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Lord Ackner: My Lords, it will not surprise the House to know that any amendment moved by the Government which is in the interests of justice will be supported by the judiciary; per contra, any amendments which are designed purely for Executive convenience are likely to be strongly resisted. I put that into practice in regard to the proposed amendment by the Government before we come to my amendment to it. I am quite happy for the essential two differences which have been added by the Government; namely, that before one can appeal leave should be obtained either from the trial judge or from the Court of Appeal. That acts as a useful filter. We did not burden our amendment with that detail but, speaking for myself, I am quite happy to accept it.

The other important difference is made in subsection (4) of Amendment No. 2, which provides for quite an unusual situation. If a defendant appeals to the Court of Appeal on the basis that the recommendation was excessive and too severe, he can end up not merely losing that appeal, but finding that the Court of Appeal says that the recommendation should have been even higher than it was. That has the nostalgic flavour of the days when one appealed to the Court of Criminal Appeal at one's danger because the court had the opportunity not only of dismissing the appeal but of increasing the sentence. It is nostalgic of the days before

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Lord Goddard. When he presided, one would listen with intense anxiety as to the fate of one's colleagues as they addressed the court and then hoped that one would be in time, if the wind was blowing in the wrong direction, to withdraw one's appeal before the court was able to deal with it. It gave one a sense of modified triumph when one saw the look of disappointment on the faces of the judges in that court. However, that is what is being proposed and I think that that is significant for a reason that I shall develop later.

Again, speaking for myself, if a person attacks the recommendation as being excessively strong, I see absolutely no reason why the court (which is dealing with a recommendation) should not say, "Since we have to deal with a recommendation and we have guidelines on these matters, we end up saying what in our view is the right recommendation", which is something to which the Home Secretary attaches particular significance. In other words, today—unlike last week—he is saying to what extent the Court of Appeal can be of great assistance to the Home Secretary and he is inviting that assistance in a wholly unfamiliar way, as I have pointed out.

I return to my amendment. The purposes of the amendment which I moved last Monday were as follows. It achieved open justice. It got rid of the behind-the-scenes activities of the trial judge and the Lord Chief Justice who, without much material to go on, advised the Home Secretary as to the penal part of the sentence, the tariff.

Secondly, it equated, so far as it could, the procedure in regard to discretionary life sentences so that one did not have an odd contrast between the discretionary life sentence, often imposed in regard to more serious crimes, and the murder mandatory life sentence. Thirdly, as has happened in respect of the discretionary life sentence, it enabled the establishment of guidelines or clear open criteria, so that judges who are going to make, as they are obliged to essentially under the practice direction, except in rare circumstances, the recommendation after hearing argument in open court know what the criteria are and how to proceed with consistency. Those were the three aims to be achieved.

The noble Baroness has overlooked the fact that the stimulus for my amendment was not some sudden change of tack. The noble Lord, Lord Monson, asked a most perspicacious question in these terms:

    "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".

Before I answered that question in my reply, the House had the benefit of hearing the Minister. There appeared to be an echo of the noble Lord's anxiety in the following terms. The Minister drew attention to the cases where there would be no appeal by the prisoner against the recommendation. She said:

    "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 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".

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I believed, therefore, that when I replied to the question posed by the noble Lord, Lord Monson, I might, sub silentio, receive some applause from the Minister, because I said:

    "With regard to the question which was posed to me as to whether with this amendment the Court of Appeal would have the power to increase the recommendation made by the trial judge, I would have thought the answer is clearly yes. But the procedure which would be adopted would no doubt be by process of the Attorney-General seeking to move the Court of Appeal (Criminal Division) as he does in other cases where it is alleged there has been under-sentencing".—[Official Report, 26/6/95; cols. 547-553.]

In researching the matter, I found that there was a technical problem. Under the Criminal Justice Act 1988, which gives the Attorney-General his power to intervene where sentences are unduly lenient, he must find a "sentence" because he is operating against unduly lenient sentences. Therefore, given the success of the amendment that was tabled last Monday, he could not proceed to intervene unless and until one made the technical amendment so that the word "sentence", which is defined to cover a multitude of oddities in Section 50 of the Criminal Justice Act 1968, was extended yet further. Your Lordships may be interested to know that it already covers recommendations for deportation (which is not a sentence), confiscation orders and declarations of relevance under the Football Spectators Act.

Therefore, in the naive conviction that I was serving not only the interests of justice but achieving what is not always easy—that which the Government wanted—I tabled a simple amendment, which your Lordships will see is now Amendment No. 13. It reads:

    "In section 50 (meaning of sentence), at the end of subsection (1), insert"—

this will come under the definition of "sentence"—

    "and 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".

That amendment would have tied up the technicality.

I used Schedule 2 because it dealt with minor and consequential amendments to a number of Acts, including the 1968 Act, which contains the definition of "sentence". I was therefore surprised to receive a long and, as always, immensely courteous letter from the noble Baroness. It was faxed to me at home last Friday and it contained a copy of the amendment which is being moved by her today. It also dealt with the position of the Attorney-General. Perhaps I may read what the noble Baroness stated in regard to the reintroduction in our legislation of power for the Court of Appeal to increase the severity of that which is being ordered:

    "In considering what I have said above, you will wish to note that the Government amendment"—

that is subsection (4)—

    "would ensure that the Court of Appeal was able to quash the minimum recommendation made by the trial judge and put in its place a recommendation for an alternative period. The Court would not be prevented from making a recommendation for a longer period than that recommended by the trial judge, if that seemed appropriate based on the facts of the case. Whilst the power to increase the minimum recommendation would be unlikely to be used with any frequency, we take the view that there might be cases where the Court of Appeal reached the view that the original recommendation was too lenient. In such circumstances, we do not think that it would

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    be right for the Court to find itself in a position whereby it could not ensure that the minimum recommendation made to the Secretary of State by the judiciary was the most appropriate one".

That is sound thinking but, of course, it relates only to the case in which the appeal is brought by the prisoner.

The only way of dealing with the situation in which the prisoner does not appeal, and therefore puts himself at risk, is via the Attorney-General who since 1988 has had the power, with the leave of the court, to intervene where sentences are unduly lenient. So why on earth not complete the circle and say that the Court of Appeal can make it clear to the Secretary of State what in its view is the right recommendation, not only when the prisoner appeals but when he, with some sense of wisdom, fails to appeal and the Attorney-General intervenes in order to ensure that judicially—because the recommendation has been made by the trial judge—the judicial recommendation does not run the risk of misleading the public in general and the Home Secretary in particular?

Of course, that is all part and parcel, one would have thought—naive though I am—of the Government's policy of stressing how firm they are on law and order and that, so far as they can, they will not allow to be left a judicial recommendation which is clearly under-appreciating the severity of the offence or the danger to the public. That is as I thought was the case.

According to the letter of last Friday, the consideration which moved the Government to resist is stated as follows:

    "As you know, the Attorney-General's power of reference was introduced to ensure that there was a remedy available to the Crown in serious cases when unduly lenient sentences appeared to have been passed by trial judges and where justice demanded that the sentence be increased. With an unduly lenient recommendation a remedy is, of course, already available because the tariff is set by the Secretary of State"—

I intervene there to ask why the Court of Appeal should be given power to increase the recommendation on an appeal by a prisoner—I read on:

    "and the Attorney-General's power of reference would not, therefore, play the very significant role which it does in the other cases to which it applies".

The letter then states:

    "Extending the power of reference in the way you propose would also have potentially serious implications for the workload of the Attorney-General. We could not extend the power without very careful consideration with him and a careful weighing of the merits of such an addition to his role".

It does not need a careful weighing; it needs a simple telephone call to Master McKenzie, the Registrar of the Court of Appeal Criminal Division, which I made about an hour ago. For the past four years, since 1991, the Attorney-General has had the power, and therefore the right, to intervene in discretionary life sentence cases where the judge makes his recommendation in open court.

Consistent with the practice direction in 1993, the judges have been obliged to make such recommendations in all but very rare cases. Therefore, over the years, there must have been a very large number of recommendations made by trial judges. My inquiry of Master McKenzie was very simple. I asked him whether he could tell me how many applications have been made by the Attorney-General—the same judges would be dealing with the mandatory life

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sentence cases—for leave to the Court of Appeal on the basis that the recommendations were unduly lenient. Without a moment's hesitation, because all the applications come before him, he said that there had been none.

Where is that heavy workload coming from? The same judges will be making the recommendations in the murder cases who make them in the discretionary life sentence cases. So far, their record is such that they have not apparently under-recommended or substantially under-recommended. Why should there be any difference in relation to the same judges going through exactly the same motions as regards murder cases? Why has that simple telephone call not been made?

I suggest to your Lordships again that the main consideration in the Government's thinking on this subject is Executive convenience; it is not justice at all. It was the conflict between those two considerations which lost the Government the amendment which I moved last Monday. There is a risk that the Attorney-General may not take the same line as the Home Secretary. He may move in cases in which the Home Secretary wished he did not; or when appearing before the Court of Appeal, having obtained leave, he may put forward what he considers is the right recommendation cheerfully adopted by the Court of Appeal Criminal Division. Of course I speak only from a convenience point of view. But what will then be the situation when publicly the Home Secretary doubles that which both the Attorney-General and the Court of Appeal Criminal Division have endorsed? There may be inconvenience and there may be embarrassment, but if the Attorney-General is kept out of the matter so that it is a one-sided situation, that problem does not arise.

There is a strange pettiness about the Executive's approach to this clear matter of justice. I invite your Lordships to take the view that there is no earthly reason why this amendment should not be accepted. To say that we are injecting something quite different from that which was contemplated by the House is quite wrong.

The noble Lord, Lord Monson, raised the point. I did not raise it. I plead guilty to that for two reasons: first, I did not realise the technical problems which would have to be surmounted; and, secondly, I assumed—hence the somewhat confident telephone call to Master McKenzie—that the Attorney-General would not have been very active on this subject. Therefore, it had not entered my mind that it would be necessary. But, quite clearly, from a theoretical point of view the power should exist. It exists with regard to discretionary life sentences because when the judge makes his recommendation in those cases there comes into existence an order. Because that happens, power is given to the Attorney-General under the 1988 Act to intervene in relation to any sentence since a sentence is defined by Section 50 of the 1968 Act as including any order.

As I have indicated to your Lordships, this is a simple, technical matter involving no form of major alteration. It is merely a tidying-up operation which I overlooked. I should tell your Lordships that I have spoken to my noble and learned friend the Lord Chief Justice, who endorses wholeheartedly my recommendation and my amendment.

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The noble Baroness has criticised the drafting of my amendment but she has not criticised the drafting of the amendment to Schedule 2. For my part, she may make her choice. The amendment to Schedule 2 achieves exactly the same objective. But when the noble Baroness tabled her amendment I thought, returning the compliment, that as a matter of tidiness it would be better if everything on this subject were dealt with in one place and that one should not look for the position of the Attorney-General in the schedule but that it should be found all in one section.

I need not take the matter much further. This is not a filibustering speech, as I mentioned with regard to last Monday, but the sitting Law Lords are still, as one would expect them to be, sitting, although I have little doubt of their support. The retired Law Lords, genially known by their brothers as members of "the mothball fleet", are here in quite extensive numbers. I beg to move.

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