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It was cases such as these that led the House to set up a Select Committee chaired by Lord Nathan in 1988. It went into the whole question in great detail and called a number of witnesses to give evidence. Lord Lane, who was then Lord Chief Justice, and a great majority of the judges said that they were opposed to the mandatory life sentence. That was the view that the Nathan committee reached, and it therefore recommended that the mandatory life sentence be abolished.

Then there was the Select Committee of the House under the noble Lord, Lord Walton of Detchant, which reported in 1993. Unfortunately he cannot be in his place today. It reached exactly the same conclusion from a different standpoint. It said, in paragraph 261:

and this is important—

Then there was the report of a high-powered committee set up by the Prison Reform Trust, chaired by Lord Lane in 1994. That committee too came to the unanimous view that the mandatory sentence should be abolished. So far, although I may be wrong, I have not found a single instance of an inquiry that has supported the mandatory sentence. The question for the Minister is simply this: why have these recommendations been ignored?

Let me try to meet, if I can, some of the arguments that the Minister may advance. I can think of only three. The first and most obvious is that if it is abolished, some judges might not impose a life sentence when one is clearly required. The judges who try murder cases, however, are specially selected, have long experience and are all very familiar with the guidelines that describe when a sentence should be imposed. I assure the House of one thing: that judges are not reluctant to impose life sentences when they are appropriate. They should be trusted to do their job. Even if some judges made a mistake on occasion and did not impose a life sentence when they should have done, the Attorney-General can take the case straight to the Court of Appeal and have that put right. That argument simply does not stand.

The second argument is the one usually advanced by Home Office Ministers: that it would “send the wrong signal”. But what does that mean? It presupposes that someone, when planning a robbery, says to himself, “A life sentence is no longer mandatory, so I might as well take a gun with me and use it if necessary”. I suggest that that is complete make-believe. What deters an armed robber from taking a weapon with them is the certainty of the life sentence, whether mandatory or not, and the length of time he will actually serve in prison.

I will leave the third argument on one side. It may not be advanced by the Minister, and I hope it will not be.

I turn to the report, to see how the Law Commission has dealt with the mandatory life sentence. What is its view? The answer is that we do not know; we can only

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guess. The question was never put to the commission; it was outside its terms of reference. The commission was asked to assume the continued existence of the mandatory life sentence. One is bound to ask: why was it asked to make that crucial assumption? Was this not a key question on which the Home Office would have valued the view of the Law Commission, in the light of the recommendations I have mentioned? Why were its hands tied?

In the very few moments remaining to me, I must do my best to say what in my view would now be the correct structure for the law of murder and manslaughter. I would confine murder to the single case of intention to kill. I would not include the lesser degree of murder that covers intention only to cause bodily harm. I would then have four partial defences: provocation, as now; diminished responsibility, as now; a partial defence to cover the cases like Clegg and the police officer who shoots in the mistaken belief that a suspect is armed, or the householder who uses excessive violence; and a partial defence to cover mercy killing. It would not be hard to define this last defence, and it would be readily understood by the jury.

What does it all come to? We should abolish the mandatory life sentence. We should have a single offence of murder, not the dual offence recommended by the Law Commission, covering the intent to kill. We should have four separate partial defences reducing murder to manslaughter. All other homicide offences short of an intent to kill would be covered by manslaughter. That way we would have a simple, coherent and, above all, workable structure for the law of murder. I beg to move for Papers.

3 pm

Lord Morris of Aberavon: My Lords, the House is grateful to the noble and learned Lord, Lord Lloyd, for initiating this debate, for his careful analysis of an admirable report—not for the first time—from the Law Commission and for his proposals.

The difficulty is that Parliament has so many times lacked the will or time to implement so many of the commission’s reports with or without amendments. Homicide reform has always been a hot potato; the enactment of a homicide act evaded the willingness of even Mr Gladstone. The most telling recollection in the report is a comment by a criminal lawyer at the beginning of the 20th century that a belief that a criminal code would be passed in the House of Commons was as na├»ve as expecting to find milk in a male tiger. I hope we have now moved on.

The commission points out that:

The 2003 guidelines to the Criminal Justice Act have been helpful. I have been involved in more murder cases than I can remember, and in my time at the criminal bar, the main issue in the majority of those cases was the sentence arising from the question of whether the crime was murder or manslaughter. Identity was exceptional as an issue. The issue in multihanders was the role of the parties and whether they committed murder or manslaughter in its various forms.

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As we have already heard, as far back as 1993, Lord Lane, who was formerly the Lord Chief Justice, advocated a discretionary sentence for homicide. I agree with the noble and learned Lord, Lord Lloyd, that the mandatory sentence can lead to injustice. I venture to suggest the obvious: the British public easily understand the first limb of murder: the unlawful killing of another person with an intention to kill. I am less persuaded that they understand that the alternative to that is unlawful killing with an intention to do serious harm. In my experience, this is a matter that has worried and perplexed juries over the years, and I surmise that some have rebelled by returning verdicts of not guilty of murder but guilty of manslaughter in serious harm cases. As counsel for the defence, I have sometimes slapped myself on the back for getting a manslaughter verdict, although I did not quite understand why.

The commission comments that the inclusion of all intent to do serious harm cases within murder distorts the sentencing process for murder. I would go further than that because the anxieties of a jury can distort what should have been a proper verdict. I therefore welcome the strengthening—or the watering down, depending on which end of the telescope one looks through—of the alternative definition of killing through an intention to do serious injury with an awareness of a serious risk of causing death, which can be refined by the recommendation of High Court judges to include reckless indifference about causing death. For me, being aware of such a grim possibility or being recklessly indifferent to it is as good as proving an intention to kill. Any mitigation can be dealt with appropriately.

Whether we should embark on two classes of murder is more controversial. The commission argues very cogently that two classes are known in other jurisdictions. The terminology does not worry me. It should deal with many of the anxieties of juries while they ponder their verdicts. I never cease in my admiration of how juries approach their tasks.

I turn to the proposal of Sir Louis Blom-Cooper and Professor Terence Morris, who advocate a structure consisting of a single homicide offence. It would be committed on proof that the death was unlawful and that it was the outcome of the intrinsically unlawful conduct of the offender. The offences of murder and manslaughter would cease to exist. I believe that many years ago Lord Chief Justice Lane also recommended a single offence of homicide. The commission demurs and argues that the murder label is of the highest moral and social significance. I know what it means. How persuasive an argument that is in the cold light of day, I do not know. Some manslaughters are particularly heinous, and they do not carry the label of “murder”. I imagine the red tops’ field day if the Government were to abolish murder by calling it homicide. It is a measure that we have to take into account, perhaps put less starkly.

The report states that judges would not welcome that offence. I do not know on what basis, and if I am right about Lord Lane, that undermines that argument. The report states that it would be too inclusive and would cover a surgeon’s error so that his conduct

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would become murder. Perhaps this paragraph might be looked at again, because the conduct has to be intrinsically unlawful, so I find this paragraph difficult to follow.

While tightening up the alternative limb of murder may ease the task of juries, are they not going to jump from the frying pan into the fire in wrestling with the concept of tiered killings? After wide consultation, the commission expressed confidence that it would not prove too complex and pointed out that there is already a tiered structure for non-fatal offences. I hope that it is right, and I enthusiastically endorse the already developed practice among judges of providing written directions in murder cases.

There has undoubtedly been judicial tinkering. It is a rickety structure, but there was no alternative over 40 years of defining and redefining definitions of murder and manslaughter. The real problem is the need for reform at the border between murder and manslaughter.

The commission raised the question of whether “serious injury” should be defined. At present, where the charge is killing through an intention to do serious harm, the jury is entrusted with the decision about whether the harm intended was serious. Juries make that decision particularly well using the good common sense of 12 good men and women. I agree with the suggestions of experienced criminal lawyers, including a former DPP, that we should not embark on this field.

The commission did not enclose a Bill with its proposals and I understand why. I am confident that if a Bill is ever produced, every clause will be looked at very closely and some of these arguments, and many others, will be canvassed at great length.

3.08 pm

Lord Dholakia: My Lords, I add my thanks to the noble and learned Lord, Lord Lloyd of Berwick, for securing this debate. It is clear that over the years Parliament has not attempted to identify the purposes of sentencing or to prescribe the relative priority that the courts should attach to them.

Equally, the frequent calls for stiff sentencing for serious crimes such as violence, drugs or sexual offences are not necessarily in conflict with a wish to see fewer offenders in custody. Of course I look forward to the day when there is a determined effort to secure a shift in the public’s perception of crime and punishment. For that reason, I welcome the Law Commission’s thorough and thoughtful report. Unfortunately, however, the commission was working within one very important constraint, ably described by the noble and learned Lord, Lord Lloyd, which was not of the commission’s own making. The Government insisted, entirely wrongly, that the Law Commission’s recommendations must take account of the continuing existence of the mandatory life sentence for murder. The commission was therefore unable to recommend the single change that would do the most to enable courts to sentence justly in homicide cases; namely, the abolition of the mandatory life sentence for murder.

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Abolishing the mandatory life sentence would give judges the ability to take all the circumstances of each case into account and to graduate their sentences accordingly, passing determinate sentences where appropriate and reserving life sentences for the most heinous cases. Because of this constraint, under the Law Commission’s proposals, all intentional killings would be classified as first degree murder except for cases involving provocation, diminished responsibility or a suicide pact. Yet intentional killings vary greatly from planned and calculated killings for material gain or political motives to those committed under severe pressure and in emotional circumstances of great stress. Judges should be able to reflect these variations in their sentences.

The proposals would classify as second degree murder homicides in which the offender intended serious injury but did not intend to kill and was not aware that his conduct involved a serious risk of causing death. This would enable courts to pass determinate sentences rather than mandatory life sentences in these cases. Extending the partial defence of provocation to include cases of excessive self-defence, where the defendant has acted in genuine fear of serious violence, would mean that courts could sentence these offenders appropriately and would not be bound, as at present, by the mandatory life sentence. Allowing duress to provide a defence to murder in certain circumstances would also make the law more rational and humane.

I welcome the commission’s proposal that the definition of diminished responsibility should be extended to include developmental immaturity in an offender under 18. Many children who kill do not have the developmental maturity or the control, so making a conviction for first degree murder is inappropriate. Such child offenders typically come from backgrounds involving physical, sexual or emotional abuse, parental neglect, family conflict and violence. Under the commission’s proposal, such circumstances could justify a finding that the defendant had diminished responsibility for his or her actions. There are also offenders older than 18 to whom the definition of developmental immaturity could reasonably be applied. If the Law Commission’s proposal on this point is accepted, there is a strong case for increasing the proposed maximum age for this partial defence to 21, rather than 18.

The merits of some other aspects of the Law Commission’s recommendations are more doubtful. The commission proposes, for example, that an offender who intends to cause serious injury but not to kill should be convicted of second degree murder even if they were unaware that their conduct involved a serious risk of causing death. Under the commission’s proposal, the offender who punched a victim in the face, intentionally breaking his nose, would be guilty of murder if the victim fell, banged his head on the kerb and died from a brain haemorrhage. The average person might regard this offender’s conduct as reprehensible, but would surely see such a case as justifying a verdict of manslaughter rather than murder. It is particularly unfortunate that the commission has proposed that offenders suffering from diminished responsibility should be convicted of second degree murder, rather than manslaughter, as at present. This would be a seriously retrograde step. It is completely wrong to describe

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people as guilty of murder whose responsibility for their actions is significantly reduced by mental disorder. The current law is right to describe these killings as manslaughter, and the description should remain.

In seeking to justify its position on this point, the report argues that the same defendant will often make pleas of both provocation and diminished responsibility, and that it may not be clear which of these partial defences the jury has accepted. This is a completely inadequate argument for a proposal that would describe a youth with severe learning difficulties, who was persuaded by an older person to play a small part in a killing, as being guilty of murder. Where defendants plead both provocation and diminished responsibility, juries should be specifically asked whether they consider that the defence of diminished responsibility is made. If so, the defendant should be convicted of manslaughter rather than murder. Despite all this detailed criticism, the Law Commission’s proposals would have the beneficial effect of enabling courts to pass fixed sentences in a considerable number of cases that now attract a mandatory life sentence. I urge the Government to go further and accept that the time is now right for the long-overdue abolition of the mandatory life sentence for murder.

My final point is about mercy killings, which both noble and learned Lords mentioned, whereby a person acts, typically for compassionate reasons, to end the life of another person at that person’s request. I am thinking here of legally challenging, but not uncommon, cases such as those of the retired policeman, Brian Blackburn, who helped his terminally ill wife, Margaret, a former hospice nurse, to die at her request; and Heather Pratten, who helped her son Nigel, who was dying of the devastating condition Huntington’s disease, to end his life. Unlike the law in many other European countries, including Spain, Portugal, Norway and Italy, the law in England and Wales does not recognise the concept of homicide with consent. It makes no distinction between ending a person’s life at their request, and ending life without any such request. The Law Commission noted in its 2004 report, Partial Defences to Murder, that,

I am concerned about the reformulation of the defence of diminished responsibility which the Law Commission has proposed, which would, if successful, reduce a first degree murder charge to second degree murder rather than to manslaughter. This may help to tackle other types of cases where a life is unlawfully ended, but unless the fundamental issues to which mercy killings give rise are resolved by a full and dedicated consultation, as the Law Commission has proposed, the new definition of diminished responsibility will do little to prevent the benign conspiracies that I have described.

In view of the issues at stake and the unpopularity of this aspect of the current law, I support the Law Commission’s recommendation that a full consultation on mercy killings should be undertaken as a matter of urgency; otherwise the benign conspiracy risks becoming

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a malign conspiracy. I urge the Government to reassure me and the general public that this will happen. Let us allow the Law Commission to reach a resolution on this important matter.

3.18 pm

Baroness Murphy: My Lords, I add my thanks to the noble and learned Lord, Lord Lloyd of Berwick, for bringing this report to the attention of the House. I have an interest in this matter as I was very proud to serve as the psychiatrist on Lord Lane’s committee that was considering the penalty for homicide back in 1993. My views have not changed since the publication of that report. The law of murder is still in urgent need of reform, including in relation to expert psychiatric evidence in murder trials. I regret that subsequent Governments have remained set against what would be by far the most sensible and important reform, namely the abolition of the mandatory life sentence. Retention of this sentence militates against achieving individualised justice, both generally and specifically in relation to psychiatric factors relevant to proper sentencing.

Given the current legislative climate, however, if the Government were to adopt the commission’s proposed ladder principle and the distinction between first-degree and second-degree murder, then I assume that it would pragmatically be an improvement because fewer people would be caught by the mandatory sentence. It would chip away a little at that cliff face. However, it would still leave a proportion of cases inadequately dealt with. I express my thanks for some briefings that I have had recently from Professor Nigel Eastman—a forensic psychiatrist at St George’s, University of London, who has far more extensive experience of operating these provisions than I do—and from forensic colleagues in the Royal College of Psychiatrists.

As regards the curious partial defence of diminished responsibility in the setting of abnormality of mind, the report recommends, without any discernible logic, that it is used solely in first- to second-degree murder reductions so that only if there was an intention to kill could the person plead diminished responsibility. But surely one ought to allow reduction from second-degree murder to manslaughter on grounds of diminished responsibility too.

Let me look closely at this defence of diminished responsibility. Back in the early 1990s it was used about 130 times a year. Now the numbers have dropped off to 20 or 30 a year and perhaps that is no bad thing. But there is an inherent mismatch between the constructs and methods of inquiry of law and medicine, including psychiatry. There is no doubt that the use of expert psychiatric evidence within contested trial hearings directed towards determining verdict has at times been an unseemly process, bringing forensic psychiatrists a good deal of discomfort and sometimes creating work for those ill qualified rent-a-doc figures who, thankfully, are less in evidence in the courts these days. Psychiatrists do not feel qualified to pontificate on degrees of responsibility, though they may be qualified to pontificate on abnormality of mind. So often it comes down to making a judgment on a sliding scale of moral quality. As one of my colleagues remarked to me, when someone

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is really mad, the courts have workable options to dispose of a patient within the hospital system. It is the ones who are not mad that we have the trouble with.

There is, of course, the very rarely used defence of not guilty by reason of insanity, but psychiatrists agree that the defence of diminished responsibility is rather a blot on their practice. It is far better to use psychiatric evidence at the sentencing stage—if the judiciary has the freedom over sentencing—when a specialist opinion can be considered without the unseemly legal argument over the minutiae of the language used to describe types of abnormality of mind.

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