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Lord Monson: My Lords, any layman who ventures into these waters does so with the greatest trepidation. Nevertheless, it would be helpful if one small but important point could be clarified. I wonder whether in winding up my noble and learned friend Lord Ackner will say whether his amendment will theoretically permit, in certain grave circumstances, the Court of Appeal to recommend an increase in the period which should be served before an individual can be released on licence, as well as permitting the court to recommend in the majority of cases that it should be reduced or left unaltered.

The Minister of State, Home Office (Baroness Blatch): My Lords, when we last considered this new clause, many of those who spoke in its support drew particular attention to their concerns about the operation

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of the current tariff setting procedure. In order to ensure that there is no confusion on the point of transparency, I want to make clear how the tariff—the minimum period required for retribution and deterrence—is now set in mandatory life sentence cases.

The decision on the period to be served by a person given a mandatory life sentence for murder has been entrusted by Parliament to the Secretary of State. In relation to the penal element, or tariff, the legal position was clearly set out by the noble and learned Lord, Lord Mustill, in the Doody judgment. He said that:

    "Parliament has not by statute conferred on the judges any role, even as advisers, at the time when the penal element of a mandatory sentence is fixed".

Shortly after the trial has been completed, the trial judge completes a standard form of report to the Secretary of State. He includes a description of the offence; the issues before the court; medical considerations, if any; and factors leading to a minimum recommendation. General comments on the case and assessment of future risk are also made. Finally, he gives his view of the appropriate period for retribution and general deterrence.

The trial judge sends the report to the Lord Chief Justice for his comments, which are generally limited to the tariff recommendation. When completed the report is sent to the Secretary of State, usually within two or three weeks of conviction. The whole of this report, apart from opinions about future risk, is sent to the prisoner, together with the other papers, such as records of previous convictions, which will be put to Ministers in due course. We refer to disclosure of the gist of the judicial recommendations because that was the term used in Doody. But I would stress that, in practice, the prisoner sees everything that is relevant to the setting of tariff.

The prisoner is invited to make any representations on the judicial recommendations and the other contents of the report. But he is left in no doubt that the judicial views are advisory and that the tariff will be set by the Secretary of State. The prisoner's representations, along with the judicial report, are then submitted to the Minister, who makes the decision on tariff.

Prisoners see a copy of the report which of course includes the reasons for the recommendations on tariffs, save for any references, as I have said already, to future risk. If the prisoner is to make any meaningful representations, he must have disclosed to him the reasons for recommendations. I must tell the House that that is done.

The procedure enables the trial judge to make a recommendation on the basis of having heard all the evidence and having made an assessment of the prisoner. The Lord Chief Justice sees every case and can bring to bear his wider experience of these cases to confirm a recommendation or offer a different view if he thinks fit. My right honourable friend the Home Secretary regards that advice as very valuable. I am happy to repeat that. Indeed, one of the drawbacks to what is proposed in this amendment is that we would lose that co-ordinating element in cases where there is no appeal against the trial judge's recommendation. I shall say more about that later.

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As I have indicated, the views of the judiciary are made available to the Secretary of State very soon after the trial and, unless there is an appeal outstanding, they are communicated to the prisoner who is invited to make any representations. If, after considering the judicial view and the prisoner's representations, the Secretary of State decides in the public interest that a higher tariff than that recommended is required for deterrence and retribution, the prisoner is given detailed reasons for that decision. And these reasons are, of course, open to scrutiny by the courts through judicial review.

Since the responsibility for decision on tariff lies clearly with the Secretary of State, I submit to your Lordships that this is a much more satisfactory way to proceed than by an appeal procedure which might end up in some cases with a public declaration of three levels of tariff—two advisory and one decisive. To my mind, that is a recipe for confusion for the prisoner, the public and, by no means last, the family of the victim.

The prisoner is aware of the judicial view on which he can make representations. He is told of the tariff set. If there is any departure from the judicial view, he is given detailed reasons. Once the prisoner has been informed of the tariff, we are prepared to disclose both the tariff and the judicial recommendation in individual cases to anyone who asks. The process cannot, therefore, reasonably be described as secretive or behind closed doors. We believe that it is consistent both with the need for openness and with the proper discharge of the serious responsibility which Parliament has unambiguously placed on the Secretary of State.

The amendment has been proposed on the basis that it would resolve an existing anomaly. I believe, as does my noble friend Lady Elles, that the new clause would create anomalies. There are certainly differences between the procedures in relation to mandatory and discretionary life sentences, as was pointed out by my noble friend Lord Windlesham. But differences do not constitute anomalies. Direct comparisons between the two can indeed be regarded as rather spurious. The philosophy, statutory framework and the executive practice of the two sentences are quite different as the noble and learned Lord, Lord Mustill, made clear in his speech giving the House of Lords' determination in the Doody judgment. This House may wish to bring the two sentences into closer alignment. However, as matters stand, there are very real differences between them, and deliberately so. There is no inherent unfairness because mandatory and discretionary life sentence prisoners are more readily compared with determinate sentenced prisoners sentenced for the same type of offences than to mandatory life sentence prisoners.

The noble Lord, Lord Rodgers of Quarry Bank, referred to that distinction and quoted what I said from Hansard. I believe that that is the point at issue because the point at issue is that Parliament has decided that there should be a distinction between those subjects to discretionary and mandatory life sentences. This amendment is dealing with the distinction in the process for both.

As the House knows, in the case of discretionary lifers, the judge now specifies in open court what the "relevant part" will be in the particular case. This term

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represents the penal element of the sentence and is set with reference to the determinate sentence which would have been imposed had it not, in the view of the trial judge, been appropriate to impose a life sentence. The relevant part is an order of the court which determines the minimum period of detention.

The Executive has no power to substitute a different order. It is therefore entirely right that the decision should be appealable. I mentioned during Committee stage that when the noble and learned Lord, Lord Lane (the then Chief Justice) confirmed that there was a right of appeal against the relevant part, he referred to the acid test being that there:

    "was no modification, revision or alternative which could be substituted for that by the Minister".

The judicial recommendation in the case of a mandatory life sentence, on the other hand, is just that; a recommendation. It is subject to modification by the views of the Lord Chief Justice and then to the views of the Secretary of State who makes the final decision, having regard to the recommendations he has received. While the Minister gives very careful consideration to the recommendations he receives, he is not bound to accept them. The trial judge is thus no more than an adviser in the tariff setting process. It seems to us to be inappropriate to erect an appeal mechanism to deal with that advice, which in any case forms only a part of the tariff setting process.

I would emphasise again that although there is no right of appeal against the trial judge's recommendation, there is in every case a further judicial view expressed. Where there are differences in the view taken by the trial judge and that taken by the Lord Chief Justice, the reasons for the disagreement are given very careful consideration.

As I made clear during the debate on this amendment in Committee, the amendment would, on the face of it, create an anomaly. In those cases where the judge made a recommendation in open court, the prisoner would be able to make an appeal against the recommendation, whereas in those cases where the judge wrote to the Home Secretary with his recommendation, he would not.

The Lord Chief Justice has of course indicated that he would issue a practice direction to judges telling them to use their discretion to make minimum recommendations in all but the most exceptional cases. However, it is doubtful that it would be good legislative practice to pass provisions which depend on the issue of a practice direction to have a reasonable interpretation.

I appreciate that the provisions relating to discretionary life sentence prisoners were the subject of such a practice direction. However I do not see the two situations as analogous. It was made clear during the passage of the 1991 Act that the only reason that judges were not to be required to set relevant parts under Section 34 was because there could be exceptional cases where a discretionary life sentence would be passed on grounds of seriousness rather than risk and where life ought to mean life; in other words, where it would be entirely inappropriate to specify a relevant part. The

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practice direction issued by the Lord Chief Justice spelt out the position very clearly for judges—to avoid any possible doubt about the intention of the provision.

A further anomaly, and one which I have already touched upon briefly, is that the Lord Chief Justice has made it clear that, if a right of appeal were in place, he would no longer act independently in advising the Home Secretary on tariff lengths. Instead, he would himself sit in the Court of Appeal in any such case. This would leave the Home Secretary bereft of alternative judicial advice in all cases where there was no appeal by the prisoner against the recommendation. This might be a considerable proportion of cases—and would certainly include those cases where the judge had erred on the side of an unduly lenient recommendation. This means that precisely in those cases where it would be be patently right for the Secretary of State to consider imposing a longer tariff than that recommended, he would have no second judicial view to help him in reaching a decision.

It has been suggested that the role played by the Court of Appeal would improve the quality of advice provided to the Secretary of State. I am bound to say that I do not accept that this would be the case. I do not see what improvement is introduced if the Secretary of State is to receive only one judicial view rather than two in some cases. A number of noble Lords have made clear their support for the idea that minimum recommendations should be made in open court in every case. I do not think that it is unfair for me to point to the fact that judges have had the power for the past 30 years to make their recommendations in public. If the judges choose in future to make such recommendations in all cases because of their concerns about openness, then the Government would have no objection. However, we are happy to leave the matter to the discretion of the judiciary, and primary or secondary legislation is not required for the purpose.

If judges choose to make such recommendations in all but the most exceptional cases then, as I understand the position, there would be the opportunity for a speech in mitigation to be made before any recommendation was made. I hope therefore that I am right in saying that the new clause is not a prerequisite for any such change in procedure. If the judiciary feels strongly on the point the remedy is available to it without needing to introduce an anomalous right of appeal.

If minimum recommendations were to be made on this basis, I would see no reason to do away with the judge's report to the Home Secretary. On tariff, the report would simply summarise the points made by the judge when making his minimum recommendation in open court. However, the Lord Chief Justice would still have the opportunity to comment on tariff, and the whole would be disclosed to the prisoner for him or her to make any further representations.

As regards transparency for the prisoner, I have already outlined in considerable detail just how transparent the process is now. It is, I think, a far cry from the picture painted by the noble Baroness, Lady Mallalieu, during Committee stage of a procedure in which, as she said,

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    "decisions appear to be taken behind closed doors, with no opportunity to challenge, correct errors or persuade in any way".—[Official Report, 8/6/95; col. 1476.]

I mentioned during Committee stage that the Home Affairs Select Committee in another place has been considering, among other things, whether there might be a case for recommending to my right honourable friend the Home Secretary that when tariffs have been set they are made public as a matter of routine. As I said then, my right honourable friend has indicated that he can see that there might well be arguments for doing so. At this stage we do not know what the committee will recommend, but I know that the case for any changes in this area will be looked at carefully.

This new clause does not, as has been stressed, directly affect the Home Secretary's role in tariff setting—except in so far as it is being proposed that he should make his decisions in some, perhaps many, cases without the benefit of a second judicial view on tariff. That in itself would, I think, be undesirable. I also said during Committee stage that the new clause has potentially wider implications for the mandatory life sentence and its operation. We do not, as has been suggested, resist the amendment because the Home Secretary might find it harder to perform his role in tariff setting if the Court of Appeal had considered a case, although this might prove to be the case over time.

I know that many in this House are strongly opposed to the mandatory life sentence for murder and the role of the Executive in dealing with such prisoners. However, this amendment does not—as has been said—alter that position. Instead we believe it introduces confusion and creates anomalies for the reasons I have set out. I wish to put on record my agreement with my noble friend Lord Campbell of Alloway. I took wholly his meaning that he was for declaration in open court in these matters. I have to admit that I personally have some sympathy with that case. That was certainly what I understood his case to be.

The existence of the mandatory life sentence and the arrangements for the management of life sentence prisoners should of course be open to challenge by this House. However, this Bill is not about sentencing. The noble and learned Lord, Lord Lowry, referred to my having been given a difficult brief. I think he probably meant that it was not only a difficult brief but that it was also a bad brief. I believe in the case that I have been given to support at the Dispatch Box and I believe the case is a good one. Personally I do not believe that it is right to have a formal appeal procedure against what, at the end of the day, is a piece of advice—a recommendation and part of a process. I urge the House to accept that mandatory life sentence issues should be considered as a whole rather than legislated on piecemeal. I hope noble Lords will accept that it would not be right for this House to attempt to legislate for an appeal which touches on only a part—and not the most significant part—of the tariff setting process, and which moreover creates anomalies rather than addressing them. For all these reasons I hope that your Lordships will agree that this new clause should not be pursued.

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