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Lord Ackner: This amendment is a modest and very limited one. It leaves intact the bulk of the provision which deals with automatic life sentences. It only extracts from it this small triggering series of offences.

In the White Paper issued by the previous government in 1990 entitled Crime, Justice and Protecting the Public, whose proposals, principles, and policies were embodied in the Criminal Justice Act 1991, the following statement is to be found:

I know that it is water under the bridge and now part of our law, but this is the part of the White Paper statement that I wish to stress:

    "This would make it more difficult to sentence justly in exceptional cases. It could also result in more acquittals by juries, with more guilty men and women going free unjustly as a result".

Since the Home Secretary said in another place on 30th July, at col. 341 of the Official Report of the other place,

    "My overriding priority is to secure the safety of the public",

one should consider the validity of the statement,

    "It could also result in more acquittals by juries, with more guilty men and women going free unjustly as a result".

The statement is valid. I give five instances where what had happened could have that consequence.

First, there will be occasions when, if the jury are aware--as they could well be--that the defendant faces a mandatory life sentence if convicted, they will for that reason not convict. Where you are dealing with a relatively minor triggering offence, that must be a risk. Secondly, there will be refusals by defendants to enter, as they should and would have done, a plea of guilty. That will add enormously to the congestion of trial lists. It would be a source of great distress to victims who will be required to give evidence, often in sexual cases, which would of course cause them greater tension and unpleasantness. Also, with the heavy onus of proof, the guilty person will on occasions unjustly go free.

Thirdly, it is not difficult to imagine cases where witnesses, particularly those in close relationship with the defendant and knowing the consequences of a conviction, will either refuse to give evidence or will prove unreliable. Fourthly, there is the danger, referred to by both judges and politicians in the course of debates on the previous legislation, of the victim being actually killed by the defendant in order to avoid the risk of detection and subsequent life imprisonment.

Fifthly, in order to be sure of obtaining conviction, there will be cases in which the prosecution will find itself obliged to accept an unrealistic plea bargain. This

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is well known to be the case in America. Thus the discretion in sentencing will largely be transferred from the judiciary, where it should be, to the prosecution.

The previous government hid behind the potential injustice which the automatic life sentence would perpetrate by saying, "Ah well, there is a discretion with the judiciary. When the judge imposes a sentence of life he must say what the period for punishment and deterrence is." With the accent upon openness in sentencing, there will be a positive obligation to do so.

Let us take the case which the noble Lord, Lord Windlesham, mentioned of the wounding attracting only a sentence of six months. This is how it goes in practice: "Mr. Brown, you have been found guilty of two offences--" and they will be referred to--"and I am obliged by Parliament, as a result of that, to sentence you to life imprisonment. I am also obliged by Parliament to explain to you what in reality that means. In reality it means this: I have to decide what is the tariff, the period which you should serve by way of punishment and deterrence. I do so decide, having regard to the mitigation which has been outlined at some length by your counsel. I decide that the tariff should be six months. So although I have imposed a sentence upon you for life, it will be, so far as punishment and deterrence are concerned, six months. Of course, at the end of the tariff period your case will have to be considered by the Parole Board. But you need not be too anxious about that. I have had the clearest of evidence that you are not in any way a danger to society and it is only on that basis that the Parole Board would prolong your incarceration. Therefore, with considerable confidence, you can expect to be released from your life sentence in fact in probably less than six months, having regard to the parole or other provisions which may exist at the time."

That situation was castigated, very rightly, by the noble Lord, Lord Williams of Mostyn, on the Second Reading of the Crime (Sentences) Bill. He said:

    "An unjust sentence is also one which allows and recognises no difference in cases and therefore sentences between one crime, one criminal, and another. Putting a tick in a box is no way to sentence in crime. Life is not that simple, and neither is crime".

He went on to say:

    "I am going to take a citation from one noble and learned Lord present this evening who is the object of our affection and regard".--[Official Report, 27/1/97: col.1061.]

He continued quickly to say, in case there should be any mistake, that he referred to the Lord Chief Justice Lord Taylor of Gosforth. The noble Lord, Lord Williams, quoted Lord Taylor as saying, at the same column in Hansard:

    "It cannot be right for sentence to be passed without regard to the gravity, frequency, consequence or other circumstances of the offending".

The coup de grace comes in the following few lines at column 1063, when the noble Lord, Lord Williams of Mostyn, said:

    "The sentencing regime for which we contend should, as many noble Lords have said, be open and transparent; but it is nonsensical to invite a High Court judge to say, 'I am sentencing you to life imprisonment. By the way, you can expect to serve 18 months'.

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    That is a perversion of the system. It will bring the whole system into disrepute. If it brings it into disrepute on that basis, it will have brought it rightly into disrepute on that basis".

I should be interested to hear what the noble Lord says. It may confirm the rumour which I hear exists on the Wales and Chester circuit that the noble Lord's bardic title is now Di Chotomy.

6.30 p.m.

Lord Thomas of Gresford: If I am brief, it is because I have the good fortune or the misfortune to follow the noble and learned Lord, Lord Ackner, who has the habit of making every single point that one could possibly make on the matter. Perhaps I may express support for the amendment which was moved with such thought and imagination by the noble Lord, Lord Windlesham. I also support his expression that the legislation was a terrible mistake. We on these Benches contended that that was the situation then and we still contend it today.

I wish to raise three matters. First, experience shows that where there is an indictment, where Section 18 is charged, the first thing that happens--provided identity is not an issue--is that discussions take place between counsel. As a rule of thumb, as a prosecutor, one would maintain a Section 18 charge if a weapon had been used, if it was a knife, a bar or something of that serious nature. Very rarely would one maintain, as a prosecutor, a Section 18 charge if it were a question of fists or even kicking. That is the first stage.

The second stage that one has to consider is this. If in the future it becomes known to a jury that life imprisonment is to be the effect of a guilty verdict when a person is charged with a Section 18 offence, it is highly unlikely, save in the most exceptional circumstances, that a jury will convict on Section 18 at all. That means that the prosecutor's temptation to reduce the charge to Section 20 will be that much greater. It seems to me that in practice Section 18 trials will become rare, Section 20 pleas will be accepted and people who are guilty of more serious conduct, which today would merit a Section 18 conviction, will get away with it.

Finally, may I underline the views that were put forward by the noble and learned Lord, Lord Ackner, about the sentencing process. He has said it all. For a judge to tell a defendant in his sentencing remarks that "I am sentencing you to life imprisonment and that means six months" makes a nonsense of the system. As we said when this legislation went through, it undermines public confidence in the criminal justice system when nonsenses like that can occur. I support the amendment.

Baroness David: My name is attached to this amendment, and I support it really strongly. The case has been put so eloquently by the noble Lord, Lord Windlesham, but there was one point I was going to make about the tariff argument, which was made by the noble and learned Lord, Lord Ackner. It would seem very strange if my noble friend Lord Williams of Mostyn, the present Home Secretary, Jack Straw, and Alun Michael, now a Minister of State in the Home

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Office, who all spoke in favour of this amendment only a year ago, had now changed their minds. I should be most interested to hear their arguments. I do hope that the Home Office has not had this terrible influence within less than a year to make them change their minds. I have sometimes been a bit suspicious about some of my noble friends who seem to be rather more under the influence of the Home Office than I would have hoped, but in this case I very much hope that they will be able to accept the noble Lord's amendment; or, at any rate, the serious suggestion that he made at the end of his speech.

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