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Criminal Appeal Bill

3.52 p.m.

The Minister of State, Home Office (Baroness Blatch): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Baroness Blatch.)

On Question, Motion agreed to.

House in Committee accordingly.


Lord Ackner moved Amendment No. 1:

Before Clause 1, insert the following new clause:

("Appeal against sentencing recommendation of trial judge in murder cases

. An appeal shall lie to the Court of Appeal (Criminal Division) against a recommendation by the trial judge to the Secretary of State under section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 as to the minimum period which should elapse before the release on licence of a person convicted of murder.").

The noble and learned Lord said: In one of the briefing papers, I think from Justice, this amendment was commended and correctly described as a modest but useful step towards justice. It is modest because, much as I would like to, it in no way reduces the Home Secretary's power to set the length of time a murderer should remain in prison. It is useful because it cures certain anomalies which exist in relation to life sentences.

As the Committee knows, there are two types of life sentence. There is the mandatory or automatic life sentence which arises when someone is convicted of murder. It does not matter whether it is a murder involving a mercy killing, where the degree of culpability may be looked on as being somewhat small; it does not matter whether it is a case where the murder has been committed as the result of the use of excessive self-defence; it does not matter whether the murderer had no intention to kill but, for instance, in a brawl in a pub used a bottle as a weapon, and his victim was killed.

The other type of life sentence is the discretionary life sentence. That is imposed by a judge in cases where imprisonment for life is an option and where the particular offence, be it manslaughter, be it attempted murder, be it rape or arson, shows characteristics of such seriousness and the risk so great to the safety of the public that an indeterminate sentence has to be imposed.

The Committee will have noted that in the examples I gave of murder, and of the cases where the discretionary life sentence is imposed, one can see cases for

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discretionary life sentences which are much more serious than those which attract mandatory life sentences, both on the facts and on the risk to the public to which those offenders give rise.

Section 34 of the Criminal Justice Act 1991 throws up the first of the differences which arise. It relates to discretionary life sentences, and it empowers the judge, on imposing a discretionary life sentence, to state what he considers to be "the relevant period". That is the period which he considers appropriate for punishment and deterrence, and does not involve any aspect of safety for the public.

That part of the judge's decision is part of his order. It is not treated as a mere recommendation, and, as a result, it is open to appeal. Because it is open to appeal, counsel on behalf of the prisoner has the opportunity to address mitigation to the trial judge, and because it is open to appeal, he has a similar opportunity before the Court of Appeal (Criminal Division).

The practice direction which is relevant has indicated that judges, except in the most exceptional circumstances, should avail themselves of Section 34, and as a result there has ceased to be what many judges find unpalatable: the need for confidential communication between the trial judge, and upwards through the Lord Chief Justice to the Home Secretary, indicating what the trial judge and the Chief Justice think is appropriate for this "relevant period" or what has been previously known as the tariff or the penal part of the sentence.

When one comes to the mandatory life sentence, Section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 provides:

    "On sentencing any person convicted of murder to imprisonment for life the Court may at the same time declare the period which it recommends to the Secretary of State as the minimum period which in its view should elapse before the Secretary of State orders the release of that person on licence".

That subsection was provided in order to indicate that there was the opportunity to ensure that the life sentences which would thereafter be passed in the case of murders would be of a sufficient length to satisfy the public that the offence was being treated with the appropriate seriousness.

Before the 1965 Act, life sentences were of an unusually short duration—two or three years at times, with an overall average of about eight years. Such is the provision in the 1965 Act that last April—a couple of months ago—the case of the Queen v. Leaney was heard by the Court of Appeal (Criminal Division). It involved a stabbing by a young man of another young man who was unarmed. The trial judge considered that there was an element of racism in the offence and thought that the defendant was a particular danger to the public. He therefore made a recommendation under Section 1(2) of the 1965 Act that he serve not fewer than 20 years.

An appeal was brought against that recommendation, with the leave of the Court of Appeal, and the Court of Appeal, having considered the matter carefully on the facts, was not convinced that there was a racist element in it, and decided that the recommendation provided an excessive period. Following three previous decisions of the Court of

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Appeal (Criminal Division) to the same effect, with reluctance it also concluded that the recommendation amounted merely to advice—it was not part of the sentence or order—and accordingly there was no appeal from it.

The court, which was presided over by my noble and learned friend the Lord Chief Justice—whom I am delighted to see here today—drew attention to the anomalies that existed (I have drawn attention to them today): no appeal where the life sentence is mandatory; an appeal where it is discretionary. The court considered that Parliament ought to have regard to that as a matter of urgency.

The court indicated that, in its view, the same openness, the same criteria, should apply to both forms of life sentence. I understand from my noble and learned friend the Lord Chief Justice that if this amendment is accepted, there will be a practice direction somewhat analogous to that given in relation to Section 34 of the 1991 Act. Therefore, except in special cases, the judges will give their recommendation, having heard whatever counsel wishes to say in mitigation. That recommendation will be the subject matter of an appeal, if needs be, and the Court of Appeal will lay down the appropriate guidelines, as it has done in regard to discretionary sentences.

That will mean that unnecessary anomalies are eliminated. It will also mean that in the case of mandatory life sentences it will no longer be necessary for the confidential procedure to be gone through, as it is at the moment to the distaste of many members of the judiciary. Confidential letters are written via and upwards through the Lord Chief Justice to the Home Secretary making confidential reports with regard to the case and making a recommendation. However, as a result of the recent decision of this House in the case of Doody, the gist of the recommendation must now be communicated to the prisoner.

I should point out to the Committee that leave to appeal was applied for by Leaney and refused by the Court of Appeal (Criminal Division). As I was finishing lunch today I learnt that an application for leave to appeal has been made by Leaney to the Judicial Committee. I have checked and confirmed that no possible question of sub judice rule arises in that situation. That is referred to specifically on page 74 of the Companion to the Standing Orders. However, it means that your Lordships will not have the advantage of hearing the views of sitting Law Lords because one does not yet know the fate of the application. I hope that those of us who are not involved in the potential obligation to decide anything in connection with Leaney will be addressing the Committee on this matter.

As I indicated at the outset, this is a modest amendment designed to cure an unjustified anomaly which has arisen historically. I beg to move.

Lord Hailsham of Saint Marylebone: I hope that my noble friend will give favourable consideration to the amendment. I can say so because I am not a sitting Law Lord.

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4 p.m.

Lord Roskill: I venture to intervene because it so happens that almost 30 years ago it fell to me to make the first recommendation under the 1965 Act in a case which the noble Lord, Lord Hutchinson of Lullington, may well remember because he was defending counsel. I shall not mention the name of the case because I know that the man has been released and so far as I know he is still alive. I recall discussing with my noble and learned friend Lord Lane the question of when he should be released and what recommendation should be made to the Home Secretary.

There is a great deal of historical background to the 1965 provision. It was introduced—as I am sure the noble Lord, Lord Callaghan of Cardiff, who became Home Secretary at that time, will recall—because the then Lord Chief Justice, Lord Parker, was extremely apprehensive that with, happily, the final abolition of capital punishment the question would arise of keeping in prison for a very long time those who would otherwise have been executed. Lord Parker was persuaded largely by that formidable Lady, the late Baroness Wootton, to support the campaign for the final abolition of capital punishment. But when the provision was put in the 1965 Act the parole board had not been set up. Lord Parker's fear was that there would be a danger of really dangerous criminals being released very early. My noble and learned friend Lord Ackner said that the average was about eight years. My recollection is that in the case of capital murders the period was about 10 years, but I stand to be corrected by the noble Lord, Lord Allen of Abbeydale, if he is here.

The point is that at that time, in the cases of those people who were released after an average of 10 years there were mitigating circumstances and for that reason they had been reprieved. Obviously, that 10-year period was going to be quite insufficient for the really dangerous long-term criminals. The noble Lord, Lord Callaghan, may recall that in 1968 when he was Home Secretary he asked me to go to the United States to see how the Americans dealt with the problem. I had the most interesting experience because they were facing up to the problem of keeping people in prison for years longer than anyone had ever done. The noble Lord was kind enough to write to me afterwards about my report.

That is the history of the matter, but the whole position has changed radically. As my noble and learned friend Lord Ackner said, as a result of a series of anomalies, partly by judicial decision and partly by legislation, which has not taken everything into account, we have reached a position that is logically totally indefensible. I hope that in due course, when the matter comes back and the outstanding petition has been dealt with one way or the other, the Government will give strong and favourable consideration to it. It will involve reversing the decision of the Court of Appeal in respect of the case that I tried and in which the noble Lord, Lord Hutchinson, appeared. On appeal from me, the Court of Appeal (Criminal Division) stated that there was no right of appeal. I have always regretted that decision because no one is infallible. Human error being what it is everywhere, and in particular in court, it is important that there should be an opportunity of correcting that which may have gone wrong.

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I hope that I have not spoken for too long but I wished to give the historical background to the matter. There is a hopeless anomaly which ought to be corrected if not by judicial decision at least by legislation.

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