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Lord Windlesham: My Lords, we have listened to a remarkable and deeply-felt speech by the noble Lord, Lord Houghton. It is heartening to hear the traditional values of penal reform so eloquently expressed.

I have been interested in the subject of the penalty for murder for many years now. I have sat on two committees. There was your Lordships' Select Committee on which I served with my noble friend Lord Campbell of Alloway and the noble and learned Lord, Lord Ackner. More recently I served on another committee under the chairmanship of the noble and learned Lord Lane, who is present for the debate this afternoon.

Illogicalities and anomalies have arisen in recent years—I stress it is only in recent years—between the mandatory penalty for murder and the discretionary life sentence which covers other forms of homicide falling short of murder, but not necessarily less culpable, and by no means carrying less risk to the public. Some of the diminished responsibility cases, with a conviction for manslaughter resulting in life sentences, carry the greatest risk to the public. Sentencing decisions are exceptionally difficult in that particular field.

One of the problems of discussing this issue is that it has become so extraordinarily complex that there are very few people concerned with public policy and administration who understand the intricacies of life sentences of imprisonment. A good proportion of those who do are present in this Chamber this afternoon.

What we have seen in recent years—I say this to my noble friend at the Home Office since I occupied the same office as she does 25 years ago—is a gradual whittling away of the Home Secretary's decision to decide on the period of time to be spent in custody by an offender sentenced to life imprisonment.

Let us consider discretionary life sentences. I should say that the distinction between discretionary and mandatory sentences only goes back to 1983. I was then chairman of a committee which I believe that the noble Lord, Lord Allen of Abbeydale, who is in his place in the Chamber today, may have had something to do with setting up. It was a joint committee between the Parole Board and the Home Office which reviewed the cases of all life-sentence prisoners. It did not make any difference whether the sentence was for murder or for manslaughter: all cases were reviewed on their merits. Recommendations were made to the Home Secretary as to when it was regarded as safe to release a particular prisoner. It was only in 1983 that the distinction came into existence. Moreover, subject to correction from the noble and learned Lord, Lord Lane, I believe that only from that date did the practice of the Lord Chief Justice making his recommendations in private on what judicial recommendation had been made by the trial judge also come into effect. I am glad to have the affirmation of the noble and learned Lord on that point.

We have now arrived at a situation where discretionary life sentences are governed by judicial procedures. The decision is taken in open court; the

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defendant is present, has been seen in court by the trial judge and is represented by counsel. The sentence is subject, with leave of the Court of Appeal, to review on appeal. That is not so with mandatory life sentences. We are aware that the description is a misnomer in that the mandatory life sentence is not a compulsory sentence for life. It is an indeterminate sentence, containing within it a fixed term. How is that fixed term set? It is set by the recommendation of the trial judge, subject to review, as we have just heard from the noble and learned Lord, Lord Taylor, by the Lord Chief Justice who has little more new information available to him. Indeed, all he can rely on is the fact that he sees a number of such cases. Therefore, he can introduce an element of consistency if he feels that the recommendation is out of line. There is very little else that he can do. Then the minimum term to be served is decided in private by a Minister who has not seen the defendant, who is not aware of the particularities of the case, and who may have other, possibly political, considerations in mind.

For many years it was highly unusual for the Home Secretary not to accept, or to vary, the judicial tariff. But that practice began to change some years ago and now we know, through Answers to parliamentary Questions and judicial reviews in the courts, that the Home Secretary may and quite frequently does, alter the tariff if he feels that circumstances justify it.

We are now looking at just one more step in a laborious process, which is what it has been over the years as a result of decisions taken in this House on the Criminal Justice Act 1991 and in Strasbourg cases at the same time which led to separate handling for discretionary life sentence cases. There have been further cases involving judicial review, many of which have arisen as a result of the decisions of the Court of Appeal and in some cases of the House of Lords.

We are moving bit by bit to a new situation. So long as we have a fixed term within the indeterminate sentence—the minimum period of time to be spent in custody by the convicted offender—that is a sentence. What we are looking at today is just one more step, not a large step, towards a process of fairer justice which would have an end result which it is hard to deny. With all the strength at my command, I support the case put forward by my noble and learned friend Lord Ackner.

4 p.m.

Lord Lane: My Lords, perhaps I may make one or two remarks in support of the amendment. My only excuse for rising to speak at all is that, as my noble friend Lord Windlesham has just indicated, over my last few years in the position of Lord Chief Justice I had the task of considering upwards of 300 life-sentence cases every year—some of them mandatory and some of them discretionary—and of sending my recommendations on a pro forma to the Home Secretary.

It is all too easy to overlook the object of the exercise and the object of all these procedures. That object is not to preserve the powers of the Home Secretary or political powers; it is to do justice, as far as possible, to

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the prisoner, on the one hand, and to try, on the other hand, to ensure—again as far as possible—the safety of the public.

In order to do justice, there are certain fundamental, simple requirements. The first is that the facts should be ascertained and known to the person who is determining the sentence. At present the trial judge is the only person who has a full command of the facts and even he does not have it in every case. The Lord Chief Justice certainly does not have a full account of the facts. He has a précis—or used to have in my day; I do not know whether it is still the same—of the facts, and a précis only. The same goes for the Home Secretary in whose hands the matter finally comes to rest.

The second requirement is that the arguments of counsel on behalf of the prisoner should be heard by the sentencer—the prisoner's representations. One then hears the other party's argument as part of the fabric of justice. The third requirement is that there should be a right of appeal. Of course, human fallibility is to be found in sentencing as in every other aspect of our lives. Finally, justice can be done only if the matter is heard openly so that the public can see what is going on and the basis upon which the Home Secretary—the final determinant—has reached his conclusions.

Certainly those last three requirements are not fulfilled at the moment. The amendment would go at least some way towards filling the gaps, which are all too prevalent at present, in those requirements of justice. I shall not go on any longer because all the other arguments have been set out so clearly and so plainly by my noble and learned friend Lord Taylor, the noble Lord, Lord Windlesham, and indeed my noble and learned friend Lord Ackner. That is all I need to say.

Baroness Elles: My Lords, I should like first to thank the noble and learned Lord, Lord Ackner, for setting out so clearly the purpose of the amendment and also other noble and learned Lords for setting out both what the amendment is intended not to do and the principles upon which it should be adopted. Not having ever practised at the criminal bar, I find myself in a rather extraordinary position today. I have observed with some amazement the practice of some learned judges who have carried on for 30 years since the 1965 Act in a manner in which some of them now consider to be unprincipled, unjust and unfair. Therefore, I wonder whether the amendment proposed is one which would remedy the defects which clearly exist in this case.

The noble Lord, Lord Houghton of Sowerby, to whom I know we all listen with the greatest respect, was asking for the abolition of the mandatory life sentence. I would remind him that that Act was adopted in 1965 during the period of a Labour Government. So it seems that they had time to consider the issue. I am sure that many of us in the House would like to see the mandatory life sentence as a principle abolished and to go down what might be called the slippery slope towards discretionary life sentences along the lines touched upon by my noble friend Lord Windlesham. But we are faced with the legal position that in the case of a mandatory life sentence the trial judge is giving only a recommendation. He is not making a decision.

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The idea that we shall rectify that procedure by giving someone the chance to go to the Court of Appeal on a recommendation is the anomaly. It is not that the anomaly exists; we are creating an anomaly in the legal procedure. That is probably not the best way to go about the matter. Those of us who studied the classics so many years ago will remember that it was said that injustice arises when it is sought to impose equality among the unequal, just as much as injustice arises when one is imposing inequality among equals. That principle attaches to the way the amendment is being proposed. I am certain that all of us in the House wish to see justice done. We wish to see fairness. Many of us, as I say, would wish to see mandatory life sentences abolished, but I do not believe that this is the right amendment to do that. It will create more anomalies.

In conclusion, perhaps I may draw attention to the statement made by the noble and learned Lord the Lord Chief Justice in Committee (8th June, col. 1480) when he said that he would issue a practice direction saying that judges should implement Section 1(2) of the 1965 Act in all cases of murder, save perhaps for some very exceptional reason. If we are going to introduce a practice direction, it should apply in all cases. I believe that we are once more creating a new anomaly. I suggest to my noble friend the Minister that she rejects the amendment, and that at some later stage we should look at the question of mandatory life sentences to see whether a more suitable, fairer and more just way of proceeding should be introduced.

To come to the House after 30 years of the Act being in force, the judges having carried out to the best of their ability, as we hope, justice in this country, and to tell us that there is no justice in the way it is being done is not a strong argument in favour of the amendment.

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