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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: My Lords, some 52 years ago in a case in your Lordships' House called the General Medical Council v. Spackman, Lord Atkin, one of my most distinguished predecessors, made the following observation:

    "Convenience and justice are seldom on speaking terms".

The validity of that proposition will be amply borne out by the debate on my amendment. It will be my submission that the requirements of justice are the foundation of the amendment, whereas the demands of convenience dictate the Government's opposition.

I wish to make good my observation. As your Lordships know, there are two types of life sentence. There is the mandatory life sentence which applies automatically to all cases of murder; there are no longer categories of murder because that proved unworkable. Murder, therefore, applies to a whole range of killings from the mercy killing through to the excessive use of

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self-defence, through an intent to do grievous bodily harm (the intent to kill is not necessary) up to the worst type of murder, terrorism.

The other type of life sentence is the discretionary life sentence, the sentence which a judge is entitled to impose if he thinks it appropriate, in a wide range of cases covering attempted murder, manslaughter, cases dealing with explosives and the like. Those cases can involve offenders who are a great deal more dangerous and more of a risk to the community than those convicted of murder. I believe that your Lordships had an example last week of a man who entered a school and sprayed bullets around, not killing but obviously attempting to murder. He had life sentences imposed upon him.

Since 1991, there has been a significant difference between the procedures relative to the two types of life sentence. It has come about as the result of decisions in the courts and in the European Court. Until those decisions, the alteration had been strongly resisted by the Government. I draw the attention of the House to the Criminal Justice Act 1991, and in particular to Section 34. It relates to discretionary life sentences. Under that section a judge may specify what is known as the relevant period; namely, the period to cover retribution (a rather pompous name for punishment) and deterrence. There remains, quite apart from the relevant period, the time that is necessary to expire before the offender is safe to be released. The judge specifies the relevant period, be it 10, 15 or 20 years.

In 1993, the Lord Chief Justice passed a practice direction stating that that section should be resorted to by judges except in very exceptional cases. The consequence of the section and the practice direction is quite simply that the judge in the discretionary life sentence hears submissions from counsel in open court. He then decides what is the relevant period for retribution and deterrence. There is then available an appeal. If and when the case goes to appeal, once again the Court of Appeal Criminal Division hears submissions and decides whether the trial judge was right or wrong and, if he was wrong, corrects the decision.

There has thus been produced not only a consistency in regard to how the discretionary life prisoner is treated, but there is also—this is very important, and it caused the noble Lord, Lord Campbell, to agree to support the amendment on the last occasion—the cessation, as the result of this procedure, of the behind-the-scenes correspondence—

Lord Campbell of Alloway: Will the noble and learned Lord forgive me for intervening? I did not support the amendment. I supported the recommendation in open court and sought time to consider what was said. I thank the noble and learned Lord.

Lord Ackner: I am grateful to the noble Lord. My only reference is to column 1480 of Hansard. Following a number of questions directed by the noble Lord to the Lord Chief Justice, the noble Lord made this intervention:

    "I am grateful to the noble and learned Lord [the noble Lord, Lord Taylor]. The views of the noble and learned Lord the Lord Chief Justice as to the type of practice directions that will be given

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    will be recorded in Hansard. It is on that basis of implementation that this amendment is supported".—[Official Report, 8/6/95; col. 1480.]

That sounds pretty clear to me.

As I was saying before the intervention, one of the consequences is that there is no behind-the-scenes correspondence, as exists at the moment in the mandatory life sentence, with the trial judge indicating by confidential letter what he believes should be the appropriate period for retribution and deterrence, and a similar letter by the Lord Chief Justice, who, having considered the trial judge's recommendation—with nothing else to go on; he has heard no mitigation—gives his view. In other words, it was the transparency that now exists which so moved the noble Lord, Lord Campbell, and others to see the wisdom of openness in this situation.

In discretionary life sentence cases, after the prisoner has served what is referred to (as I have already indicated) as the period for punishment and deterrence, the Parole Board considers whether or not he is safe to be released. If it concludes that he is, that is the end of the matter, and there is no discretion in the Home Secretary to prolong his incarceration. The Government, through the Home Secretary, currently have the discretion to decide how long a murderer should spend in prison. I wish to emphasise that this amendment in no way prejudices or detracts from that discretion.

I now turn to the mandatory life sentence. Under Section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 it is provided that,

    "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 under",

the appropriate section.

Last April there occurred the case of R. v. Leaney. Leaney had been convicted of murder. He, a young man, stabbed and killed another young man. The trial judge concluded that there was an element of racialism about the events. He also concluded that Leaney was a danger generally to the public. Exercising the power to which I just referred, he made a recommendation for 20 years. With the leave of the Court of Appeal Criminal Division, Leaney appealed. The court, presided over by the Lord Chief Justice, was not satisfied that there was an element of racialism or that Leaney was a danger. It concluded that the 20-year minimum recommendation was excessive. But it also concluded, with marked reluctance, that it had no power to interfere with the recommendation because it was not part of the sentence: the appeal jurisdiction relates only to a sentence or an order of the court, and this was neither. There were three previous decisions of the Court of Appeal saying exactly the same. Therefore the appeal was dismissed. But the Lord Chief Justice commented that this threw up nowadays, as a result of the 1991 Act, a series of anomalies in the procedure dealing with life sentences which Parliament might wish to take an early step to put right. Leave to appeal was refused.

An hour or two before I rose to move this amendment in Committee, I learnt that Mr. Leaney had applied to this House for leave to appeal. That meant that none of

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the sitting Law Lords could take part in the debate, as one or more of them might be involved in hearing the application for leave and, if leave was granted, hearing the substantive appeal. Accordingly, I said in terms that I would not divide the Committee, since, by the time the matter came up on Report, one might know with greater certainty what was the situation of the appeal. I am happy to tell the House that there is certainty: the application for leave was rejected. That is therefore the end of that case, in the sense that the decision in the Court of Appeal remains as it is. I am told that there was no question of those who heard the application being other than entirely of the view of the Court of Appeal, Criminal Division, both in relation to the recommendation being excessive and to there obviously being a need for an appeal; also, in the final conclusion, that there was no provision for appeal. If the debate continues for long enough I shall hope for the arrival of one or more sitting members of the Lords of Appeal—because my brothers sit until at least 4 o'clock—rather than have your Lordships rely upon the retired Law Lords. But this is not a filibuster speech.

My amendment seeks to provide the same four quite essential requirements of justice which apply to the discretionary life sentences. First, it would enable the judge to hear submissions before he decided upon his recommendation. Secondly, the judge would make his recommendation in open court. Thirdly, there would a right to appeal. Fourthly, as I indicated to your Lordships on the last occasion and as the noble and learned Lord the Lord Chief Justice confirmed, there would be an analogous practice direction to that given in relation to discretionary life sentences, with the resulting cessation of behind the scenes correspondence going up to the Home Secretary.

I should say that, as a result of a decision in your Lordships' House, the gist but not the reasons for the recommendation by the trial judge, the Lord Chief Justice and the Home Secretary, if he disagrees with them, has to be the subject matter of information to the prisoner. However, the letters are confidential and not open to the public. So those four requirements would apply.

What is the basis of the Government's resistance? It is pure convenience—perhaps I ought rather to say undiluted convenience. It arises in the following way. During the debate in Committee, the noble Baroness the Minister agreed that the views of the Lord Chief Justice on what is the tariff, the deterrent and the retribution aspect of the sentence are taken very seriously by the Home Secretary. She also accepted that the Home Secretary places considerable value on the views of the judiciary.

In those circumstances, I cannot understand why the Government should not be delighted with this amendment. It will ensure that the views that the Home Secretary receives are better informed. The trial judge will have heard submissions and made his decision. If it is not appealed, the inference will be that it was a sensible decision. If it is appealed, the Lord Chief Justice, as he indicated on the last occasion, will preside over the appeal. The Home Secretary will have the benefit not merely of the Lord Chief Justice's decision

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as at the moment, but a decision, after having heard the basis of the trial judge's decision, having listened to submissions and with the advantage of having had two brother judges to consult before he gave his view. As the Home Secretary, treats the information with such seriousness, one would have thought that he would be delighted with that better information.

The Minister also conceded that there was a case for wider or broader transparency. That is exactly what the amendment provides. Once again, one might have expected a pat on the back for tabling the amendment.

So what exactly is the reason for the resistance? I indicated that it was convenience. It is convenient because the present situation gives no publicity to the judicial decision as to the correct punishment for the particular case. Where the Home Secretary disagrees, as he frequently does, and departs from the judicial decision, that is not publicised. If a transparent situation—an open situation—which one would have thought reflects very much the philosophy of today—were to prevail, it would mean that the public would be able to see the contrast between the judicial approach to sentencing and the Home Secretary's approach, with the inevitable political input that must occur from time to time. That could be inconvenient.

Therefore, I invite your Lordships to accept the amendment. It was described by Justice in its briefing material as:

    "a modest but useful step towards justice."

I emphasise that it does not affect the Home Secretary's power, which he is anxious to safeguard, to be the final decider of how long a murderer should remain in prison. I beg to move.

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