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Lord Lucas: My Lords, I shall be very disappointed indeed if we do not have a criminal justice Bill in the next Session. We have had one every Session—if not several—and that is what keeps me alive and interested.

I congratulate the Government on what they have done in dealing with animal terrorism. They have supported Huntingdon Life Sciences Company in every way necessary when all others have deserted it. I

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believe that that is something for which we should all be profoundly thankful to the Government. I agree that the changes made in the Anti-social Behaviour Bill are looking extremely constructive. I am delighted that we are going down that road.

However, turning to this amendment and this subject, I believe that the Government have rather crossed that line already in what is now Clause 117 by making religion the subject of one of these hate-crime clauses. I entirely agree that that should be the case. Religion has caused more hate than possibly any other aggravating cause set down in these two clauses. None the less, people are capable of changing and often do. In the life of Christianity and Islam there have been periods when conversion by the sword has been a popular method of creating new recruits. There is nothing permanent about religion.

At the moment we are in a period of stability, but that does not mean that people who were born Muslim or born Christian stay Muslim or Christian. My former brother-in-law was born a Christian but is now a Muslim. I know of people who were born Muslims and who sustain their religion and I also know Muslims who have become Christians. There is quite a good commerce between religions. I am delighted that religion has been admitted to the cannon of hate crime, but it has opened the door to considering the possibility of hate crime in relation to other aspects of a person's life that are mutable rather than immutable and matters of choice rather than matters that people have thrust on them by circumstances or genetics. Clearly, this is not the time to press the issue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 138 [Savings for powers to mitigate sentences and deal appropriately with mentally disordered offenders]:

Baroness Scotland of Asthal moved Amendment No. 68:

    Page 96, line 28, after "with" insert "such".

The noble Baroness said: My Lords, in moving Amendment No. 68 I shall speak also to a very large group of amendments. Amendments Nos. 68 to 72, 75 to 79, 85 to 87, 111, 112 and 115 to 121 make a number of minor improvements to the sentencing provisions in the Bill. Amendments Nos. 68 to 72, 79, 111, 112 and 115 make a number of minor drafting improvements. Amendments Nos. 75 to 78 make a number of minor corrections to the interpretative definitions for the sentencing provisions. Amendment No. 85 delays the commencement of the Scottish powers of arrest provisions for the wildlife trafficking offences. Those will now be commenced by order at the same time as the equivalent provisions for England and Wales. Amendments Nos. 86 and 87 extend the timescale for the implementation of the mandatory life sentence provisions from two to four weeks after Royal Assent to make them practically implementable. Amendments Nos. 116, 117 and 119 to 121 make minor consequential amendments. Amendment No. 118 makes minor changes to existing provisions in the

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Crime (Sentences) Act 1997 to ensure that an offender serving a detention and training order may be transferred from England and Wales to Scotland. I beg to move.

Baroness Anelay of St Johns: My Lords, I refer briefly to Amendment No. 122 in my name which is grouped with the government amendments. I give notice that I shall move that amendment formally. It is a consequential amendment on Amendment No. 225 which I moved to a Division on Report and which the House approved.

On Question, amendment agreed to.

Clause 179 [Mental health treatment requirement]:

Baroness Scotland of Asthal moved Amendment No. 69:

    Page 118, line 11, leave out "relevant" and insert "community order or suspended sentence".

On Question, amendment agreed to.

Clause 183 [Periodic review of drug rehabilitation requirement]:

Baroness Scotland of Asthal moved Amendment No. 70:

    Page 121, line 44, leave out from "which" to end of line 45 and insert "he could have been dealt with for that offence by the court which made the order if the order had not been made".

On Question, amendment agreed to.

Clause 184 [Alcohol treatment requirement]:

Baroness Scotland of Asthal moved Amendment No. 71:

    Page 122, line 37, leave out "relevant" and insert "community order or suspended sentence".

On Question, amendment agreed to.

Clause 222 [Licence conditions]:

Baroness Scotland of Asthal moved Amendment No. 72:

    Page 142, line 22, leave out "(2)(b)(ii) or".

On Question, amendment agreed to.

4.15 p.m.

Lord Ackner moved Amendment No. 73:

    Before Clause 241, insert the following new clause—

In section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 (c. 71) (abolition of death penalty for murder), for the word "sentenced" there is substituted "liable"."

The noble and learned Lord said: My Lords, the amendment would achieve a simple matter: to make the sentence for murder no longer mandatory life, but at the discretion of the court. The crime of murder contains two features that are not always appreciated. The first relates to intent. The intent is not limited to an intent to kill; it applies to an intent to cause serious bodily harm. Accordingly, if there is a quarrel in a pub and one party to the quarrel breaks his bottle of beer and uses it as a weapon by thrusting it in the face of his companion, who dies as a result, that will be murder.

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The second feature is that there are no categories of murder for which life imprisonment is reserved. The Homicide Act, which was enacted before capital murder was abolished, contained a number of categories in which capital murder was distinguished from murder that attracted life imprisonment. There were so many anomalies that it proved so unworkable that those provisions were withdrawn when the abolition of the death penalty came into force.

The result, as Lord Hailsham pointed out, is that the definition of murder now covers a vast spectrum of cases. I refer to what he said in the case of Regina v. Howe 1987, referred to at page 33 of the report of the Select Committee on Murder and Life Imprisonment, published in 1989, under the chairmanship of Lord Nathan—on which committee I had the privilege to serve. Lord Hailsham stated:

    "Murder, as every practitioner of the law knows, though often described as one of the utmost heinousness, is not in fact necessarily so, but consists in a whole bundle of offences of vastly differing degrees of culpability, ranging from brutal, cynical and repeated offences like the so called Moors murders to the most venial, if objectively immoral, 'mercy killing' of a beloved partner".

The other result, to which my noble and learned friend Lord Lloyd referred in the debate in Committee, is the case of Clegg. I refer to it for a different reason. As noble Lords may remember, Clegg was wholly and properly convicted of murder when he shot at a car that was being driven through a checkpoint in Ireland. There was much outcry about the case and subsequently he obtained an acquittal. Before that was obtained he was allowed out of prison, so that his sentence amounted in fact to no more than about four years.

My next point relates to the number of misapprehensions that have arisen on the subject that we are discussing. First, the noble Lord, Lord Clinton-Davis, in Committee particularly asked my noble and learned friend Lord Lloyd not to press the matter to a Division because, he said,

    "the consequences are of enormous importance".—[Official Report, 14/10/03; col. 834.]

I suggest that that is not the case. The consequences are of significance, but there is no enormous importance.

Following the publication of the Nathan committee's report on murder and life imprisonment, a similar amendment to that which is before your Lordships was debated on the Criminal Justice Bill 1991. It succeeded by a majority of nearly 100 voters; the number was 177 in favour of the amendment and 79 against.

Secondly, it is quite wrong to say that Schedule 19—I think that it is still Schedule 19—would fall to the ground if this amendment was passed. Schedule 19 is self-contained and it would continue in existence if the sentence for murder became discretionary. The Home Secretary, by species of ministerial decree, has laid down the categories of murder and the kind of minimum sentences which they should attract.

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Thirdly, it is suggested that we are "going soft on crime" if we allow the amendment. Again I refer to the Nathan report on the subject. It stated:

    "The Committee recognise that the courts have, in recent years, been faced with crimes of the most extreme gravity. They believe that the form of life sentence which they recommend would provide the degree of protection which the public rightly demand and would provide a sufficiently severe sentence to deal with the most outrageous crimes. After the introduction of a discretionary sentence for murder, the Committee anticipate that the average length of time served under a life sentence would be considerably longer than it is now. The Committee expect that their proposals will lead to very lengthy penal sanctions being set in the most grave cases. In some cases, this may result in imprisonment for the rest of the prisoner's life".

Fourthly, on the subject of misapprehension, I refer to the observation made by the noble Baroness, Lady Scotland, that if this amendment was passed, it,

    "would undermine public confidence in the criminal justice system".—[Official Report, 14/10/03; col. 837.]

I suggest that that is quite wrong. In Committee, the noble Lord, Lord Borrie, observed:

    "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".—[Official Report, 14/10/03; col. 835.]

Fifthly, in the April 1991 debate that followed the report of the Nathan committee, my noble and learned friend Lord Lane said:

    "No crime, however exceptional, requires the imposition of a sentence which everyone knows will not be implemented".—[Official Report, 18/4/91; col. 1593.]

Sixthly, it is said that the public's reaction to deliberate taking of life is what makes the offence one of the utmost gravity. I refer again to the Nathan committee's report. It made reference to two cases in which life was intentionally taken. It stated:

    "In the case of the Maw sisters, the sentence of three years' imprisonment on two young women who deliberately killed their drunken father was harshly criticised for its severity, and in the case of one of them, reduced on appeal to six months; and the Thompson sisters, who shot their tyrannical father as he lay in bed having an epileptic fit and were given a two years suspended sentence seem to have attracted nothing but public sympathy. The public seem to be well able to recognise powerful mitigation, even in the case of deliberate killing. In the former case the defendants were found to be acting under provocation, in the latter to be under diminished responsibility; but there may well be similar cases where the jury is unable to find these defences to be made out. Moreover, individual judges do in practice, determine how long the life sentence is in reality".

Lastly, I turn to the suggestion that the imposition of the mandatory life sentence carries with it a deterrent effect. Again, I refer to the report of the Nathan committee. It stated that the fact that,

    "the life sentence is mandatory actually reduces any deterrent value a life sentence may have. It dilutes what should be the awe-inspiring nature of the life sentence. Because many murderers receive unnecessary life sentences, the average time served is reduced, giving credence to the common belief that 'life' means nine years. If the life sentence became discretionary, the average time served by lifers would be substantially increased".

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I now come to the coup de grance which arises from the fact that the Home Secretary, as a result of European human rights legislation, is no longer permitted to play any part in deciding how long a murderer can stay in prison. That must affect how one proceeds in future.

In discretionary life cases, the matter is argued out in front of the judge, with counsel producing the mitigation, calling any evidence he thinks appropriate, such as medical evidence, and urging upon the judge what he should do. The judge can there and then say, "The penal aspect of the sentence—the part that is appropriate for punishment and deterrence—is 'x' years", which would mean that once the "x" years expire, it is for the Parole Board to decide whether it is safe to allow him to be released. Alternatively, he may make no comment, save to say that he does not think that it is an appropriate case on which to make any recommendation. That means in substance that the person will go to prison for life.

In murder cases, there can be no alternative but to follow the same procedure. Provision has been made for the Attorney-General to have the right to apply to the Court of Appeal to say that a sentence is excessively lenient. There is no basis now for drawing any distinction. There is no situation in which the Home Secretary can say, "Wait a moment; I may wish to keep the person in prison longer than the judge may have in mind".

We have now reached a position where it is appropriate to make the two wholly comparable so far as concerns sentencing. I beg to move.

4.30 p.m.

Lord Lloyd of Berwick: My Lords, noble Lords may remember that in Committee, which seems a long time ago, my name stood first on the amendment and my noble and learned friend Lord Ackner's stood second. I would not like noble Lords to think that there was any significance in the reversal of the order; my noble and learned friend was simply quicker off the mark in getting to the Public Bill Office.

I do not intend to repeat any of the arguments that I advanced in Committee, as they are all well known, recorded in Hansard and have been fully covered by my noble and learned friend Lord Ackner today. I will content myself simply to say that I do not think that they have been answered, because I do not believe that they can be answered.

I wish to make a point that I did not mention in Committee. The Minister said that one must have regard to the families of murder victims and referred to the rage that they feel when a life taken is not mirrored by a life sentence—I think that I quote her correctly. Of course we must have regard to the families of victims of murder, as with every other crime; but I ask for evidence that they are comforted by the imposition of a life sentence that they know means nothing.

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I am a former member of the Advisory Committee on Victim Support—I was a rather bad member, but I am still in touch with the committee. I am told that the families of victims care not about the meaningless imposition of a life sentence, but how long the defendant will serve in prison and, when he has completed his sentence, the terms on which he will come out. That is what they want to hear, not mere repetition of words that they know do not mean what they appear to mean. I believe that my information is correct, so let us hear no more in this debate about the need to reassure the families of victims by imposing a mandatory life sentence in every case of murder. All that does is to bring the sentencing process into disrepute.

When capital punishment was first curtailed in 1957, under pressure from Mr Sidney Silverman, and finally abolished in 1965, I suspect that a great majority of the country was in favour of retaining it. A majority in the country may still favour that view; but, in 1957, and again in 1965, Parliament gave a lead, and my noble and learned friend and I ask it to do exactly the same again. Thus, I regard the present amendment as unfinished business left over from 1965.

At one end of the scale there are murders that deserve a whole life sentence; at the other end are murders where a life sentence was wholly and utterly inappropriate. I gave the example of Private Clegg, which my noble and learned friend mentioned again. That is why judges have always been against the mandatory life sentence. It is not that they mind being told what to do—or not much—but they dislike being made to say things that are clearly nonsense; for example, imposing a life sentence and saying, "You shall serve three years".

The list of the great judges who have opposed the mandatory life sentence is endless. My noble and learned friend has mentioned some names; I add only that of the noble and learned Lord, Lord Bingham of Cornhill, the senior Law Lord. His lecture on the mandatory life sentence, given in 1998, when he was Lord Chief Justice, is, as one would expect, a model of clarity, but it is also worth reading for some of the quotations that he uses. He quotes from a speech of the noble and learned Lord, Lord Irvine, in this House in 1989, who stated:

    "I would suggest that it is beyond argument that murder embraces such a multitude of diverse sins that the single mandatory life sentence must"—

that is his emphasis, not mine, but I emphasise it, too—

    "be inappropriate".

He then states:

    "The mandatory life sentence does not underpin public abhorrence of murder because everyone knows that life does not mean life".—[Official Report, 6/11/89; col. 521.]

I quote those passages from the noble and learned Lord, Lord Irvine of Lairg, without his permission, but I agree with every word.

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The noble and learned Lord, Lord Bingham, also quoted the noble Lord, Lord Richard, as saying:

    "The argument in favour of change is based upon one simple proposition—that murders vary greatly".

In the course of that lecture, the noble and learned Lord, Lord Bingham, said that his views were representative of and had the overwhelming support of all the Queen's Bench judges. The lecture ends with this sentence, with which I will also end:

    "I very much hope that a new, open-minded administration will be willing to re-examine the merits of this important question".

I share that hope and I am happy to support the amendment.

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