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Lord Renton: I venture to disagree with the noble and learned Lord, Lord Ackner. I am happy to say that it is very rare for me to do so. I hope that I shall not be presuming too much if I say that we should all bear in mind the fact that there is a clear division of function between the courts and judges on the one hand and the Home Secretary on the other. It is for the learned judges to apply the law and to make decisions. If there is a question of appeal from their decision, that goes to the Court of Appeal. On the other hand, it is for the Home Secretary, in respect of all people in prison but especially those who are subject to life sentences, to consider whether the Royal prerogative of mercy should be exercised and whether the various opportunities given to him by statute to consider cases of people who are undergoing sentences of any length should be exercised. Of course, the Parole Board, quite separate from the judiciary, has been given its own special function somewhere between the two—the courts and the Home Secretary.

When the Home Secretary exercises his discretion, he is entitled to receive advice from the prison authorities, medical people and from his own officials who, from my recollection, always give sound advice. In the particular case referred to by the noble and learned Lord, he is entitled to consider advice—and it is only advice—given by a learned judge after sentence has been pronounced.

Perhaps I may say with deep respect that it seems to me to be misguided and overzealous that we should pick out that particular advice which the Home Secretary receives and make it subject to all the tremendous efforts that are made when a case goes to the Court of Appeal and ignore the other pieces of advice on which the Home Secretary, by well-established practice, is entitled to rely and does rely. If that were a decision of the judge, I should agree with the noble and learned Lord, Lord Ackner; but it is not. It is merely advice and one of several pieces of advice which the Home Secretary has to consider.

Lord Ackner: Before the noble Lord sits down, he was kind enough to say that we rarely disagree, and I wonder whether this disagreement does not arise out of a misunderstanding.

The noble Lord is anxious that the Home Secretary should receive the best advice possible. This provision simply seeks to ensure that he does receive the best advice because, if the trial judge gets it wrong, that is not the best but the worst advice. If the trial judge makes an error, it goes to the Court of Appeal and the Court of Appeal says that the right advice is X, does not the noble Lord agree that that removes the prospect of the Home Secretary being misled as to what is the appropriate judicial advice?

Lord Renton: With deep respect to the noble and learned Lord, I do not believe that that destroys my argument, in spite of the views expressed by my noble and learned friend Lord Hailsham for whom we all have the deepest respect. In reality, if the advice given by a judge is wrong, that will be manifestly clear in nearly every case. I really do think that on a matter which is not a matter of

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decision but a matter of advice, to invoke the whole process of going to the Court of Appeal is—I hope I am not using the wrong word—overzealous.

4.15 p.m.

Lord Campbell of Alloway: If the purpose of this amendment were to ensure that the recommendation of the trial judge, under Section 1(2) of the 1965 Act, should always be made in open court, such a purpose warrants the unqualified support of all Members of this Committee.

Reference has been made to the anomaly between mandatory and discretionary life sentences. Before turning to that, as to the purpose to which I have just referred, not only has it the merit of fairness and reasonableness, but it will also relieve the tensions aroused by a sense of frustration and injustice which has led to serious disturbances in our prisons. But is it the effect of the amendment that the trial judge should cease to communicate with the Secretary of State by private correspondence? I hope so. Is the effect of this amendment that the practice of the Lord Chief Justice communicating with the Secretary of State will continue or will it cease? If one erects an appellate structure to avoid the anomaly, one may well ask, with the greatest respect, whether the communication system between the Lord Chief Justice and the Secretary of State could not become otiose.

As to removing the anomaly, as my noble friend Lord Renton has said, there are obviously two views about that. In one sense, although the point of view advanced by my noble friend Lord Renton appears to be anomalous, on detailed examination it is not anomalous and should be preserved.

Whatever may be said as to the merits of that, perhaps I may respectfully suggest that the introduction of this appellate structure requires a measure of clarification as to the position of the communication with the Lord Chief Justice and also the secret communication by the trial judge at the request of the Home Secretary because, with respect, I should have thought that that secret method of communication should have ceased years ago.

Members of the Committee may be interested to know how this recommendation under Section 1(2) of the 1965 Act arose. It was part and parcel of a compromise to enable the Bill to pass because it was obvious that if the mandatory death sentence had to be replaced by the mandatory life sentence, no one, save in very rare and wholly exceptional cases, was going to serve a mandatory life sentence. Life did not mean life. The noble and learned Lord, Lord Ackner, has explained that it was designed to ensure that a sufficiently long sentence would be imposed.

That compromise was agreed between Lord Gardiner and Lord Dilhorne to enable that Bill to pass. But it was not particularly acceptable to either of them and it is certainly not understood why, as part of that agreement, that system of secret communication should have been necessary. But perhaps 30 years ago, a more overt system of dealing with the matter in open court had not been considered.

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In conclusion, I ask the Minister whether she accepts that a recommendation by the trial judge should always be a judicial act performed in open court and that the system of the private communication by letter should cease; and, if so, whether the Government would be prepared to introduce or not to oppose an amendment to such effect.

In view of the disagreement as to whether one should remove the anomaly, perhaps I may ask the Minister whether she will explain the Government's attitude to the continuation of that current practice of communication with the Lord Chief Justice. Further, what is the attitude of the Government to the proposed appellate structure under the amendment, bearing in mind the argument as to the anomaly? In the light of what my noble friend the Minister may say, it may well be that one would wish to have time to consider the amendment further rather than deal with it today.

Baroness Mallalieu: As a practising member of the criminal Bar, I wish wholeheartedly to support the amendment moved by the noble and learned Lord, Lord Ackner. My only criticism of it is that it is a small step which does not go far enough. Until very recently a defendant convicted of murder, as the noble and learned Lord said, and sentenced, therefore, to a mandatory life sentence accordingly, had no knowledge of what, if any, communication the trial judge made to the Home Secretary about how long he would have to serve, except in the very few cases—usually those of the utmost gravity—where a recommendation for a minimum term to be served was made at the trial in open court at the time of sentence.

It is also right to say that for many years counsel were largely ignorant even of the existence of the confidential report sent by the trial judge in other cases; and only very recently, as the noble and learned Lord outlined, have the accused and his legal advisers been entitled to know the contents of the report, or of any additional recommendation made by the Lord Chief Justice, or, indeed, of the tariff itself ultimately set by the Home Secretary. At present there is no right of appeal against the recommendations of the trial judge, publicly or privately, of the Lord Chief Justice or of the Home Secretary.

The present position gives rise to very considerable feelings of injustice among those defendants at the receiving end. The decisions appear to be taken behind closed doors, with no opportunity to challenge, correct errors or persuade in any way. Perhaps I may give the Committee one brief personal and recent example. It relates to a middle-aged and totally respectable man convicted of the murder, committed in a rage, of a drug dealer who had been supplying drugs to one of his sons. He had gone to the dealer's house and used a shotgun. At the initial trial the judge directed the jury that they could consider his defence of provocation only in the context of what had happened between the two men after he had arrived, armed, at the drug dealer's home. In those circumstances, scarcely surprisingly, the jury rejected provocation and convicted the man of murder. He was sentenced to a mandatory life sentence of imprisonment. No recommendation was given at the trial in open court. Subsequently, the trial judge privately recommended to

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the Home Secretary a minimum sentence of 12 years. The Lord Chief Justice raised that recommendation to one of 14 years, which was accepted by the Home Secretary.

That man's sense of injustice about the direction of the trial judge was great, but at least he was able to appeal. In the event, the Court of Appeal ruled that there had been a misdirection on the law and ordered a re-trial, at which he was convicted of manslaughter, not murder, and sentenced to eight years' imprisonment. Therefore, he is likely to serve substantially less time. However, he felt a sense of injustice and frustration at being unable to appeal against the private recommendation of either the trial judge or of the Lord Chief Justice. He also felt that the decision of the Lord Chief Justice and the tariff that he set were bound to some extent to have been based on the trial judge's view. His sense of injustice in that respect was, if anything, even greater.

The amendment does not deal with the provision of appeals in relation to other stages in the tariff process. For that reason, I say that it does not go far enough. However, it is a modest step in the right direction and one which I hope the Minister will, on reflection, feel that the Government can accept.

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