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Baroness Scotland of Asthal moved Amendment No. 212FA:



"(2) In section 8 of the Courts-Martial (Appeals) Act 1968 (c. 20) (right of appeal from court-martial to Courts-Martial Appeal Court) after subsection (1) there is inserted—
"(1ZA) In subsection (1) above, the reference to a sentence fixed by law does not include a reference to an order made under subsection (2) or (4) of section 254 of the Criminal Justice Act 2003 in relation to a life sentence (as defined in section 262 of that Act) that is fixed by law."."

The noble Baroness said: In moving Amendment No. 212FA, I shall speak also to Amendments Nos. 212FA to 212FD, 212HZA to 212HZD and 212HA to 212HG. These are all technical drafting amendments. They arise as a consequence of Clause 262 which interprets the scope of the minimum term provisions as including courts martial. Courts martial have similar powers and disposals to the general criminal courts in England and Wales and are therefore included in the minimum term scheme. Generally, these amendments make the requisite statutory changes for the provision in respect of minimum terms in general, criminal courts to be reflected in courts martial.

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I can give a more detailed explanation but I am sure Members would not wish me to weary the Committee.

On Question, amendment agreed to.

Clause 256, as amended, agreed to.

Clause 257 [Review of minimum term on a reference by Attorney General]:

Baroness Scotland of Asthal moved Amendment No. 212FB:


    Page 148, line 12, at end insert—


"(2) Each of the following sections (which relate to the review by the Courts-Martial Appeal Court of sentences passed by courts-martial)—
(a) section 113C of the Army Act 1955 (3 & 4 Eliz. 2 c. 18),
(b) section 113C of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19), and
(c) section 71AC of the Naval Discipline Act 1957 (c. 53),
is amended as follows.
(3) After subsection (3) there is inserted—
"(3A) Where a reference under this section relates to an order under subsection (2) of section 254 of the Criminal Justice Act 2003 (determination of minimum term in relation to mandatory life sentence), the Courts-Martial Appeal Court shall not, in deciding what order under that section is appropriate for the case, make any allowance for the fact that the person to whom it relates is being sentenced for a second time."."

On Question, amendment agreed to.

Clause 257, as amended, agreed to.

Clause 258 [Life prisoners transferred to England and Wales]:

Baroness Scotland of Asthal moved Amendments Nos. 212FC and 212FD:


    Page 148, line 15, leave out "a relevant order" and insert "one or more relevant orders"


    Page 148, line 29, leave out from beginning to "an" in line 30 and insert "in the case of an offence which appears to the court to be"

On Question, amendments agreed to.

Clause 258, as amended, agreed to.

Clause 259 [Further provisions about references relating to transferred life prisoners]:

Baroness Anelay of St Johns moved Amendment No. 212G:


    Page 148, line 40, leave out subsection (1).

The noble Baroness said: In moving Amendment No. 212G, I shall speak also to Amendment No. 212H. Clause 258 makes provision for the courts in England and Wales to determine the minimum terms for offenders who have been convicted of murder outside the United Kingdom and the other British islands and who consent to be transferred to serve their sentence in England and Wales. Clause 259 sets out the procedure for making such a determination. These two probing amendments seek clarification of that procedure.

First, in relation to subsection (1), I would be grateful if the Minister could explain why the determination is to be made without an oral hearing. Secondly, will she explain the purpose of the order-making power in subsection (7), which at first glance seems to be very wide indeed—particularly as the

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Committee has just debated its concerns about wide order-making powers. Why do the Government need this one too? I beg to move.

Baroness Scotland of Asthal: I hope that I can give the noble Baroness the explanation that she seeks. The legislation provides for a determination of tariff to be made on the papers by the High Court, and there is provision for an offender to appeal against that decision. We are alive to the implications of the Easterbrook judgment, and believe that our arrangements are compatible with Article 6—on appeal it will be possible for the offender to have an oral hearing. That applies to transitional cases and to transferred-in prisoners.

Given the practical situation, we believe there is fairness and common sense in the proposal to make tariff determinations on the papers. Around 600 prisoners who have been convicted have not yet received a tariff. To process all those on the basis of an oral hearing would take a very long time. There should not be undue delay in giving those prisoners a decision on what their tariff will be. Once a determination is given, that minimum term will not be raised on an appeal by the offender, although, of course, that could happen on an appeal against an unduly lenient sentence by the Attorney-General.

The clause struck out by the second amendment is a precedented provision. It appears in Sections 89 and 90 of the Proceeds of Crime Act, and it was used there for the same reason that we are proposing it now. It is a general rule-making power to set up procedures for appeals, and it prevents the need to make complicated amendments to the Criminal Appeal Act 1968.

I cannot yet give fuller details to the noble Baroness of what procedures might be proposed for these determinations and appeals. Officials are working with colleagues in the Lord Chief Justice's office to develop procedures that will deal with these issues fairly and expeditiously. I hope that, with that reassurance, the noble Baroness will feel content.

Baroness Anelay of St Johns: I thank the noble Baroness for her reassurances, which I accept. I shall not return to these matters on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 212H not moved.]

Clause 259 agreed to.

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Clause 260 [Duty to release certain life prisoners]:

Baroness Scotland of Asthal moved Amendments Nos. 212HZA and 212HZB:


    Page 149, leave out lines 22 to 27 and insert—


"(1A) This section applies to a life prisoner in respect of whom a minimum term order has been made; and any reference in this section to the relevant part of such a prisoner's sentence is a reference to the part of the sentence specified in the order." Page 149, line 28, after "(1B)(a)" insert—


"(a) for the words from the beginning to "applies" there is substituted "this section does not apply to him", and
(b)"

On Question, amendments agreed to.

Clause 260, as amended, agreed to.

Clause 261 agreed to.

Schedule 18 [Mandatory life sentences: transitional cases]:

Baroness Scotland of Asthal moved Amendments Nos. 212HZC to 212HG:


    Page 267, line 10, leave out "a mandatory life sentence" and insert "one or more mandatory life sentences"


    Page 267, line 11, at end insert "(whether or not he is also serving any other sentence)"


    Page 267, leave out lines 12 to 14 and insert—

""life sentence" means a sentence of imprisonment for life or custody for life passed in England and Wales or by a court-martial outside England and Wales; "mandatory life sentence" means a life sentence passed in circumstances where the sentence was fixed by law."


    Page 267, line 16, after "who" insert "in respect of any mandatory life sentence"


    Page 267, line 23, after "must" insert "in relation to the mandatory life sentence"


    Page 267, line 33, after "prisoner" insert "in respect of the sentence"


    Page 268, line 20, after "who" insert "in respect of any mandatory life sentence"


    Page 268, line 25, at end insert "in relation to the mandatory life sentence"


    Page 270, line 13, leave out paragraph 16 and insert—


"16 (1) In relation to an existing prisoner, section 28 of the Crime (Sentences) Act 1997 (c. 43) has effect subject to the following modifications.
(2) Any reference to a life prisoner in respect of whom a minimum term order has been made includes a reference to—
(a) an existing prisoner in respect of whom an order under paragraph 3(1)(a) has been made, and
(b) an existing prisoner serving a sentence in respect of which paragraph 3(3) applies.
(3) Any reference to the relevant part of the sentence is to be read—
(a) in relation to a sentence in respect of which an order under paragraph 3(1)(a) has been made, as a reference to the part specified in the order, and
(b) in relation to a sentence in respect of which paragraph 3(3) applies, as a reference to the notified minimum term as defined by paragraph 3(4).
(4) In subsection (1B) (life prisoner serving two or more sentences), paragraph (a) is to be read as if it referred to each of the sentences being one—
(a) in respect of which a minimum term order or an order under paragraph 3(1)(a) has been made, or
(b) in respect of which paragraph 3(3) applies.

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16A In section 34(1) of the Crime (Sentences) Act 1997 (c. 43) (interpretation of Chapter 2 of that Act), in the definition of "life prisoner", the reference to a transferred prisoner as defined by section 258 of this Act includes a reference to an existing prisoner who immediately before the commencement date is a transferred life prisoner for the purposes of section 33 of that Act."

On Question, amendments agreed to.

Schedule 18, as amended, agreed to.

Clause 262 agreed to.


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