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Lord Thomas of Gresford: The noble Lord knows that there is no research on the way in which jurors come to their conclusions. However, one would have thought that speculation in a jury room as to what will happen to a defendant forms a serious and important part of their deliberations.

Lord Williams of Mostyn: I said that there is no research and, there being no research, I am not sure that the noble Lord is any better qualified than I am to speculate what goes through jurors' minds. I am simply therefore attending to argument as opposed to speculation.

The present maximum for Section 18 offences is life imprisonment, and it has been that for a long time. The purpose of the amendments for which we struggled--and it was a struggle--was to make sure that the automatic life sentence (so-called wrongly, but it is a useful shorthand) was not to be absolute. The amendment for which we contended was that, in respect of any of the 10 offences specified by the noble Lord, Lord Windlesham, there was no obligation on the sentencing judge to pass an "automatic life sentence". The proviso was there. We urged it and we received much Cross-Bench support. No judge had to impose such a sentence if there were exceptional circumstances relating either to the offences or the offender which justified the court in not passing the "automatic life sentence".

That was the amendment for which I contended. I withdraw no word that I uttered on that occasion. Fortunately, Members of your Lordships' Chamber tended to agree with what was then the Opposition and supported our amendments which were eventually

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passed and became part of the Bill. Therefore, when we speak of "automatic life sentences" it is a useful shorthand, but it is not fully accurate.

Lord Ackner: I may be wholly wrong, but I thought that the amendment which we managed to pass in this Chamber and which was castigated by the government as driving a horse and coaches through the Bill-- I believe that that is the amendment the noble Lord has in mind--related to the automatic minimum sentences. In regard to the life sentences, I thought that the let-out which the Government provided and which the Opposition were not allowed--if I may so put it in this Chamber--to mitigate, was the tariff system; hence the observation which the noble Lord, Lord Williams, made and which I quoted. The amendment related to the automatic minimum sentences.

Lord Williams of Mostyn: There were two amendments. One referred to the fact that an automatic sentence does not have to be imposed if there are exceptional circumstances relating to either the offences or the offender. That relates to the 10 in the sub-category identified by the noble Lord, Lord Windlesham. The amendment to which the noble and learned Lord, Lord Ackner, refers, is whether such a sentence would be unjust. That is a different amendment relating to the minimum tariffs.

Lord Ackner: I am sorry to prolong this matter. The exceptional circumstances had been put in by the government and the government said, "Do not get too excited about this because, as the law stands, 'exceptional circumstances' means once in a blue moon". That is how it came about that "exceptional circumstances" was not considered adequate.

Lord Williams of Mostyn: I believe that the noble and learned Lord is mistaken. However, I shall revisit this as part of my research. My present understanding is quite plain. Exceptional circumstances relating to this subgroup of 10 was an amendment which was passed relating either to the offences or the offender; and the question of whether it would be unjust related to the minima in respect of repeat burglaries and repeat drug offences. But I shall check that. It is possible that it is I who am wrong and not the noble and learned Lord. Whichever one of us is in error, I dare say that we shall feel quite mortified.

Lord Windlesham: This is an important part of our debate because the Minister has to use every argument he can find to defend something which is difficult to defend. The two examples which I gave of six-month sentences were convictions under Section 18; that is why they went to the Court of Appeal and that is why they were upheld after an Attorney General's reference. Leaving aside whether it comes under the exceptional circumstances or a custodial sentence which would be unjust in all the circumstances, does the Minister think that those saving clauses could be used by the courts not to apply the mandatory life sentence? I should have

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thought that the guidance given to sentencing judges by the Lord Chief Justice--I look to my noble and learned friend Lord Ackner for confirmation--would probably say that that could not amount to exceptional circumstances or to a sentence that was unjust in all the circumstances. What answer can the noble Lord give to that speculation?

7 p.m.

Lord Williams of Mostyn: The exceptional circumstances proviso relates to this subgroup of 10.

Lord Windlesham: I am sorry to interrupt the noble Lord. He keeps referring to a subgroup of 10. I think it is a subgroup of eight.

Lord Williams of Mostyn: The noble Lord is quite right. It is a subgroup of eight. It is the same subgroup. We are dealing with paragraph (d) of one subgroup.

I go to my point. The court is not required to pass the mandatory life sentence, which therefore is not a mandatory one if properly so considered, if there are exceptional circumstances relating either to the offences or the offender. If I understand that correctly, it relates to either of the offences--number one or triggering two--or the offender himself. It is for the courts to decide. But it seems to me that if there are two relatively minor examples of qualifying offences, that could legitimately amount to exceptional circumstances which would justify the sentencer in not imposing the automatic life sentence. That is a matter, of course, for the courts to decide--originally at first instance and then to have the guidance and the guidelines from the Court of Appeal.

Lord Thomas of Gresford: Is the Minister aware that special and exceptional circumstances were considered in the case of Beedie (reported in 3 Weekly Law Reports, on page 768, last year, 1997) and that it was held by Lord Justice Rose that they do not mean good reasons; they mean exceptional circumstances so as to take the case completely outside the general rule which is to be applied. "Good reasons" are not enough. "Exceptional circumstances" means exactly what it says.

Lord Williams of Mostyn: I accept that Lord Justice Rose came to the unexceptional conclusion that exceptional circumstances means precisely what it says. I do not know the date of Beedie. I wonder whether it was before or after--

Lord Thomas of Gresford: It was 1997.

Lord Williams of Mostyn: As I was about to say, I do not know whether it was before or after 1st October 1997.

Lord Thomas of Gresford: It was in March.

Lord Williams of Mostyn: I thought that might be so because 1st October 1997 was when the provisions first came into effect. Since then there has been, so far as our researches indicate, only one case where an

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automatic sentence has been imposed. It was a case in which a man was guilty of armed robbery. On the very first day of release from prison he set about another resident at the hostel where he was staying and stabbed him with a knife in the back, the ribs and the chest in an attack that lasted 30 minutes. That happened on the first day out of prison--an automatic life sentence and a tariff of six years was set.

I do not wish to look for support in unlikely quarters, but I believe the noble Lord, Lord Henley, was right in saying that we do not know how these things will work in practice. The experience in practice is so very limited. The commencement date of the provision was 1st October.

It is not entirely plain to me, if this is to be a principled machine-gunning of this subgroup of eight, why paragraph (d) has been selected. I can understand why no attempt has been made to impeach the automatic sentence for attempted murder, soliciting murder, and manslaughter, but what about unlawful sexual intercourse with a girl under the age of 13, or robbery in possession of an imitation firearm, which might just be a plastic water pistol? Is this a principled attack, or is it--dare I question?--simply an opportunist attempt to focus on one part of the provisions? Those with more metropolitan minds than my own might think that opportunism rather than principle was driving some of these observations--not all of them.

Lord Thomas of Gresford: Has the noble Lord changed the principles that he enunciated so clearly and that have been quoted so well by the noble and learned Lord, Lord Ackner? Has his view changed; and if so, why?

Lord Williams of Mostyn: My view has not changed. I believe there ought to be transparency in sentence; I believe the public ought to know what sentences mean; I believe that the present Home Secretary, when in opposition, was quite right in that, in a sense, there has been for too long a collusion between the courts and the lawyers about what sentences really mean.

The noble and learned Lord, Lord Ackner, is always a ready friend in time of trouble because he helpfully reminds me of those words, from which I do not resile. I said that the system should be open. That has been attended to as recently as 22nd January of this year. The Lord Chief Justice issued his practice direction. He said, in respect of what the sentence means in practice, that the judge must explain it, he must set the tariff, he must tell the offender--just as importantly, the victims, the complainants and the public--what the tariff is going to be, and he will have to spell out what it means in practice.

I believe that is entirely consistent and consonant with what I said ought to be an important central aspect of the criminal justice system, particularly in sentencing. I believe that sentencing is not putting a tick in the box, as is done in some North American jurisdictions, where there is no margin for the court to sentence appropriately. There is a margin here--exceptional circumstances relating to the offences or the offender.

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There is a margin on the mandatory drugs sentences--unjust in all the circumstances. Personally, I do not agree with tick in the box sentences, but this scheme does not allow for tick in the box full-stop. It allows for the reasoned introduction by the judge of the consideration of whether the circumstances are exceptional in relation to the offences or the offender so as to make the sentence not appropriate.

To sum up, as they say in other places, I do not resile from anything I have said in the past. I believe in judicial discretion. I believe that if one changes the law one ought to see how it works in practice as opposed to the basis of prejudiced preview. In all the circumstances, I invite the noble Lord to withdraw the amendment.

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