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Lord Ackner: My observations were in no way meant to be an adoption of the present position with regard to the death penalty. The noble and learned

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Lord will see that I have tabled an amendment to deal with that: Amendment No. 209, which would be inserted before Clause 254.

Lord Mayhew of Twysden: I gather that that is correct. This Chamber has expressed its view about the mandatory sentence for murder more than once and has been ignored by successive governments.

Baroness Stern: I rise to support the amendment, to speak briefly and mainly to ask the Minister for help to clear up what is for me a large area of confusion. I should be grateful if she could explain exactly what the Government want to achieve by the provisions in this chapter. During our discussion in Committee, she has often said—may I say that it has been a pleasure and privilege to listen to her explanations; that has been a splendid learning experience for me for which I am grateful to her—that our aim is rebalancing and modernising. Although we do not yet have the record, I think that this afternoon she said, "We are looking for a system that is fit for purpose". In her reply, can she explain exactly what that means?

The Bill does not start from a blank sheet; in our sentencing policies we are starting from what many commentators would describe as a crisis. We already have an imprisoning rate of 140 per 100,000. To put that in context, the European Union average is 99 and that in many European countries is about 60,70 or 80. This morning, there was an article in the press about money for two new prisons to hold 1,500 people each. We read about a probation service in crisis with a workload that it cannot handle and targets that it cannot meet.

It is difficult to see how the provisions address that crisis. They are not the sort of legislative reform that has taken place in Canada, where sentencing reform embedded in law a principle of using prison as a last resort, with workable machinery to ensure that that was implemented. That has led to a substantial reduction in the use of prison in Canada. I presume or hope that the Bill is not leading us towards the situation in the United States, where judges' discretion has been almost completely removed. In answer to the question posed by the noble Lord, Lord Monson, that is a first-world country with many mandatory minimum sentences and many active groups campaigning against them because of the enormous injustice that they cause to those on whom they are imposed.

So where do the measures sit? What is the vision for sentencing policy in England and Wales as a result? What in the Minister's eyes would be a desirable outcome in effect on the prison population, the workload of the probation service, the number of people who go through a criminal justice system that may well damage their prospects of social integration and on public safety and crime levels generally? I know that that is a big question, but if we had some idea of

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what would be the desirable outcome and what is the vision for sentencing, that would help us to debate the rest of the Bill.

Lord Goodhart: This is the first occasion on which I have taken part in the debate on this very important Bill. I am glad that I have been able to come in at this stage because, in a Bill that contains many dangerous provisions, Part 12 is the most dangerous of all. I am therefore happy to support the amendment moved by the noble Lord, Lord Kingsland. In line with the noble and learned Lord, Lord Mayhew of Twysden, I would go further: I would omit the final words of the provision about its inapplicability to sentences for murder. It is plain that judges should at least have a right to retain the power to recommend the minimum term to be served.

There is a case—I do not say that we are yet in a position to adopt it—for replacing the crimes of murder and manslaughter with the single crime of criminal homicide. I hope that the Law Commission will be invited to look at the issue and to make recommendations. That change would remove a number of problems; for instance, it would no longer be necessary to impose what is at least nominally a life sentence on mercy killers, whom everyone knows will be released in three, four or five years. That would get rid of the problems of diminished responsibility and provocation, for instance, which would no longer be needed as defences to a murder charge but would simply be dealt with at sentencing. That matter is not ripe for action at the moment, although I hope that the Law Commission can be invited to look at it.

I shall return to what is already in the Bill. The Government are trying to confuse two different matters: consistency of sentencing and uniformity of sentencing. Consistency of sentencing—the idea that people who commit similar offences in similar circumstances should receive similar sentences—is highly desirable and plainly right. At a lower level of crime, for instance, in the past, one Bench of magistrates may have dealt with similar motoring offences quite differently to another magistrates' Bench. Such inconsistency can be, and has been, dealt with in recent years by the Court of Appeal Criminal Division. It hears a series of test cases that raise particular problems regarding the appropriate level of sentence in fairly general circumstances. The Court of Appeal can say what it thinks is the range of appropriate sentences for crimes of that kind.

Uniformity of sentence is different; in my view, it is wholly unacceptable. It is the idea that a similar offence should be subject basically to a similar penalty whatever the surrounding circumstances, except perhaps in the most extreme cases. The Government seem to be moving in that direction with the Bill.

I am happy with, and would positively support, the idea of lay input by non-sentencers into the question of consistency of sentencing. As the noble and learned Lord, Lord Ackner, pointed out, we have that already in the Sentencing Advisory Panel. As he asked, what is then the need for a separate Sentencing Guidelines Council, which seems to be taking a step too far? Unlike the

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Sentencing Advisory Panel, the council attempts to restrict the discretion of judges. That is plainly wrong. It is wholly inappropriate to have the two distinct bodies. We should stick with the Sentencing Advisory Panel and not have the Sentencing Guidelines Council.

If we have a council, it should never lay down restrictions on the discretion of judges in individual cases, but only seek to achieve consistency by applying general rules for general cases. In individual cases, if a judge gets it wrong it is not a matter for a minimum sentence but something to be dealt with by specific guidelines. The remedy already exists: the power of the Attorney-General to refer the case to the Criminal Division of the Court of Appeal, which can impose a higher sentence.

I agree entirely with what the noble Lord, Lord Carlisle of Bucklow, said about the danger of minimum sentences, as many other speakers have done. I will not go into the details of Schedule 17, which contains many serious faults. I shall deal simply with the question of minimum sentences. As experience has proved in America—where minimum sentences have had disastrous consequences, as the noble Baroness, Lady Stern, pointed out—we should not go into such sentences.

This part of the Bill contains many dangerous provisions. I hope that the Government will be prepared to accept the spirit behind the amendment.

4.45 p.m.

The Earl of Listowel: I am deeply concerned about the repercussions of the Government's proposal for children who become involved in the criminal justice system. I have listened with increasing anxiety as I hear each speaker voice his or her concerns. Of course we must always bear in mind the impact on victims of the crimes committed by such people. However, I was dismayed that in another place the Government proposed to introduce a minimum life sentence for children who commit murder. If what the noble and learned Lord, Lord Mayhew of Twysden, said about adult murderers is true—as I am sure that it is—it is so much more true of children who commit murder.

I am concerned that the provision is liable to lead to more interference in the judiciary as it deals with children. That would happen in the context of a situation in which children and their families have been neglected so badly in the past as regards the services that we have provided for them. Let us take for example children's homes, where staff can work without any previous professional training or qualification. In continental countries such as Poland staff in children's homes must have two to three years' professional training before they may work with these very disturbed and sometimes violent children who, sadly, may eventually end up in the criminal justice system.

Without a strong independent judiciary, the danger is that the public, who, sadly, are often ill-informed about the context of criminal behaviour, will put pressure on politicians to increase sentences and to

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overload the criminal justice system so that nothing can be done to rehabilitate people who may have committed awful crimes but who are often victims themselves.

Lord Williams of Mostyn used to say of the death penalty that, in certain circumstances, one must put aside the pressure of public opinion and do what one thinks is right. He would always say "Two wrongs do not make a right". I look forward to reassurance from the Minister that this is not a slippery slope towards lessening the independence of the judiciary and an increase of rule by popular misunderstanding of the situation.

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