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Lord Mayhew of Twysden: My Lords, I am most grateful to my noble friend for giving way, but I detected a certain lack of assurance in what he has just been saying that what he was seeking was in fact the case--an assurance from me, as the previous Secretary of State, that there was no political component or influence in the decision that I took in the first instance. I seek to take no refuge in the fact that, as my noble friend said, I had a difficult time. I had not spent nine years as a Law Officer in Northern Ireland seeking to uphold the rule of law to abandon that when I took office as Secretary of State. I give my noble friend now the assurance about which I hope that he was not really in any doubt.

Lord Burnham: My Lords, of course I accept what my noble and learned friend has said. He was Secretary of State in another place, but I had an assurance from my noble friend Lady Denton in almost exactly the same terms as he has just given. I accepted that as being the same as having the assurance from the Secretary of State himself.

My final point is to ask that when Fisher and Wright are let out they will be permitted to continue to serve in the Scots Guards, should they so wish. It would be no surprise if they are fed up with the treatment that they have received when trying to maintain law and order. However, I hope that, like Corporal Clegg, they will feel that they wish to continue to serve. I hope that they will remember Nemo me impune lacessit--touch me not with impunity.

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8.54 p.m.

The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Dubs): My Lords, perhaps I may first join with all those noble Lords who have complimented the noble Lord, Lord Campbell of Alloway, for introducing this very important debate. At the outset, I should like also to pay a tribute to the Army and to the many young soldiers who have served in Northern Ireland with enormous courage in extremely difficult and dangerous circumstances.

I am aware of the considerable interest in this House in these particular Northern Ireland life sentence cases and I understand the concern that these cases should be dealt with fairly and consistently. I am therefore particularly grateful for this opportunity to advise the House on where these cases currently stand following the most recent judicial review judgment, delivered on 22nd May.

The background to these cases is well known and has been explained by a number of your Lordships. The two guardsmen were jointly convicted of the murder of an unarmed civilian, Peter Paul McBride, who was killed during an incident which occurred while they were on patrol in Belfast.

The courts, both at first instance and upon appeal, found that, on the object facts of the case, the guardsmen had no lawful justification for firing at the deceased and that the guardsmen were guilty of murder. Leave to appeal to the House of Lords was refused on 8th March 1996.

Having been convicted and imprisoned in Northern Ireland, the guardsmen's cases fell to be considered under Northern Ireland life sentence review arrangements.

In April 1997, following a judicial review of the cases, the former Secretary of State for Northern Ireland, now the noble and learned Lord, Lord Mayhew, decided that the cases should be considered by the Life Sentence Review Board at the five-year point of sentence--that is to say, in October 1997.

The cases were duly considered by the review board and its confidential advice was subsequently passed to and considered by my right honourable friend the Secretary of State for Northern Ireland. She decided that the cases of the guardsmen should be referred back to the Life Sentence Review Board in October 1998--that is to say, at the six-year point of sentence.

It was this decision which was the subject of the recent judicial review and the judgment delivered on 22nd May. In it, Mr. Justice Coghlin did not quash the Secretary of State's decision. However, he granted a declaration that there had been a failure to provide proper and adequate reasons for the decision to distinguish the applicants' cases from that of Private Thain and remitted their cases to the Secretary of State for further consideration.

The Secretary of State complied with the requirements of that judgment last week. On 17th June both guardsmen were provided in writing with the Secretary of State's detailed reasoning.

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The reasons included the overall involvement of the respective soldiers in the two individual incidents; their knowledge of the whereabouts of the rest of their respective patrols during the pursuit; the fact that the guardsmen were acting in concert; and the passage of time since Thain's case had been considered and the knowledge of more recent, relevant cases.

The noble Lord, Lord Campbell of Alloway, and many other noble Lords raised concerns about the safety of the convictions. As the noble Lord has informed the House, he recently forwarded me a number of sworn affidavits which are purported to contain fresh evidence about the cases. He has also asked whether, given concerns about the convictions, the prisoners could be released by the Secretary of State. I am grateful to the noble Lord for the helpful way in which he has advised me of his general approach to this evening's debate and for sending me copies of the affidavits. I appreciate his helpfulness.

I should explain that my right honourable friend the Secretary of State previously had a statutory power to refer cases back to the Court of Appeal when it appeared that there had been a miscarriage of justice. However, the Secretary of State's statutory power lapsed when the new independent Criminal Cases Review Commission began its work on 31st March 1997. As a consequence, questions about the safety of any conviction in Northern Ireland are no longer matters properly for the Secretary of State. If the noble Lord, Lord Campbell of Alloway, wishes, I would be happy to forward his papers to the Criminal Cases Review Commission.

It has been put to me that, notwithstanding the fact that the Secretary of State no longer has a role in referring cases back to the Court of Appeal, she retains responsibility for their release from imprisonment. She could therefore use this power to release the prisoners pending consideration of the cases by the Criminal Cases Review Commission. I believe that that is the thrust of many arguments advanced by noble Lords this evening. In the alternative, it has been suggested that some other mechanism for release can be used such as the Royal Prerogative of Mercy, to use its full title. I understand that if the Criminal Cases Review Commission refers cases back to the Court of Appeal it would be open to the prisoner to apply to the court for bail.

The Royal Prerogative of Mercy is properly available to be used in truly exceptional circumstances where other mechanisms are not available or would be unduly delayed. As to the Secretary of State's general power to release life sentence prisoners, this is not unfettered. She is required to consult the Lord Chief Justice and the trial judge, if available. Moreover, in exercising her powers she is required to act on a rational basis; she must not be influenced by extraneous or immaterial considerations and must have regard to material factors only.

In the consideration of any life sentence case the proper starting point must be that the prisoner has been properly convicted of murder or some other serious offence. It is not the role of the Secretary of State to attempt to second-guess the Northern Ireland courts, and it would be entirely improper for her to replace their judgments about guilt or

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innocence with her own. Furthermore, in the consideration of life sentence cases she must pay full regard to the facts as found by the courts and available in their judgments.

Noble Lords have asked when the guardsmen can expect release from life imprisonment. Given the nature of a life sentence within the Northern Ireland jurisdiction, I cannot answer that question. In Northern Ireland, unlike England and Wales, there is no tariff system and therefore no specific penal element formulated at the outset of an indeterminate sentence. There is in consequence no minimum period that a life sentence prisoner is required to serve. Instead, all cases are considered in the round with the various elements of the sentence; that is to say, retribution and deterrence, risk and the public interest being relevant in varying degrees throughout sentence. In Northern Ireland the average period served in custody towards a life sentence is 15 years. This is in the context that life sentence prisoners generally serve a period within the range of 10 to 20 years.

Fisher and Wright have now served just over five-and-a-half years in custody and are due to be seen a second time by the Life Sentence Review Board in October when they will have served six years in custody. This contrasts with most other cases that are seen for the first time at the 10-year point of sentence. The exceptional treatment of these cases reflects the fact these are not normal life sentence cases. Mitigating factors include the difficult circumstances in which the guardsmen were operating in the course of their duty and the fact that there was no premeditation. The circumstances which resulted in this particular murder cannot in any way be compared with carefully pre-planned and executed murders carried out by terrorist-type offenders. However, the decision not to release these prisoners reflects the fact that a very serious crime was committed which resulted in the death of an unarmed civilian youth.

A number of noble Lords have compared these cases with those of terrorist prisoners who stand to be released early under mechanisms being proposed in the Northern Ireland (Sentences) Bill to be debated in your Lordships' House shortly. Fisher and Wright, like other prisoners convicted of scheduled offences, will be eligible to apply to have their cases considered by the proposed sentence review body. This does not mean that they are being treated as if they were terrorists. If a declaration is made in their favour, they will be required to serve roughly two-thirds of the period that they would otherwise be required to serve under the existing review arrangements. I have already explained that the guardsmen have had their cases considered under existing arrangements much earlier than most other prisoners.

I should like to deal with a number of specific points raised in this debate. I fear that many of them are not matters for the Government. They concern the way in which the defence was conducted and matters falling within the discretion of the judge. Therefore, they are not matters over which the Government have any influence, nor should they. I deal with one matter raised by the noble Lord, Lord Burnham, the noble Lord, Lord Chalfont, and others. For the sake of absolute clarity, there is no political content whatsoever in the Government's handling of this case. The Government have not been influenced by

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political considerations at all. The position of the Government is based solely on the merits of the two particular cases.

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