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Baroness Scotland of Asthal moved Amendment No. 208A:



"LICENCE CONDITIONS ON RE-RELEASE OF PRISONER SERVING SENTENCE OF LESS THAN 12 MONTHS
(1) In relation to any licence under this Chapter which is granted to a prisoner serving one or more sentences of imprisonment of less than twelve months and no sentence of twelve months or more on his release in pursuance of a decision of the Board under section 243 or 245, subsections (2) and (3) apply instead of section 240(2).
(2) The licence—
(a) must include the standard conditions, and
(b) may include—
(i) any condition authorised by section 62 or 64 of the Criminal Justice and Court Services Act 2000 (c. 43), and
(ii) such other conditions of a kind prescribed by the Secretary of State for the purposes of section 240(4)(b)(ii) as the Secretary of State may for the time being specify in the licence.

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(3) In exercising his powers under subsection (2)(b)(ii), the Secretary of State must have regard to the terms of the relevant court order.
(4) In this section "the standard conditions" has the same meaning as in section 240."

On Question, amendment agreed to.

Clauses 241 and 242 agreed to.

Clause 243 [Recall of prisoners while on licence]:

Baroness Scotland of Asthal moved Amendment No. 208B:


    Page 141, line 42, at end insert—


"(4A) In the case of an intermittent custody prisoner who has not yet served in prison the number of custodial days specified in the intermittent custody order, any recommendation by the Board as to immediate release on licence is to be a recommendation as to his release on licence until the end of one of the licence periods specified by virtue of section 176(1)(b) in the intermittent custody order."

On Question, amendment agreed to.

Clause 243, as amended, agreed to.

Clauses 244 to 252 agreed to.

Clause 253 [Interpretation of Chapter 6]:

Baroness Scotland of Asthal moved Amendment No. 208C:


    Page 146, line 36, at end insert—


""intermittent custody prisoner" means a prisoner serving a sentence of imprisonment to which an intermittent custody order relates;"

On Question, amendment agreed to.

Clause 253, as amended, agreed to.

7.15 p.m.

Lord Lloyd of Berwick moved Amendment No. 209:


    Before Clause 254, insert the following new clause—


"AMENDMENT TO MURDER (ABOLITION OF DEATH PENALTY) ACT 1965
In section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 (c. 71) (abolition of death penalty for murder), for the word "sentenced" there is substituted "liable"."

The noble and learned Lord said: We come to a very important and, I suspect, very contentious part of the Bill.

Nearly 40 years ago, the sentence of capital punishment was abolished and a sentence of imprisonment for life was substituted. Nearly 15 years ago, a Select Committee of this House was set up to consider the definition of the crime of murder and, in particular, whether the sentence of life imprisonment should be mandatory or discretionary. The chairman of that Select Committee was Lord Nathan, whom I believe to have been a much respected Member of the House. Many distinguished Members of the House sat on the committee, including my noble and learned friend Lord Ackner, and the noble Lords, Lord Windlesham, Lord Harris, and Lord Campbell of Alloway.

The committee heard a great deal of evidence about how the mandatory sentence had worked in practice. The evidence came from judges, academics and from many others, including the noble Viscount, Lord

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Colville of Culross. With only one dissenting voice, the committee reached the conclusion that the sentence for murder should not be mandatory.

The reasoning was simple. Everything that was intended to be achieved in 1965 by making the life sentence mandatory could be equally well achieved, and perhaps better, by making it discretionary, so that the sentence of life imprisonment could be reserved for the really serious cases—that is to say, cases that on any view deserved a life sentence. In that way, murder would be brought into line with other very serious crimes that carry a maximum sentence of life imprisonment.

The amendment would give belated effect to the recommendation of the Nathan committee. The report was debated in the late 1980s, and almost everyone who spoke in the debate spoke in favour of the committee's recommendations. If the amendment were passed, the rest of Chapter 7 of Part 12 of the Bill, including Schedule 17, would fall to the ground.

The argument in favour of making the life sentence mandatory is, of course, that murder is a uniquely serious crime. That is the argument which is always advanced but I hope to persuade the Committee that that is not so. Even if the crime of murder were confined to the deliberate taking of another life—which it is not—the seriousness of the crime would still vary greatly from one case to another. No one would argue, for example, that a life sentence is always appropriate in a case which is in truth a case of what is often called "mercy killing".

The Committee will perhaps remember the case of the Maw sisters in the 1980s on which the Nathan Committee commented. They were found guilty of killing their father, and there was no question but that the killing was deliberate. However, the sentence of three years which was imposed on the Maw sisters was generally regarded as being too heavy, not too light, because of the circumstances of the particular case. So deliberate killing of another does not of itself make the crime of murder uniquely serious.

However, the crime of murder is not confined to the deliberate taking of another life. The intention to cause the victim serious harm—as all the lawyers present will know only too well—is enough. If the mandatory sentence for murder were abolished—which is the purpose of this amendment—judges could then distinguish between an intention to kill and an intention to cause serious harm falling short of an intention to kill but which happens to result in death. They could then make the punishment fit the particular crime of murder instead of imposing the same punishment on all. That is why the judges who gave evidence to the Nathan Committee, and others, were overwhelmingly opposed to the mandatory sentence of life imprisonment for murder.

Let me give an example from my own experience because I always find that one example carries more weight than any amount of theoretical argument. Members of the Committee may remember the Clegg case. Clegg was a private soldier in the Parachute Regiment serving in Northern Ireland. He tried to stop

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a car after it had been driven through a checkpoint. He fired after the car had passed him and killed one of the passengers who happened to be a joyrider. On the facts as found by the noble and learned Lord, Lord Hutton, then Lord Chief Justice of Northern Ireland, Clegg was found guilty of murder. That verdict was inevitable even though Clegg had acted in the course of his duty.

Clegg then appealed to the House of Lords and his conviction was upheld—a decision of which I was a party. It was not open to us to reduce the conviction to one of manslaughter so there was, as the law now stands and stood then, no alternative to a sentence of imprisonment for life. Fortunately, there was a rehearing on the facts and on that rehearing the conviction was quashed. So in that sense and in that sense only the story could be said to have had a happy ending.

But the point of referring to the case is simply this: to my mind it was quite wrong that Clegg should have had to be sentenced to imprisonment for life for a crime which would otherwise have carried a short, perhaps very short, sentence of imprisonment. To have to impose a life sentence in such a case makes a mockery of the sentencing process, and may even paradoxically reduce the deterrent effect of a true life sentence, as the Nathan Committee pointed out. It is the very opposite of honesty in sentencing to which I believe this Government are committed.

So let us not hear any more about murder being a uniquely serious crime. Some murders are, of course, as serious as any crime could be but others emphatically are not. To have to impose the same nominal sentence for all simply makes no sense. I hope that when she replies the Minister will not rely on that old, old cliche that to abolish the mandatory sentence for murder would send out the wrong signal. If she says that, I should be very interested to know to whom the signal is intended to be sent and by whom it is intended to be received. I beg to move.

Lord Ackner: I am a co-proposer of the amendment and I should like to add a little to what has been said. It is often thought that the mandatory life sentence was a compromise which induced the legislature to drop the mandatory death sentence. It is often thought that to alter that would be going back on that compromise. Those who say that are wrong about what happened.

I shall read from the report of the Nathan Committee at page 32. It stated:


    "During the debates on the Murder (Abolition of Death Penalty) Bill in 1965, there was a strong body of opinion in Parliament that the sentence for murder should be discretionary. The opposition to the mandatory sentence was led by the then Lord Chief Justice, Lord Parker of Waddington, who moved an amendment at the Committee Stage to make the sentence discretionary. His amendment was accepted by 80 votes to 78. Eleven Peers who held high judicial office voted. All but one were in favour of the amendment. The exception was the Lord Chancellor, Lord Gardiner, whose opposition was in accordance with Government policy. In the face of Government opposition and disquiet among the sponsors of the Bill, Lord Parker proposed alternative amendments on Report which maintained the mandatory life

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    sentence, but gave the court power to recommend a minimum period of time which, in its view, should be served. These amendments were accepted without a division in either House".

There is this constant reference to murder being a uniquely heinous crime. Lord Hailsham, a former Lord Chancellor, dealt with that point in his speech in R v Howe in the House of Lords in 1987. He said:


    "Murder, as every practitioner of the law knows, though often described as one of the utmost heinousness, is not in fact necessarily so, but consists in a whole bundle of offences of vastly differing degrees of culpability, ranging from brutal, cynical and repeated offences like the so called Moors murders to the almost venial, if objectively immoral, 'mercy killing' of a beloved partner".

The report continues:


    "Some cases of murder will be less grave than some cases of attempted murder, or of manslaughter, or of causing grievous bodily harm with intent. The organisation JUSTICE has examined in some detail over 200 cases over the last 30 years and concluded that the circumstances giving rise to murder vary infinitely so that the relative heinousness of the crime covers the whole spectrum from the tragic mercy killing to the most sadistic type of sex murder of young children".

The noble and learned Lord who was then Lord Chief Justice, who gave evidence before the committee, made the point—it is very important—that, in discretionary life cases, the seriousness of the offence is often greater. The report recorded that:


    "The opinion of the Lord Chief Justice is that the problem of dangerousness arises in a more acute form in relation to offences other than murder. Rapists and arsonists may be much more likely to commit the same sort of offences than a murderer; and they are dealt with by passing a life sentence or a sentence which is somewhat longer than would have been necessary without the element of risk. The abolition of the mandatory sentence would involve only a slightly increased risk.


    In so far as a mandatory life sentence is justified by the special problems of estimating the chances of future violence by those who have killed once, the existence of the special defences such as diminished responsibility and provocation"—

as Members of the Committee know, they reduce murder to manslaughter—


    "introduced in earlier times for different purposes, undermines the logic of the sentence by excepting from its scope just those offenders who are most likely to prove dangerous for the future".

The Home Secretary has now lost his power to decide how long a murderer should remain in prison. That happened as a result of a decision of the legal committee of this House, which advised that it would be contrary to European jurisprudence for a politician to have any say in sentencing. Subsequently, a decision of the European Court of Human Rights said just that. What we seek—that the sentence on murder should be discretionary—will no longer take away from the Home Secretary something that he possesses. That is gone already, which was really the political justification for maintaining that the sentence be mandatory, with discretion not entering into it.

I therefore submit that it is quite out of date to hang on to that anomaly. It is wrong from the point of view of evaluating the nature of the crime. A consistent approach—leaving the judges to decide the appropriate sentence—should be allowed to stay. I make it perfectly clear, as did the report, that there would be very lengthy sentences in the really serious

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cases and, in some cases, there would be whole-life sentences so that the murderers never came out of prison. I support the amendment.

7.30 p.m.

Lord Thomas of Gresford: The noble Baroness, Lady Kennedy of The Shaws, talked earlier about the duty of a government to lead and educate public opinion. However, on the question of a mandatory life sentence no government have yet had the guts to lead and educate the public on the realities of murder cases, about which the noble and learned Lords have spoken so movingly.

Those of us who regularly practise in the courts know only too well that there are great differences between cases. For example, the noble and learned Lord, Lord Lloyd of Berwick, referred to the case of Clegg, a soldier. As he spoke, my mind was taken back to a case where I was on one side and Lord Williams of Mostyn—I have been thinking about him very much recently, for obvious reasons—was on the other. That involved the miners during the miners' strike who dropped a concrete block and killed a taxi driver in a taxi taking a worker to work. In all sorts of cases, the degree of culpability differs. Judges are well used to distinguishing a killing caused through depravity from one caused through weakness or a domestic quarrel that is over in a flash, and so on.

The noble and learned Lord, Lord Ackner, referred to the fact that the mandatory life sentence distorts the law. The law of provocation is a highly difficult and complex area that always causes problems. It causes many trials to take place where the facts are gone into at length over many days, simply to establish whether the jury is satisfied that the defendant was provoked into what he was doing and that the provocation was such that a reasonable man would have been so provoked, and therefore the crime is reduced from murder to manslaughter. The problems that have arisen with the law of provocation, particularly with people who suffer physical or mental disability, distort the law entirely.

Again, issues are discussed at length about the intention of a particular person. We have no distinction in this country between an intent to kill and one to cause some really serious injury. Those distinctions exist in other jurisdictions, where differences of sentence can then be passed.

The Liberal Democrats have for many years strongly supported the abolition of the mandatory life sentence. We are wholly behind the amendment.


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