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Baroness Blatch: The amendments will take away from my right honourable friend the Home Secretary his powers to set the tariff to be served for retribution and deterrence for those sentenced to detention during Her Majesty's pleasure, the mandatory sentence for juveniles convicted of murder while under the age of 18.
Our well established position is that the Home Secretary has a legitimate and valuable role in the sentence imposed on those convicted of the unique and heinous crime of murder, whether they be adults or juveniles. This role is essential in establishing the distinctive nature of the penalty for murder.
To remove the role of the Home Secretary would downgrade the unique seriousness of the offence. It would mean that the penalty for murder committed by
juveniles would operate in exactly the same way as the life sentence for those offences where it is the maximum rather than the only penalty.Murder is unique because it involves the deprivation of another person's life with the intent at least to cause them grievous bodily harm. It is an offence generally regarded by society with revulsion. The current arrangements allow for regard to public confidence in the criminal justice system to be taken into account and mark out the uniqueness of murder. The Home Secretary's decision is principally informed by the recommendations of the trial judge and the Lord Chief Justice. However, he takes into account all relevant factors, which may include, as your Lordships' House sitting in its judicial capacity agreed in the case of Doody,
- "broader considerations of a public character than those which apply to an ordinary sentencing function".
The unique value of the Home Secretary's role lies in his ability to consider these broader considerations which judicial recommendations may not adequately reflect. Such considerations as setting the tariff for those convicted of murder is a role which falls properly to the executive and which cannot be taken by anyone who does not have the same level of direct accountability to Parliament. If the courts were to set the tariff, there would be no direct accountability to Parliament for the decisions taken, which we believe, given the particular nature of the offence of murder, there should be.
Members of the Committee may be aware that the House, sitting in its judicial capacity, has recently heard the appeal against the Court of Appeal's ruling last summer in the cases of Thompson and Venables. Thompson and Venables are the two boys convicted of the murder of James Bulger. They sought judicial review of the Home Secretary's decision to set a tariff of 15 years in their cases. Although the Divisional Court questioned the Home Secretary's powers, the Court of Appeal ruled that the Home Secretary's tariff-setting powers for those sentenced to detention during Her Majesty's pleasure were lawful. We await the judgment on the appeal. I hope that the noble Lord will not press his amendments.
Earl Russell: I must apologise to the noble Baroness for speaking after her. While my noble friend Lord Thomas of Gresford and I were deferring to each other as to who should speak next, the noble Baroness leapt into the breach with great speed and anticipated us. Perhaps I may take the opportunity to make a few remarks now.
Two issues arise from this amendment, which I think should be considered separately. One is the respective roles of the judiciary and the executive in fixing the length of punishment. That is an issue with a very long history. The basic purpose of the rule of law, as people in this country have fought for it over many centuries, has been to shift the balance to bring the process of deciding on detention more under the control of the judiciary and less under the control of the executive. My noble friend Lord Lester of Herne Hill mentioned Chapter 39 of Magna Carta--the due process provision. That arose from the conduct of King John, who on one
occasion imprisoned somebody for no better reason than, in his own words, "because we were cross with him".There is always a balance to be struck between the prerogative of the Home Secretary and the powers of the judiciary. It is a matter of some concern that that balance may be tilting a little in the Home Secretary's direction. That point was addressed by my noble friend Lord Meston.
My other point concerns the treatment of the young. It is a fairly recognised procedure that, when dealing with younger offenders, one must be more capable of considering the arguments for mercy than perhaps with those one considers might be old enough to know better. That is a point of some substance. It is also an area in which we must consider circumstances. In all sentencing one should consider circumstances, but it is particularly important when considering sentencing those between the ages of 16 and 18. The noble Baroness and I have already crossed swords today at Question Time. But she must be aware, because we have had so many exchanges on this point, that people between the ages of 16 and 18 are not as a general rule free to claim benefits.
Let there be no mistake, crime is crime regardless of the circumstances. I do not wish to say anything which casts one moment's doubt on that. But the noble Baroness will recall the study by the South Glamorgan Tech of teenagers in South Glamorgan. It was shown that about one sixth of that age group at any given time was without visible legal means of support and therefore had no legal way of getting anything to eat. During one exchange with the noble Baroness, I quoted from that report that among that group of people the word "shopping" meant shoplifting. She told me that I was shockingly cynical to have said any such thing.
First, I had quoted the words of an academic study, which I believe I was entitled to do. Second, I do not feel that the noble Baroness took on board that I referred to people whose only other option was starvation. I have said that it does not excuse them but it could be something which could count towards the mitigation of a justly imposed penalty. My noble friend's amendment would make that possible and to me it is a very big point in its favour.
Lord Ackner: I expected to hear the noble Baroness utter the time hallowed phrase used in previous debates that murder is a uniquely heinous crime. I still find it difficult to accept, when thinking back to the case of Private Clegg. If that was a uniquely heinous crime, why was he given his freedom after some two and a half years? There was no issue but that he killed and intended to kill. What is uniquely heinous about the murder--it is murder--resulting from mercy killing? There is an intention to kill. But no one could look on that as being in the same category as murder carried out in an outrageously violent way.
The unique feature is said to be killing with intent to do grievous bodily harm. But that occurs in manslaughter cases, where the reason for reducing the
crime from murder to manslaughter is provocation: there was an intent to kill but to kill in circumstances which provided a defence of provocation.I recall, I hope correctly, that the all-party Home Affairs Committee, while maintaining that murder should still receive an automatic life sentence, said that the Home Secretary's involvement should be removed and he should not set the tariff. The reason given--it was an all party committee--was that a politician deciding in private for how long a person should lose his liberty was repugnant to anyone with an ordinary sense of justice.
In those circumstances, it seems to me to be totally unjustified to cling on desperately--which is what the Home Secretary has been doing throughout all our debates on this subject--to the power to fix a tariff. In doing so, he deprives the accused of any right to challenge what he has done. Where the tariff is fixed by a judge, there is a right of appeal. First of all, one has the benefit of argument in open court as to what the tariff should be; then, a reasoned judgment in open court is provided; and there is an appeal, when the same process is gone through. But apparently the Home Secretary feels that it is just and proper for him to retain that tiny segment of power. I can only suggest that the reason is power for the sake of power. I wholeheartedly support the amendment.
5.45 p.m.
Lord Thomas of Gresford: The Minister justified retention of the right of the Home Secretary to fix the tariff in respect of children on the grounds that for a judge to fix that tariff would downgrade the unique and heinous nature of the crime. I do not see how that follows. I am in accord with the views expressed by the noble and learned Lord, Lord Ackner, when he pointed out that murder is a crime which can vary from a killing in the course of rape or robbery to a killing as a result of domestic violence all the way through to mercy killing. There are infinite grades of killing. The only thing that is unique about murder cases is that someone dies.
Another circumstance which should be looked at in this context is killing by children, which is a particularly highly emotive issue. Let me give two instances. The first was the Phillip Lawrence murder by a 14 year-old, which had a peculiar horror to it. I declare an interest as a defence counsel for a co-accused in that case. The fact that a child was involved in that killing gave it an emotive charge which has perhaps resulted in some useful legislation that may come before this House next week. Nevertheless, it is a subject which causes high emotion among the public.
The second instance was the Jamie Bulger case. There, the Home Secretary fixed a tariff which the Court of Appeal found to be wrong and his methods to be wrong in a number of important respects. It is illustrative of the points that need to be made. First, the Home Secretary erroneously applied the same principles to tariff setting as in adult mandatory life sentences. That was one finding of the Court of Appeal. Then, he failed to appreciate that with young children one has to
be more merciful, to consider rehabilitation and have in mind that children will change much more between the ages of, say, 10 years and 15 years than adults will change over the same period. And not only had the Home Secretary applied an adult approach to his decision in fixing a tariff in that case, but he took into account petitions that had been organised by a tabloid newspaper. The Committee has to think for only a moment of what public outcry there would be if a judge were presented with 50,000 names on a petition prior to sentencing in court--names collected by a tabloid newspaper. Everybody would regard that as a gross interference with the processes of justice. The Home Secretary having made those mistakes, it is right to remember that there was no possibility of the counsel appearing for the two defendants--
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