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Lord Mackay of Drumadoon: Before the noble and learned Lord sits down, I point out that my understanding of the correct construction of Section 2 of the 1993 Act does not conform to that explained to the Committee by the noble and learned Lord. It is a complicated matter about which I shall be happy to write to the noble and learned Lord in due course.
However, my understanding is that to comply with the requirements of the European Convention on Human Rights, the Government have had to set up a tribunal, chaired by a judicial member of the Parole Board, to which all discretionary life sentences have to be referred once the determinate part has been served. It is not at the discretion of the Parole Board or the discretion of the Secretary of State when these individual cases come before the judicial tribunal. I am happy to perceive a nod on the part of the noble and learned Lord, Lord Hope of Craighead, which I hope is one which supports my understanding of the law, which I accept is a somewhat complicated area.
Lord Hope of Craighead: It might assist the noble and learned Lord if I say that the whole thrust of that section was to judicialise the process in the light of the decision to which he referred. The Parole Board has among its members judicial members who fulfil that very function. As I understand Section 2 of that Act, and indeed the amendment to the law which is proposed, the Secretary of State has no function; each step in the whole process of the administration of the life sentence is administered either by a decision by a judge or taken in a manner which is properly described as a judicial manner.
Lord Mackay of Drumadoon: Before the noble and learned Lord, Lord Hope, sits down, is he happy to confirm my understanding of the law that once the determinate period has been served, the prisoner has the right to have his case brought before this tribunal, even though the tribunal has a discretion under Section 2(5)(b) of the Act not to be satisfied that the time has come to release the offender.
Lord Hope of Craighead: That is precisely my understanding. The whole point of the determinate part of the sentence is to fix a period which, as it were, freezes the position; but once that period has been served, there is a right to have the matter considered judicially by the Parole Board.
Lord McCluskey: I shall be happy to receive the letter that the noble and learned Lord, the Lord Advocate has promised me. No doubt that is the law
but it does not spring off the page in Section 2 of the 1993 Act. My purpose is not to divide the Committee on a matter of this kind. In fact, I indicate that it is not my intention to divide the Committee at all. In the 12 years since I became a judge, I have never voted in this House in Committee, and I do not intend to do so tonight. In the circumstances, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
[Amendments Nos. 9 and 10 not moved.]
Lord McCluskey moved Amendment No. 11
The noble and learned Lord said: This amendment deals with an entirely different matter. It is a matter upon which I hope the Committee will have the benefit of the advice of my noble and learned friend Lord Hope of Craighead. Members of the Committee will see from the wording of the amendment that there is reference to a temporary Lord Commissioner of Justiciary in Scotland. Since 1990 a number of people have been appointed as temporary judges of the Court of Session, or temporary Lords Commissioners of Justiciary doing criminal work. Undoubtedly they have been of considerable benefit to the administration of justice in Scotland.
Lord Mackay of Drumadoon: I am sorry to interrupt the noble and learned Lord. The confusion which has arisen with these groupings has been, I am sure, much contributed to by my own utterances. But I think, in fact, he is now speaking to Amendment No. 11, not Amendment No. 10 which was the amendment that was called.
Lord McCluskey: Amendment No. 10 was not moved. I do not think the Committee has changed its composition so I will not repeat what I have said. The availability of these temporary judges to sit in criminal trials has been a great boon to the ordinary administration of justice because it gives the administration a great deal of flexibility. However, they were introduced during the time when my noble and learned friend Lord Hope of Craighead was the Lord Justice General. I do not want to get this wrong, but I think a decision was taken that these judges should not preside in murder trials. I am not sure whether that applied to any other trials but I believe it applied to murder trials. The thinking behind that included the notion that it would not be entirely satisfactory that a temporary judge should impose a sentence of life imprisonment.
Under Section 205A, as it will be, of the 1995 Act, a life sentence will be mandatory. "Exceptional circumstances" is a very difficult concept, as we shall soon discover, and, of course, the temporary judges are, on the whole, less experienced than the judges who are
I know that the Government consulted the present Lord Justice General. He was good enough to write to me yesterday, sending me a copy of a letter which the Lord Advocate undoubtedly has. He indicated that he had consulted with the current Lord Justice Clerk and he came to the view that this was not an amendment which would have their support. He indicated that it would be administratively inconvenient to organise sittings if temporary judges could not be used for this kind of case. He also indicated that, although there would be uncertainty, at least to begin with, as to the meaning of "exceptional" in the phrase "exceptional circumstances", nonetheless, if the judge applied the wrong approach this could be corrected on appeal. In these circumstances, and because of another matter with which I might deal later on, he thought that this was not an amendment that he could support. However, I should be interested, before I decide what to do, to hear the views of others who have experience of this matter. I beg to move.
Lord Macaulay of Bragar: The question of temporary judges is one which has rather confused me since it was introduced--no doubt the fault is mine. But as I recollect the legislation which introduced the post of a temporary judge, he was given the full powers of a senator of the College of Justice. Anecdotally, I have heard of at least one occasion when the accused, counsel and witnesses were all in the High Court, but because it was either a murder or a rape trial (I cannot remember which) and because only a temporary judge was available, the trial did not proceed. One can imagine the consequences in relation to that.
Could the noble and learned Lord the Lord Advocate explain, even as a matter of information, why this restriction on presiding over trials is placed upon temporary judges. It seems inconsistent if we are going to have them anyway and they can try attempted murder in the sheriff court; and no doubt they can try attempted rape. But just because the classification of the crime is changed, the judge is not fit, as I understand it, to preside over the full-blown charge of murder or rape. It may very well be that it is costing the country quite a lot of money and inconvenience. I do not offer criticism in any way, except that the noble and learned Lord, Lord McCluskey, has said that of course temporary judges are useful in freeing full-time judges; but if what has been said is correct, they seem to be treated as second-class judicial persons. It must be very embarrassing for them, to say the least, to be in that position. If the correct people are being appointed to the post under the terms of the legislation, with the full
Lord Hope of Craighead: I wonder whether I may introduce some background information which may assist the noble and learned Lord. The 1990 Act imposed a number of very difficult decisions on me in my administrative capacity as Lord President and Lord Justice General. One of the difficulties that I faced was in giving effect to the measure to which the noble Lord referred; namely, the introduction of temporary Lords Commissioners of Judiciary. It is perfectly true that under the statute they were given all the powers that are given to all Lords Commissioners of Judiciary. But at the same time, there was a question of public confidence and, indeed, a question for the Bench as a whole over the extent to which they felt happy with the measure and were able to give it their full support.
It was in that light, after consulting the then Lord Justice Clerk, that I took the decision that I should give a direction administratively to the principal clerk and his deputies that the temporary judges should not be used in murder trials or rape trials without consulting myself as Lord Justice General. The purpose was to avoid having them sit as judges in those very sensitive cases which in Scotland we describe as "the subject of pleas of the Crown". I also included in the direction that they should not be used in cases where the trials were of unusual complexity. That was designed to deal with the problem of confidence in cases where perhaps a particularly complex trial might be thought to be better handled in the High Court by one of the permanent judges of that court.
Of course, there is a matter of practice and convenience. I am not aware of a case in which a trial had to be cancelled because a temporary judge had been assigned to it. However, I was consulted on one occasion when somebody had pleaded guilty to rape and the only judge available to take the plea without it being adjourned to another court was a temporary judge. I gave my consent, in accordance with the practice note, for that temporary judge to deal with the matter. He imposed a sentence which I do not believe the Lord Advocate thought proper to criticise after the event.
Against that background, let me say that I have not seen the letter from the Lord Justice General; nor, quite properly, did he feel it necessary to speak to me about what he said. But I am not in the least surprised by the words read out by the noble and learned Lord, Lord McCluskey.
The Committee will appreciate that there is here a point of principle and a point of practice. So far as concerns the principle, I have no doubt that the Lord Justice General would wish to adhere broadly to the policy devised some years ago. But to lay it down as a statutory requirement that temporary judges should not sit in such cases would create the risk of administrative difficulty. The solution I adopted was one which I thought sufficiently flexible without demeaning the temporary judges who provide a very good service to the court. For myself, I should be happier to leave the
Page 2, line 14, at end insert--
("( ) Notwithstanding subsection (2) above, it shall not be competent for a temporary Lord Commissioner of Justiciary in Scotland to impose a sentence under this section or to preside at a trial of a person on indictment in the High Court in respect of a qualifying offence to which subsection (1) applies.").
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