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Lord Bingham of Cornhill: My Lords, to impose a life sentence on any defendant in any circumstances is a solemn and serious thing. That is not because most such defendants spend the rest of their lives in prison; it is well known that they do not. Nevertheless, it is solemn and serious because when such a sentence is passed, the defendant potentially forfeits the rest of his life to the state.

In current circumstances, it is the most drastic penalty which society gives itself the power to impose. Unhappily, such sentences are sometimes necessary. I am not now concerned to argue against the mandatory life sentence for murder. I accept without qualification that such sentences are sometimes necessary for the protection of the public in other cases. None of that is controversial. No one this evening on these amendments is arguing against life sentences. As I understand it, these amendments seek merely to ensure that that solemn and serious step should not be taken where it is not in the interests of justice to take it or where it is unjust in all the circumstances to impose such a sentence.

I am not asking that the courts should be above the law. Throughout I have accepted the power of review and the right of the Attorney-General to go to the Court of Appeal and say, "A life sentence should have been imposed in this case and it was not. Please impose it". But I am bound to say to your Lordships that speaking purely for myself, I cannot see any rational ground for opposing these modest amendments.

How can it be contrary to good government or the administration of justice that those draconian sentences should not be imposed mandatorily where it is not in the interests of justice to impose them or where it is contrary to justice to do so? Faced with these amendments, I would expect the noble Baroness, who has been so patient in these debates, to say, "Yes, of course, it goes without saying. How could the Government wish mandatory life sentences to be imposed where it is contrary to the interests of justice?" Instead of that, we find implacable opposition to what is an obvious and very modest addition to the Bill.

Lord Ackner: My Lords, I should like to raise three particular separate matters and ask the noble Baroness for her assistance with regard to them.

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The complaint has been made that in, I think, 1994, there were 217 cases in which there was a second conviction for one of those so-called serious offences. Out of the 217, only 10 were the subject matter of a life sentence. We are given no particulars of those cases but we do know that six of them were referred by the Attorney-General to the courts but he did not seek a life sentence in any of them.

The Attorney-General has a pretty traumatic existence. He is disliked by the press because it is his function to bring proceedings for contempt. He is constantly a target of one kind or another. But I do not see why he should be attacked sub silentio by the Government unless they justify that attack. It follows from the criticisms made in regard to those statistics upon which the Government rely so much that, out of the 207 cases, the Attorney-General should have referred, if not all, certainly a major proportion; otherwise, there is no justification for these provisions at all. As I have understood it, the justification is that the judiciary is not doing enough to protect the public and accordingly it must lose its discretion, right and duty to sentence in this type of case. But it means that if the judges were being unduly lenient, as is alleged, the Attorney-General failed in his statutory obligation to bring to the attention of the Court of Appeal cases of this kind where it was said that he had been unduly lenient.

Clearly, this matter gave the Home Secretary some concern. Correspondence was raised to this effect. He wrote in reply to the Sunday Telegraph on 23rd February--I read only the material part of the letter--

"Mr. Palmer asks why the Attorney General had not exercised his power to refer the other 207 cases to the Court of Appeal. The answer is that the Attorney General can only refer to the Court of Appeal if they are 'unduly lenient'. Long sentences are frequently imposed on offenders convicted of serious violent and sex offences--which cannot therefore be challenged as unduly lenient".

An intelligent first-year law student would have done better than that. The first thing that he would have been told to do would be to refer to the sentencing encyclopaedia and manual. There he would have found two quite recent cases brought by the Attorney-General in which the Court of Appeal (Criminal Division) had upheld his submissions that a long sentence (in one case 12 years) was unduly lenient and imposed a life sentence. Statistics on this subject were referred to in debate before the letter of Sunday 23rd November.

I therefore put to the noble Baroness the question that the Home Secretary so signally failed to answer. If she suggests that out of 207 cases the judges imposed unduly lenient sentences, (a) will she identify them, and (b) will she say why the Attorney-General has apparently failed in his statutory duty?

My second question arises in relation to the imposition of the false label "life imprisonment". It is a false label because the Government do not intend, save in a tiny minority of cases, that a person so sentenced should stay in prison all his life. That is a false label which involves all the paraphernalia of tariffs and parole. For over 20 years there has lain on the shelves of the Home Secretary an immensely detailed report of a committee presided over by Lord Butler dealing with

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the problem of persons who have been convicted and given determinate sentences and then have been released when there is still a danger. He proposed that there should be offences dealt with in that way under a quite different heading. He suggested that they should be reviewable sentences. That involved medical evidence to establish that the offender was a danger and every two years consideration of the person's position. It also meant that if the person was discharged from prison there should be a licence that would last for the remainder of his life, subject always to review.

If there was a serious problem, why was that report never debated? It never was debated in either House. If there was a serious problem, why was not the suggestion in that report looked at? If there was a serious problem, why was it not referred to the Law Commission to see whether an up-to-date approach was appropriate? Why was it not realised that it had considerable advantages over the false label which in the interests of honesty in sentencing the Government insist upon?

Those advantages are at least the following. First, the reviewable sentence was not limited to a second offender. One could start right in, provided it was the appropriate category of offence. Secondly, it was not the restricted list in this case which covers all cases in which the maximum sentence is life. The appendix to that report set out two categories of case: one in which those who were sentenced had a sentence that was capable of being life and those which were not but which had to be a second offence following the life sentence type of case--so much wider. Thirdly, one had to have medical evidence.

There is no requirement for medical evidence in regard to the automatic life sentence proposed by the Government. They look with equanimity upon a judge saying to an individual, "I am obliged by Parliament to impose a sentence of life imprisonment on you. I am also obliged to explain to you precisely what I am doing, so do not be upset by the macabre sound of the words 'life sentence' because they do not mean what they say. In your case I am quite satisfied by the evidence that there is nothing that suggests you are a danger. The facts of the case, involving violence but in circumstances which are very special, oblige me in the exercise of my powers to specify that the element of the life sentence which should be looked upon as punishment and as a deterrent is 18 months. Because I have already indicated that I do not consider that you are in any way a danger, I have alerted the Parole Board, which must be satisfied in 18 months' time that you are no longer a danger so that it can put an entry into its diary and keep you in prison not a moment longer than your medical condition requires".

In Lord Butler's proposal one did not go through that charade. You had your medical evidence and you operated on that. The Minister was kind enough to say in the debate on 13th February when she was replying to an intervention of mine in which I raised the matter of the Butler Report:

"The noble and learned Lord makes an interesting point. I can tell him that many hours were given over to the consideration of that option".--[Official Report, 13/2/97; col.367.]

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I should like to know what was the result of those many hours. First, why was not the Butler Report revealed to Parliament during the debate; and, secondly, why were we not told why the Butler option was not operated instead of the false label still under the heading of honesty in sentencing?

The third area of information for which I should be grateful relates to the 1990 White Paper, because this was not only my plea; it was the plea, to which I referred in terms today, of the former Home Secretary in the debate resulting from a Motion moved by my noble and learned friend Lord Taylor in May last year. In that debate, the noble Lord, Lord Carr, drew specific attention to the 1990 White Paper, and explained that the Government had gone totally in reverse. He said, as I have already quoted:

"I do not believe that in respect of such a vital matter the Government can just go into reverse in this way without explaining more deeply and clearly to us in Parliament and to the public as a whole why six years ago they were wrong--not just a little wrong but fundamentally wrong--and are now fundamentally right".--[Official Report, 23/5/96; col. 1051.]

We have never been told how that volte face came about. We have never been shown any research, and consideration. All we have is essentially the figure of 217 in regard to those serious crimes, unexplained, and clearly an indirect attack upon the Attorney-General.

That is all I propose to say in support of the amendment, save that in so far as the amendment seeks to ensure that the judge can do justice with regard to the offender before him, and in so far as the Government resist that amendment, the Government are clearly, by implication, on occasions obliging the judge to do injustice.

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