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Lord Lane: My Lords, I am not quite sure whether this is the right time for one of the mothballs to stand up to support the amendment moved by my noble and learned friend Lord Ackner. However, I shall be very brief because my noble and learned friend covered all the points that seem to me to arise. Judges, being human, may make mistakes. They may make a mistake by sentencing over harshly, or they may make a mistake by sentencing too leniently. Hence the right of the Attorney-General, again after many years of argument, to apply to the court to increase sentences which he considers to be over lenient. That is in the ordinary run of the case. But it is just as important—indeed, perhaps more important—that he should have that right when making recommendations in life sentence cases. It is only by that method that the Court of Appeal will be able to produce a body of guidelines sufficiently based upon applications made to it.

At present, in the way that the Minister mentioned, the only way that the matter of an over-lenient sentence can be rectified is if the defendant himself is rash enough to apply to the Court of Appeal, Criminal Division, to have his sentence reduced because it is too severe. If he has the sense to keep quiet and say nothing, as things stand and without the amendment of my noble and learned friend Lord Ackner, there is no method by which the matter can be considered by the Court of Appeal. It is that hiatus—and it is a dangerous one—which the amendment seeks to cure. I therefore support it.

Lord Lowry: My Lords, deluded by my own inexperience, when I saw the Minister's amendment I thought for a moment or two that the Government were accepting the general principle of the suggested amendment moved by my noble and learned friend last week. Of course, that was wrong. I am not being sarcastic when I say that. I realise that when an amendment goes through it is the Government's duty to ensure that it goes to the other place in the most acceptable possible form, even if they do not like the amendment itself. Perhaps I may say, in parenthesis, that I very much hope that the other place will accept this part of the Bill in the state in which it finally leaves your Lordships' House.

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I wish to support my noble and learned friends in what they said about the position of the Attorney-General. I believe that he should be able to appeal or to refer the matter, whichever phraseology one likes to employ. He already can do so with discretionary sentences, including discretionary life sentences. Frankly I did not like that provision when it was introduced. I tried to stop it in Northern Ireland, but I did not succeed. I had a feeling that when one achieved finality, even if occasionally the accused was rather fortunate in his judge, it should be an end to the matter. However, it is not. Therefore, I believe that we should be consistent about the role of the Attorney-General. I have much more heart in saying that because the Attorney-General would be trying to get a recommendation changed and not trying to interfere with something which had achieved finality.

I have just five very short points to make. In being brief I hope that your Lordships will not, for that reason, consider them entirely insignificant. First, the role of the Attorney-General in looking at a life sentence is not quite the same as that of the Executive. That point was made very cogently by the noble Baroness when the point was last debated. Secondly, the Home Secretary is not considering only the same matters as the Attorney-General and the courts when he is coming to his final conclusion. He can take into account certain considerations and he can differ not only from the court but also from the Attorney-General without, indeed, showing disagreement.

Thirdly, the Royal prerogative can now be exercised in a way which can exhibit a difference from something which the Attorney-General, or those acting on his behalf, have been arguing in court. For example, when an accused person appeals against sentence to the Court of Appeal and the Crown presents arguments the other way, what the Home Secretary might finally do may, to the untutored mind, appear to run counter to something which the Crown had said. That, of course, is also true when the Attorney-General refers what he considers to be an unduly lenient sentence to the Court of Appeal. Admittedly, I am talking about the Royal prerogative and not about the statutory procedure in dealing with mandatory life sentences.

Fourthly, why should we not trust the Attorney-General to behave with good judgment and discretion? Why should we foresee that as a complicating factor? Further—and this relates to something that I said last week but which I believe is still relevant—is it not best that the Home Secretary should receive the greatest possible assistance before he has to apply his own mind to the subject?

Fifthly, in deference to the noble Baroness, and confirming what I ventured to say about her last week, your Lordships will have been impressed by the way in which she put the point. I believe that the noble Baroness has a much easier brief this week, but not perhaps one in which she ought to prevail. However, I agree that this is a more open question than the original question of principle. But I still think that it would be very much better if both sides were able to go further if necessary.

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Lord Bridge of Harwich: My Lords, I have but a few words to say. It seems to me that the central issue here is very clear. Surely it must be quite illogical that the Court of Appeal should have power to increase the length of the recommended tariff, which has been made by the trial judge where the defendant has appealed, but no such power where he has not. No amount of technicality can hide that illogicality.

My noble and learned friend Lord Ackner referred with nostalgia to the days when Lord Goddard presided in the Court of Appeal, Criminal Division. I do not regard those days with nostalgia at all. At that time, the power to increase the sentence when a prisoner appealed against it was simply used in terrorem of appellants to keep down the lists. That was most unsatisfactory and that is why it went. Surely the logical thing to do, if one is to allow an increase in the recommended tariff period when an appeal is brought, is to provide some mechanism to enable an inadequately recommended tariff by the trial judge to be corrected when a defendant does not appeal.

Lord Allen of Abbeydale: My Lords, as a non-lawyer, I should like to say just a few words on the topic. I would prefer not to see the clause in the Bill. I find the repetition of the case for it that we have heard today no more persuasive than I found it last week. I thought the Minister's answer disposed of it pretty completely, but I know that that is not the issue today.

I would just make two points. First, I have grave doubts about the drafting. I am not a lawyer but I have had a good deal of experience of drafting Bills. I have also had a good deal of experience of the unsatisfactory result of putting things in at the last possible moment without adequate time for consideration. I sometimes think there is some merit in the procedure in the other place where one cannot amend a Bill on Third Reading.

Secondly, it seems to me that there is a much greater and clearer distinction between the discretionary life sentence and the mandatory life sentence procedure, and that in the case of the mandatory sentence the risk to which the Minister has drawn attention of confusing the role of the Home Secretary and the Attorney-General is considerable. For other reasons, too, I am against the amendment we are now considering.

4 p.m.

Lord Simon of Glaisdale: My Lords, there is really no further argument that needs to be advanced. The case has been cogently and to my mind conclusively argued by my noble and learned friend Lord Ackner. It has been supported by a former Lord Chief Justice, and a former Lord Chief Justice of Northern Ireland. My noble and learned friend Lord Ackner says that his amendment also has the support of the present Lord Chief Justice. Further, your Lordships have heard from my noble and learned friend Lord Bridge, a former member of the Court of Appeal and—may I also say?—a former Treasury devil, so particularly cognisant of the viewpoint of the Executive.

This amendment covers the responsibility of the Home Office, the Attorney-General and the judiciary. I hope that your Lordships will acquit me of egotism if I

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say that I support the amendment as a former Home Office Minister, a former Law Officer and a former judge. There is only one other thing that I would venture to say. The Minister seems slightly minatory about what might happen in the other place. It would be extraordinarily foolish if the Government encouraged the other place, using their Whip, to challenge your Lordships' view carried so strongly in numbers, particularly when one considers that there are 18 payroll votes in support of the Government, and, perhaps even more strongly, when one considers how the voting went in the Division Lobbies. It seems to me that the Government would be in danger of losing the whole Bill because I can conceive of no reason why your Lordships should change their view after such cogent argument and after such consideration. For the moment I support the amendment.

Lord Hailsham of Saint Marylebone: My Lords, I wonder whether I could be foolish enough to intervene in this interesting discussion. I was not able for family reasons to attend the debate which was held on the occasion when the Government were beaten by five votes. However, I believe that I have read every word of the debate. I had the most intense sympathy with my noble friend Lady Blatch. She was given an absolutely unrelenting brief by the Home Office with no room for manoeuvre at all and without any technical knowledge of her own to bring to her support if she wished to relent in any way. Therefore no blame attaches to her either for the result or for the fact that she did not make any concession.

I speak now not as someone with a professional background, although I suppose from the time when I was called to the Bar in 1932 to the time when I resigned as Lord Chancellor in 1987 I must have dealt, in one way or another, with 40 or 50 murder cases, even confining myself to that limited range of subjects. I think it is absolutely lamentable that the Government should find themselves—I speak now as a politician—in opposition to what is virtually a united judiciary. They really ought to listen to what has been said by this united branch of most distinguished lawyers speaking on their own subject. I have rather heretical views but I feel that the Government ought to have given way and ought to give way on the substantive issue which was discussed last time and as to which they have introduced what is virtually a drafting amendment but without commitment as to what they will do in another place. It is extreme folly on the part of the Government to disregard professional opinion to this extent.

Having said that, I want to express my own perhaps more foolish view. It all arises from the mandatory life sentence itself. If there were no mandatory life sentence at all attaching to murder—I have said this in both a judicial and a political capacity—this problem would not arise. Why is there a mandatory life sentence? Murder is not a single crime; it is a bundle of crimes of vastly different culpability and wickedness. It includes the doctor who terminates the life of a dying patient in order to save pain. It includes the case which we have seen in the newspapers today of Private Clegg—about which I shall say nothing other than to mention it—who is being let out after four years only. In my opinion he ought never

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to have been prosecuted at all. Murder includes the wickedest crimes. There are two factors which we must bear in mind when we deal with murder or indeed homicide of any kind. The first is that murder is, as I say, a bundle of crimes of vastly different culpability. There is also a sheer lottery about it because it all depends on whether the victim dies within a year and a day. If he does not die within a year and a day, it is not murder; it is an ordinary crime of violence and the offender is subject to the ordinary discretionary laws of sentencing for any other ordinary crime.

Murder is a "result" crime which depends upon the chances of the criminal having been successful in ending the life of the victim within a year and a day. I wonder what possible justification there is in the light of those two facts for the existence of the mandatory life sentence at all. We must also remember that we are dealing in the case of the discretionary life sentence, which is a different apparatus of law, with another rather curious thing. That does not mean life. It can mean life and it has certain permanent consequences attached to it, but it is in fact a sentence of imprisonment for an indefinite period. It is not a sentence for 10, 20, 30, 40 or 50 years, or for the whole of a life.

I believe that the Government should approach the judiciary with a greater degree of respect than they have shown in this case. I do not think I have ever known such unanimity to be expressed from the noble and learned Benches as has been expressed in these two debates. I think a little more give and take ought to be displayed by the Home Office and the Home Secretary on both issues which have been discussed today. I shall not take up any more time by inflicting my variously heretical opinions upon your Lordships.

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