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Lord Clinton-Davis: I was much moved by the speeches of the noble and learned Lords who spoke to the amendment. They made a very powerful case. I do not think that I have considered carefully the consequences of the provision. The noble and learned Lord, Lord Lloyd, said that Chapter 7 would be abrogated, as I understand it. I had not realised—perhaps it is my fault—that that would be the case.

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We are considering a vital amendment at 20 minutes to eight. The whole Committee should consider carefully what has been said. I therefore ask the noble and learned Lords if they would be prepared at this late stage to come back to the issue on Report. I ask that because they have raised a most important issue. I do not know how many people have spoken tonight—maybe three or four—but I am not sure that the issues on which they have embarked have been carefully considered. We need to do that, because what has been said is of immense importance to the credibility of this place.

I therefore ask the noble and learned Lords whether they are prepared to do that, because we should not go into the Lobby lightly about this issue. What has been said today should be considered by my noble and learned friends very carefully, but I am sure that the consequences are of enormous importance. For that reason, I beg the noble and learned Lords to say today that they are prepared to return to the matter on Report.

Lord Renton: I am sure that the noble Lord who has just spoken is quite right in saying that this is a very important matter and that the final decision should be taken by your Lordships not tonight, but on Report. I should confess that I voted and spoke against the 1965 Act. That may be because I had already done what very few living people have done: I prosecuted and defended in a number of murder cases as long ago as 1938 and 1939, because I was the so-called circuit junior of the south-eastern circuit. Also, during my four and a half years as a Home Office Minister, where the late Lord Butler of Saffron Walden was the Home Secretary throughout, the death penalty was still in existence. He had to deal with those matters on his own. He bravely never tried to pass the buck to any of us or to any of his civil servants. He took the responsibility himself of deciding whether the death penalty should be imposed.

Those of us who were against the abolition of the death penalty were worried because we felt it almost certain that the number of murders would increase, and I am sorry to say that they have increased. Although they fluctuate a bit, they are now of a numerical character that never existed when there was a death penalty. However we must take things as we find them and not as they are. There is no question of the death penalty being restored. As has been so lucidly articulated by the noble and learned Lord, Lord Lloyd of Berwick, supported by the noble and learned Lord, Lord Ackner, the question is whether the Home Secretary should have the discretion to decide the lengths of the time to be spent in prison.

I must confess that I have, I hope, learnt to live with the times, in spite of the views which I used to hold and which I have already described. There is a lot to be said for what the noble and learned Lord has described. I will be interested to hear what the noble Baroness, Lady Scotland of Asthal, has to say about that, but I am sure that both Houses of Parliament—and the Bill provides the opportunity—should now apply their minds to whether the Home Office should have

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discretion, as the noble Lord, Lord Thomas of Gresford, also suggested, or whether the rather rigid results should be prolonged.

That is a very important matter. I hope that we do not decide on it tonight. I hope that it will come up again on Report as the noble Lord has suggested.

Lord Borrie: It is appropriate that in 2003, nearly 40 years after the 1965 Act abolished capital punishment, the matter of a mandatory life sentence should be questioned. We must all be grateful to the noble and learned Lords for introducing their amendment. They have both made powerful and eloquent speeches. The most powerful part of the speech of the noble and learned Lord, Lord Lloyd, was his indicating how false, how dishonest, how unreal and how unhelpful to the public is the mandatory life sentence, which in so many circumstances does not mean what it says and is not intended by the judge to mean what he has to say. That is an unreality with which we have lived over all these years, for reasons which we can partially understand from the history that the noble and learned Lord, Lord Ackner, has described. The reasons are political in part, such as the need to reassure the public, many of whom were not happy about the abolition of capital punishment. Surely, therefore, it is timely.

I support my noble friend Lord Clinton-Davis in asking that the proponents of the amendment do not push it tonight. If it were carried, there would be some unfortunate outcomes, including our then being unable to discuss the controversial detail, which deserves to be discussed, of the principles set out in Schedule 17 of what different types of murder justify different types of minimum starting points for sentencing and whether someone other than the judge—namely, Parliament—should become involved with detail of this sort. That is worthy of discussion, these many years on since 1965, as well as the points that have been so usefully and helpfully raised by the noble and learned Lords.

7.45 p.m.

Baroness Scotland of Asthal: I add my voice to those who commend both the noble and learned Lords, Lord Lloyd and Lord Ackner, on their erudite presentation of the matter, but I hope that they will forgive me for saying that in the comments which they made with such passion they have been reciting a view that has been recited repeatedly since 1965. We therefore have a dividing line on which way the argument falls.

If I repeat some of the issues that we have raised in the past, I should make it clear that I do so because they do not lose their poignancy or their importance. In discussing the issue, it is important for all of us to bear in mind the victims who are subject to those offences and their families. It is true—and a number of noble Lords will have heard it themselves—that for those families who have lost a loved one, life really does mean life, because the people whom they love will never return.

Perhaps I may with some temerity trespass on those issues which are perceived to be mercy killings when a member of a family makes a decision, perhaps with the

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victim, to terminate the life of that loved one and to put him "out of his misery". Members of the Committee will know that even such killings do not necessarily meet with universal approval within the family of the victim. There can be great pain, great resentment and great anger. It would be to fail to recognise the delicacy of these situations if we did not put the issue against that back-cloth.

Members of the Committee will also know that when talking to the families of such victims there is a feeling bordering on rage as regards the failure to recognise that the life which has been taken away should be mirrored by a life sentence for the perpetrator, albeit that there is an understanding that the whole-life tariff may not necessarily be served in custody but in part on licence in the community. I was pleased to note in the elegant remarks of the noble and learned Lords, Lord Lloyd and Lord Ackner, a recognition that, historically at least, murder has occupied a special place in our criminal law. I understand what the noble Lord, Lord Thomas of Gresford, says: that many would have wished that not to be the case.

The special status of the offence arises not only from the tragedy of loss of life, but also from the murderer's intention that the victim should die, or at least should suffer serious harm. Those characteristics of the offence obtain whatever the circumstances in which it occurs. The sentence of mandatory life imprisonment reflects this unique nature of the offence and the fact that the public rightly regard it as a particularly abhorrent crime. It is a consolation to relatives in such cases that society marks its disapproval of the crime of intentionally depriving another of his life by imposing a life sentence.

Since 1965, Parliament has on numerous occasions discussed these issues and had an opportunity to decide whether to abolish the mandatory life sentence for murder. There has not been any occasion when the majority of both Houses has been in favour of doing so.

There is a clear distinction between the mandatory life sentence for murder by adults and discretionary life sentences. The former is characterised as a mandatory sentence automatically imposed by law as a punishment reflecting the unique gravity of the offence. The discretionary life sentences, on the other hand, are justified primarily by considerations of the offender's character, mental state or age, and his resulting dangerousness.

This distinction between the mandatory and discretionary sentences has been recognised and confirmed in a number of human rights cases. Most recently, appeals in the case of Lichniak & Pyrah found that the mandatory life sentence was compatible with the convention rights. The court also noted in its judgment that,

    "section 1(1) of the Murder (Abolition of the Death Penalty) Act 1965 represents the settled will of Parliament",


    "it may be accepted that the mandatory life penalty for murder has a denunciatory value, expressing society's view of a crime which has long been regarded with peculiar abhorrence".

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If I may respectfully say so, that Judicial Committee of your Lordships' House had a particularly strong court. Sitting in the House, determining this matter, were the noble and learned Lords, Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hutton, Lord Hobhouse of Woodborough, Lord Scott of Foscote and Lord Rodger of Earlsferry. Members of the Committee will know that that was a strong court indeed. They spoke and what they said chimed very much with what the country seems to desire.

As your Lordships will be aware, offenders are not lightly prosecuted for murder. There are a number of partial defences to murder—such as diminished responsibility or provocation—which result in commuting the charge to one of manslaughter. This ensures that those who are convicted of murder will have committed a uniquely serious crime. This ensures, too, that those who are convicted of murder will have committed this crime in circumstances where the court feels it was justified to so mark it. The Law Commission is currently examining the operation of partial defences to murder—taking up the point made by the noble Lord, Lord Thomas of Gresford—provocation and diminished responsibility, including the proposed introduction of a partial defence of self-defence where an excessive amount of force was used. The intention is to complete the review early next year. I therefore understand what the noble and learned Lord, Lord Ackner, said about those issues.

I agree, too, that there is a great variety in the nature and facts which give rise to murder. The framework which we have set in place, which we will discuss later, enables a court to make that distinction when differentiating between those who may fall into the category such as the noble and learned Lord, Lord Lloyd, mentioned in terms of mercy killings, and those at the other end, who the noble and learned Lord, Lord Ackner, acknowledged may be subject to a whole-life tariff. That distinction is there to be seen.

The death penalty for murder was abolished on faith that the criminal justice system would continue to treat the offence with the utmost gravity. That was clear. We believe that loss of the mandatory life sentence for murder would undermine public confidence in the criminal justice system's ability to deal appropriately with these most serious crimes. This Government have sought to lead. But it is only right to say that in leading we have also sought to listen: to listen to what victims and witnesses say; to listen to what perpetrators say; and then to craft something which will meet the needs of justice.

I hope that Members of the Committee will understand why I feel unable to agree to this amendment. It is not because it would expunge Schedule 17. The truth is that members of the public just would not understand. They would not understand because the fact that the life sentence exists is at least an acknowledgement that a life was removed. It is not dishonest because, as noble Lords will know,

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even if people are released after a specific time, they remain on licence. We have the opportunity to differentiate between the different categories.

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