had come to my aid in 1991 when the Government removed all discretion from the magistrates' courts in England and Wales as regards the sentence to be imposed on a dangerous dog under the Act's definition of what that is.

I must get these little points in because they are relevant to the main argument and important in themselves. Therefore, I wholly support the amendment.

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I hope that the implication is—and these are my final words—that we are on the way to abandoning the mandatory life sentence altogether.


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