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Baroness Elles: Before my noble friend the Minister responds, perhaps I may contribute modestly and humbly to the debate. I listened carefully to the remarks made by noble and learned Lords. It seems to me that the real question is that of an anomaly. I am not sure that having an anomalous situation is sufficient ground for wishing to change existing procedure. On the other hand, the remarks made by the noble Baroness, Lady Mallalieu, and the points raised by my noble friend Lord Campbell of Alloway drew attention to the fact that there are certain deficiencies in the present procedure which I believe should be remedied, especially as regards private and confidential reporting coming from the judge, who makes a recommendation.

I should like to suggest to my noble friend the Minister that she should perhaps take the matter away, study what has been said, seriously consider the amendment proposed by the noble and learned Lord, Lord Ackner, and try to find a way to improve the procedure without actually changing the process of going to the Court of Appeal merely on the grounds of an anomaly. In my view, that is not a strong enough ground for changing the procedure. However, clearly something must be done; there is something wrong with the procedure. Nevertheless, I do not believe that the amendment goes to the root of the problem.

4.30 p.m.

Lord Taylor of Gosforth: The amendment has my full support. Of course, as has been said—I do not wish to detail again the procedures—in all life sentence cases the tariff, or penal element, has to be set; that is the period which the prisoner must serve in order simply to satisfy the requirements of retribution and deterrence. Until that period is served, the prisoner is not eligible for release on licence. Whether he should be held longer because he presents a danger to the public is another matter.

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However, we have this not merely anomalous and illogical but unjust distinction between the two different classes of life sentence. When a discretionary life sentence is imposed, it is the responsibility of the trial judge to set the penal element of the sentence as part of his order. That tariff is subject to appeal. Thus, the process of establishing that minimum period of detention is conducted in open court and is subject to appeal in open court.

By contrast, the regime in murder cases is quite different. When the mandatory life sentence is imposed, it is the ultimate responsibility of the Home Secretary to set the penal element of the sentence. In exercising that responsibility the Home Secretary has the assistance of recommendations from both the trial judge and from the Lord Chief Justice. That advice has conventionally been given in writing and behind the scenes rather than openly. Since the decision of the Appellate Committee of this place in the case of Doody, that advice now has to be disclosed to the prisoner before the Home Secretary makes his decision so that representations can be made upon it, but it is not subject to appeal.

There are least two reasons why the present system is unsatisfactory. First, the trial judge usually does not have the benefit of hearing argument on the penal element. Therefore, on the crucial issue of how long the prisoner should be detained the judge receives no representations on his behalf. However, its most important flaw is that the process is secretive. Justice in our system is administered in public. It is fundamental that proceedings which lead to conviction and sentence should, wherever practicable, be conducted openly and be subject to appeal. The current procedure involves a quite unnecessary and counter-productive deception on the public.

As the noble Lord, Lord Monson, pointed out in a debate in this Chamber on 27th April initiated by the noble Earl, Lord Longford, the public are confused by the difference between what the noble Lord termed gross and net sentences. Moreover, they hear that a prisoner has been sentenced to life imprisonment but know that in the majority of cases "life" will mean something between 10 and 15 years. Members of the public do not know where on the spectrum any particular case has been held to lie unless the prisoner or his legal representative leaks the judge's confidential advice to the media. This has happened in a number of recent cases and does little, in my view, to bolster public confidence. Happily, Parliament has already provided nine-tenths of a better procedure.

Under Section 1(2) of the Murder (Abolition of Death Penalty) Act 1965, to which reference has been made, a trial judge may, in a case of murder, make a recommendation in open court as to the minimum period which should be served before the question of release on licence arises. This power has tended to be used only in cases of exceptional wickedness when long terms have been recommended. It may perhaps have been equally appropriate to be used in cases where the small degree of culpability, comparatively speaking, would justify much less than the normal sentence, but it has not been so used, and indeed it is rarely used.

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Moreover, such a recommendation, even under the statute when it is done in open court, is not appealable, as my noble and learned friend Lord Ackner has pointed out, and as we ruled recently in the case of Leaney. The amendment before the Committee would correct this anomaly by providing an avenue of appeal, as is the case with, for example, a recommendation for deportation. If the amendment is carried, I would propose to invite judges to regard the procedure under the 1965 Act as the usual course to be followed in all murder cases. Thus the trial judge would make his recommendation in open court having heard representations. If not appealed, that recommendation would go unchanged and unqualified to the Home Secretary. If it were appealed, the Court of Appeal would review it and its views would go to the Home Secretary. There would therefore be only one regime and it would be open to public scrutiny.

I would like particularly to comment on the point raised by my noble friend Lord Renton with whom I am afraid I do not find myself in agreement. He suggests that there is an important distinction between a judge who is making a decision and a judge who is merely making a recommendation. There is, of course, a distinction. That is clear. But it does not go to the merit of this amendment because at present the recommendation for deportation which a judge makes is only a recommendation. It is not binding on the Home Secretary. Yet there is within the statute a right of appeal in respect of that recommendation. How much more appropriate it would be if the recommendation related to a long period of years which the defendant may have to serve.

I would suggest that rather than the Lord Chief Justice single-handed having his input following the trial judge's secret recommendation, if there is to be a review of the recommendation of a trial judge the trial judge should make it in open court and it should be three judges, presided over, if you please, by the Lord Chief Justice, who should have the opportunity to review it. It seems to me that that would not only be more open but would give a better chance of achieving a fair result. Accordingly I would recommend that we follow the amendment proposed by my noble and learned friend Lord Ackner. The Home Secretary's role in setting the final tariff in murder cases would—I emphasise the point—be entirely unaffected by the amendment we are considering. He would be free, as he is now, either to accept or not accept the judicial recommendation.

I have raised the matter already with the Home Secretary who was not, I am bound to say, enthusiastic about it, even though, as I have said, it would make no alteration to his power to decide the minimum period to be served by a mandatory life sentence prisoner. What it would do is to ensure greater transparency in the advice he receives from the judiciary when discharging his responsibility. It would remove the illogical distinction between the open regime of discretionary life sentences and the secretive regime of mandatory life sentences. I support the amendment.

Lord Renton: Before the noble and learned Lord sits down, I wonder whether he would be so good as to consider whether he is content that the other types of advice and recommendation—to use his word—which

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the Home Secretary receives, and must receive, before reaching some of these major decisions, should continue to be given confidentially to the Home Secretary, or whether they should be made public and be the subject of some kind of appeal to the Court of Appeal.

Lord Taylor of Gosforth: I do not know what recommendations my noble friend is referring to. I have already indicated that a recommendation for deportation which a judge makes is open to appeal. I would have thought that this form of recommendation should be treated no differently.

Lord Campbell of Alloway: May I ask the noble and learned Lord to explain something for clarification? Is the noble and learned Lord with me on the point or against me, that the private letter of the judge should cease?

Lord Taylor of Gosforth: Most certainly; I am sorry if that has not been made clear. I thought that I had sufficiently referred many times to openness rather than to a situation behind closed doors. It is precisely to get rid of the behind the scenes letter from, first of all, the trial judge and then, secondly, the Lord Chief Justice that this measure should in my submission be supported by the Committee.

Lord Campbell of Alloway: I am grateful to the noble and learned Lord. The views of the noble and learned Lord the Lord Chief Justice as to the type of practice directions that will be given will be recorded in Hansard. It is on that basis of implementation that this amendment is supported.

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