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Lord Thomas of Gresford: I am grateful for the support of the noble Earl. He has highlighted the problem that exists. Can those in the position of the young nurse to whom he referred have any confidence that they will not be prosecuted and risk a substantial prison sentence? I do not want to refer unduly to the case in Cambridge, but it resulted in a five-year sentence of imprisonment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 54 agreed to.

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Clause 55 [Life sentences: tariffs]:

Lord Williams of Mostyn moved Amendment No. 133:

    Page 37, line 16, leave out from ("shall,") to end of line and insert ("unless it makes an order under").

The noble and learned Lord said: This group of amendments includes Amendments Nos. 133 to 138 inclusive. The purpose of Clause 55 is to bring our law into line with a key conclusion of the European Court of Human Rights in its judgment in the case of Thompson and Venables. As the Committee knows, those were the convictions following the cruel murder of James Bulger in February 1993.

Under Clause 55, in line with the judgment, where a court convicts a person who is under the age of 18 of committing murder it will be for the court to determine the tariff to be served. We achieve that by amending and extending the provision in the Crime (Sentences) Act 1997, which provides for courts to set tariffs in cases which involve discretionary life sentences.

The first three amendments--Amendments Nos. 133, 134 and 135--are to ensure that it is clear for all possible cases that an appeal can lie against the period that the court specifies.

The proposed new Section 82A, which reflects the position under the 1997 Act, leaves scope for a court to conclude, in appropriate circumstances, that life should mean life and, therefore, no determinate tariff should be set. Plainly, those would be very rare cases, but it would be of enormous importance in an individual case. It is vital to ensure that an appeal is possible. Under Section 82A as it standsthere is some doubt about that. Amendments Nos. 133, 134 and 135 therefore recast subsection (4), with the result that the court must give an order whether it is setting a determinate tariff or has concluded that no determinate tariff should be set.

Subsection(5) relates to juveniles and whole life tariffs. Amendments Nos. 136, 137 and 138 relate to that subsection).

Section 82A provides for a sentencing court not to set a determinate tariff if it concludes that the seriousness of the offence means that no such tariff should be set. That follows the scheme of the 1997 Act under a practice direction on tariff setting issued by the Lord Chief Justice some time ago.

It is extremely difficult to envisage circumstances where a court might draw such a conclusion when the offender is under the age of 18. It is just possible, in an extreme case. We do not want to leave a possible gap and therefore subsection (5) ensures that the Parole Board still has the determinative role in the release of such an offender.

There are two aspects of the subsection which need to be addressed. First, when will it come into play? At the moment it is linked to the sentencing court concluding that life should mean life. But it needs to be clear that it does not apply where the Court of Appeal Criminal Division subsequently overturns that conclusion and substitutes a determinate tariff.

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Amendment No. 136 will have that effect by linking Section 82A(5) to cases where a conclusion that life should mean life currently stands.

The second point is the approach to be adopted by the Home Secretary. We have drawn on the policy that applies to those over 18 given whole life tariffs as set out by the then Home Secretary, Michael Howard, on 7th December 1994 and my right honourable friend Mr Straw on 10th November 1997. But there are particular considerations that arise when dealing with juveniles.

Should a court ever consider that life ought to mean life for a juvenile offender, the case should be reviewed by Ministers after 15 years as compared with 25 years in the case of an adult offender. The review would need to consider the needs of retribution and deterrence and take into account any exceptional circumstances, like exceptional progress in custody, bearing carefully in mind the youth of the offender when the offence was committed and the importance, of course, of having proper regard to a child's welfare. It would be open to the Home Secretary in assessing the extent to which the needs of retribution and deterrence had been met, to consult the Lord Chief Justice of the day for his view.

Further reviews would be conducted every five years. The Home Secretary would be open to representations at any point, before or after the initial review, that a review should be held earlier than scheduled, perhaps for example because of exceptional progress in custody, bearing in mind the youth of the offender, or where there were any other exceptional circumstances viewed in the same light.

Once a ministerial review resulted in a determinate tariff being imposed, a direction would be given under Section 82A(5) to enable the Parole Board to determine release under the early release provisions in the Crime (Sentences) Act 1997 after the expiry of the set period. We believe that it needs to be clear that a determinate tariff will not be fixed by the Home Secretary under Section 82A(5) until that is appropriate, and that he will follow a particular policy, which I have sought to outline, for doing so. That is the purpose of Amendments Nos. 137 and 138.

I appreciate that the explanation has been a little lengthy. But there is significant public interest not only in this case, but also in these matters and I felt it appropriate. I beg to move.

9.45 p.m.

Lord Windlesham: There is no need for the Attorney-General to apologise for the length of his remarks. It was their complexity that I found difficult to follow. I should like to put this series of amendments into a wider and, in some sense, more political context.

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These amendments are part of a long-running conflict between the executive branch of government and the judiciary over the period of time to be spent in custody by offenders who have been convicted of very serious offences which have attracted sentences of life imprisonment. Indeterminate sentences of this kind, over the years, have become effectively hybrid because of differing views as to who should be responsible for taking crucial decisions on when a life sentence prisoner should be released on licence, and on what authority. Unless the penalty is fixed by law--and that now applies only to the single offence of murder--the life sentence is at the discretion of the court. The court determines, case by case, the tariff--that is, the period of time--to reflect the gravity of the offence and the culpability of the offender.

The main battleground has been over who should take the final decision to release a prisoner from custody at the expiry of the tariff, or to continue to detain him in prison. One of the alternatives is the Home Secretary. How does he decide? Has he met the offender? No. Has he seen him in court? No. He has seen only the papers. He must decide on paper, and inevitably will take into account the political and public anticipated reaction.

Or should the decision be taken by a discretionary life sentence panel of the Parole Board after interviewing the prisoner? The prisoner is legally represented in the prison where the hearing takes place, there is a judicial chairman of the panel, and reasons are given. It is a quasi-judicial process to decide when a prisoner serving life imprisonment can safely be released, and what the risk and the danger might be.

Bit by bit, the Home Secretary's authority to take these decisions personally has been eroded, now leaving only adults who have been convicted of murder. That in itself is a large and controversial issue. It was the subject of a Select Committee of this House, chaired by Lord Nathan, in the 1980s, of which I was a member, and subsequently of another independent committee, chaired by the noble and learned Lord, Lord Lane, a former Lord Chief Justice, of which I was also a member. So there was a time when I was a great deal more familiar with these issues than I am today.

Clause 55 changes the way in which tariffs will be set in cases of detention during Her Majesty's Pleasure--that is, for young offenders under the age of 18--and also provides for the sentencing court, rather than the executive branch of government, to decide how long the period in custody should be before the case can be referred to the Parole Board.

The change was not volunteered by the Government. Decisive power in this field, as in others, has seldom been handed over willingly, but in order to comply with a decision of the European Court of Human rights in the case of UK v. Thompson and UK v. Venables last year. That case, as others before it, were brought by the well-known and highly regarded civil

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liberties organisation, Justice. Justice has now raised some questions about the need for, and effect of, these amendments. It comments on Clause 5 that:

    "Subsection 4 effectively applies the rules for adult discretionary lifers in the Criminal Justice Act 1991 to discretionary HMPs"--

that is, prisoners serving sentences at Her Majesty's pleasure. It continues:

    "That is that there are some cases that are so serious that tariffs can't be fixed: they become whole life tariff cases. This is inconceivable for an under 18 year old, and would automatically be an appeal point. No judge should be making such a recommendation.

    If that is right--and we cannot think what else it can mean--then subsection 5 is otiose, as there is no room for an administrative tariff. The [government] amendment seems to take us even further off the track".

I believe that my noble and learned friend Lord Mayhew of Twysden may also speak on this aspect, since both he and I have had contact with Justice, and perhaps we may have the opportunity of hearing again from the Lord Chief Justice.

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