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The commission makes some proposals for modernising the definition of diminished responsibility. They are an improvement overall, but I would like further amendment to insert a further type of “diminished capacity to form a rational judgment”. I would like to see “arising from a recognised medical condition” as an appropriate wording to restrict “abnormality of mind”, and would further restrict “immaturity” to “developmental immaturity as a result of being youthful in years”. The current proposal is still too restrictive in regard to cases where there is a determined, even planned, intention to kill in the absence of any loss of control. Hence a severely depressed woman may kill her children on the basis of delusions that the world is such a terrible place that her children, whom she loves, would be better not in it, yet she might still be able to judge whether her actions were legally right or wrong. Alternately, a man may be paranoid and deluded about someone else and kill them in a planned way based on these delusions, yet still know legally or even morally that it is wrong to kill per se. There should therefore be a fourth basis for diminished responsibility to cover cases based on irrationality where there is no diminution of control.

Some successful pleas of diminished responsibility are based on “neurotic” or even “adjustment disorders”—which are not apparently very serious mental disorders—or acute reactions to stress. That may be perfectly proper, but restricting any such defence to those with a recognised medical condition would ensure that the defence was grounded in valid medical diagnosis and encourage reference within expert evidence to diagnoses in terms of one or two international classificatory systems, without explicitly writing those systems into legislation. That would encourage a common approach between experts and improve understanding between them. It might also avoid individual doctors offering somewhat idiosyncratic diagnoses as the basis for a plea of diminished responsibility. Overall, it would encourage better standards of expert evidence and improved understanding.

The criminal law as it applies to mercy killing is in a mess. I am very pleased that the Law Commission called for a separate review of it and I hope that we will take this up urgently. We know that 50 per cent of people convicted of mercy killing, whatever their sentence, go on to kill themselves. How many more people must suffer as a result of this inhumane law?

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At present, the wishes of the person who has been helped to die, as the noble Lord, Lord Dholakia, has said, are not relevant to the charge. The person who has helped the loved one to die can escape a long prison sentence only if he can show that he was suffering from diminished responsibility. The reality is that most of these cases involve a person who has a profound sense of responsibility and is definitely not in unsound mind. Time and again we see mercy-killing cases journey through the courts only to be dropped or reduced to a lesser charge on the grounds of diminished responsibility. In more than 15 years, not one mercy-killing case has resulted in a sentence for murder. Not one person has received longer than a 36-month sentence for manslaughter. The law is built on hypocrisy and still fails to protect the vulnerable.

Whatever the outcome of a review, mercy killings will continue unless a law providing for assisted dying is in place, along the lines of the Private Member’s Bill introduced last year. It is time for the Law Commission and the Government to listen to the public: 82 per cent of people want the law changed so that someone who is terminally ill and competent can ask for medical help to die. The benign conspiracies between psychiatrists and the legal profession, which the noble Lord, Lord Dholakia, mentioned, bring the law into ill repute. For the moment, the Law Commission report sets the problem to one side, but I do not believe that the Government will be able to do so for ever.

3.26 pm

Lord Brennan: My Lords, the House should be grateful to the noble and learned Lord, Lord Lloyd, for introducing this debate. His criticism of the mandatory life sentence has two virtues: it has been relentless and it has been correct. We have now reached the stage where that which was the subject of earnest debate years ago is now, frankly, eccentric criminologically and socially mysterious. People simply do not understand the nature of this sentence in relation to some of the circumstances to which it is addressed. I agree that it needs reform.

I turn to the Law Commission’s report, which calls for much more substantial reform of the law of murder. First, I regard this report as the opening chapter in a new reform of the law of murder and certainly not the last word. On further consideration, it may be that different degrees of the law of murder and different ranges of sentence may turn out to be the appropriate reform. But I am certainly not satisfied with the present state of criminal law. Although it is years since I did a murder case, over the past 40 or 50 years we have had malice, foresight, recklessness and intent all the subject of different and profound House of Lords judgments, which is not an appropriate state of affairs in which to consider the law of murder as a clear crime.

Reform is a general requirement. How are we to go about it? This is not a topic on which consultation—helpful as it is—is likely to be determinative. We are required as legislators to translate what we understand to be the overwhelming public feeling into rational and ordered legislation. Consultations apart, it is not the determinative

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part. We therefore should have, as did, I think, Professor Morris in the 1960s and 1970s, a detailed investigation of the history of murder over the past 10 or 15 years; that is, its type, the circumstance, and the way in which judges have applied the Criminal Justice Act 2003 and its appropriate schedule when determining the minimum period of sentence. That material is extremely important and, as was true when Professor Morris looked at it 40 years ago, is likely to reveal now that most murders are what is said to be domestic, being within a family or close relationship; that very few are downright shocking killings by gun or knife; and that not many are horrible serial killings. So reform is not simply to be directed at the Law Commission’s desire for legislative clarity, but to the real types of murder that confront our society.

Secondly, as to the appropriate approach in such an area for the legislature, why not have the fullest pre-legislative scrutiny after a draft Bill has been publicly considered and, if necessary, not only Grand Committee debates but the calling of evidence before an appropriate Select Committee dealing with that reform? We really must try and get it right this time. That will require a new statute defining the law of murder. Its underlying characteristic should be—I do not apologise for the word—killing. Ending another person’s life—whether with intent, with recklessness or through compassion—is a killing. Semantic fudge is not appropriate or sensible in this area.

With that reform in mind, why stop with the law of murder? In 2000, when I made my maiden speech in your Lordships’ House—full of legislative idealism, and untainted then by parliamentary reality—I asked why we do not codify the criminal law. Well, it was then only 120 years since Lord Blackburn had produced a code, and only 20-odd years since the Law Commissioner had produced a draft; but, really, in the legislative frenzy to which we have been exposed in the past 30 years, is there no room in the Parliament of this country to make the criminal law satisfactory for the protection of its citizens and the proper functioning of its courts? Of course there is, and we should find the room.

Why? Surely in the criminal law of this nation above all, coherence, clarity and certainty should find some place in our legislative endeavours. Surely the public would benefit, and the courts would be able to apply the law much more efficiently. The conclusion that we should all come to in a debate that is too short to consider detail, but rather should look to policy, is that we should reform the law of murder in the fullest and most comprehensive legislative way that we can contemplate, and then reform the criminal law. Then we can sit back as a legislature, and say that we have done something worth while for the country.

3.34 pm

Baroness Darcy de Knayth: My Lords, I welcome this most timely debate and congratulate my noble and learned friend Lord Lloyd of Berwick on his clear and compelling speech. I shall be extremely brief, as I am aware of the enormity of the expertise in various fields around me; increasingly so, may I say, with every speech. As an inexperienced lay member of the Nathan

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committee—alas, there are not many of us left—I became, and remain, strongly in favour of abolishing the mandatory life sentence for murder. I shall confine my remarks to this, except to endorse what has been said about the Law Commission’s report giving a masterly exposé of the current state of murder in this country.

I was very struck back in 1989 by the detrimental effect that the indeterminate sentence had on prisoners. They had no framework in which to plan to structure their lives, and this equally made it difficult for the prison officers because the length of the tariff was not disclosed. Nowadays the minimum term is set by the trial judge and the offender knows its duration. However, the life sentence remains mandatory.

We were very clear that the way in which to deal with murder was not to divide it into degrees but to give the judge the discretion to impose the sentence appropriate for that particular offence given all the relevant circumstances. I appreciate the fact that it was not within the remit of the Law Commission to reconsider the abolition of the mandatory life sentence and that it has tightened the criteria for first degree murder and consequently narrowed the reach of the mandatory life sentence. But is the answer really to create more tiers to draw more dividing lines? Drawing lines creates anomalies either side of the divide and life will still be the maximum penalty possible for all three tiers, as it would be without any line drawing. I firmly believe that the Government should be bold, grasp this nettle, get rid of the mandatory life sentence and give the judges discretion to deal with the offence in the light of all the relevant circumstances.

The Nathan committee found—here I paraphrase something that Lord Nathan said in moving an amendment to abolish the mandatory life sentence during the passage of the Criminal Justice Bill, on 18 April 1991 at col. 1565 of the Official Report—that what families of murder victims wanted was that when murder had been committed it should be called murder, not downgraded to manslaughter; whether the sentence was an appropriate, determinate sentence or a life sentence was of secondary importance. I feel that the public may well take the same view.

The punishment should be seen to fit the crime and there should be a meaningful period in custody. Rather than draw dividing lines, would it not be far easier to understand for everyone and have more appropriate results to ask, first, whether it was intentional killing and, secondly, given all the circumstances, what the penalty should be? Of course, the penalty could still be life imprisonment, but because it was appropriate rather than because it was dictated.

I support my noble and learned friend Lord Lloyd on all partial defences, particularly that of mercy killing. Above all, I hope that the Government take note of the thrust of his speech.

3.38 pm

Lord Dear: My Lords, I congratulate the noble and learned Lord, Lord Lloyd of Berwick, on securing his debate and bringing the subject again into the public eye. I fully support him in his endeavour to bring

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about a change in the existing law and I shall highlight just two separate and distinct aspects which I hope will go some way to supporting his case.

I want to dwell on the unusual position occupied by the uniformed services in discharge of their duties and deal more briefly, if I may, with the deterrent value of mandatory life sentences. First, to illustrate the position of the uniformed services, and in particular the police, I shall draw some lessons from the fatal shooting of Jean Charles de Menezes in Stockwell in July 2005. As many noble Lords will know, I served in all ranks of the police service, in the capital and outside, and during that time was trained to the highest level in the use of the whole range of police firearms. That training rightly emphasises at all times restraint, but sometimes circumstances can place almost intolerable demands on members of the uniformed services, when split-second decisions have to be made.

We all remember the loss of life and injury on a very large scale that was caused when four bombs were exploded by suicide bombers on the public transport network in July 2005. Two weeks or so later, another attempt was made but the firing chains of those four bombs were faulty. The bombs failed to explode and the bombers escaped. The following day, police were watching a block of flats where one of the would-be bombers was believed to live. The unfortunate Mr Menenez lived in the same block, resembled the suspect and was seen to leave and travel by bus, first to one and then another underground station. He went into the station. The officers following him were instructed by radio by their control room that they should consider him to be a terrorist bomber and prevent him boarding the train. The officers on the ground were not in a position to evaluate that information for themselves. In that fraught atmosphere in London, in July 2005, they had to act decisively.

Most of us would shrink from tackling a live bomb; certainly, we would not throw ourselves on to it in an attempt to defuse it. But, as we know, that is exactly what those officers did. They followed what they thought was a determined suicide bomber on to the train; they went forward when the vast majority of people would have retreated. They threw themselves on top of what they thought was a suicide bomber and they shot him before he could detonate the bomb that they believed him to be carrying. That was their training in the circumstances, extreme though the action might seem to be to some armchair critics. Suicide bombers use a number of different ways to detonate the bombs they carry and only instant fatal shooting, sadly, can guarantee that the bomb will not be detonated.

Had those officers been correct in their belief and had Mr Menenzes in fact been a bomber, we should now still be praising their courage—courage that would have undoubtedly seen the award of a George Cross. There are many examples of the award of VCs and GCs to those who have dealt personally, and with complete disregard for their own safety, with bombs that are likely to explode. But Mr Menenzes was not a bomber. He was an electrician, probably on his way to

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work. The officers will not be awarded medals and they face the very real risk of prosecution for capital crime. I can describe these circumstances in your Lordships' House because it has been decided not to prosecute them but instead to prosecute the Metropolitan Police, as an organisation, for offences under health and safety legislation, doubtless a route in which it is felt that the greatest exposure of all the facts can be assured.

I do not pass comment on the decision-making process that took place in the control room that day. I have no knowledge of it and, in any case, it would be sub judice. Subsequent proceedings will doubtless produce some answers for us on that point. However, I am confident enough of the facts to know that the officers on the ground probably displayed enormous and exemplary courage and took decisive action which they thought was correct in those fraught and demanding circumstances. The action was not correct. They must have come very close to being prosecuted for it. Had events been only very slightly different, one surmises that a prosecution would have been brought against them, they would have been convicted of murder and a life sentence would have followed, no matter how great the pressures on them at the time.

I do not suggest that the uniformed services, police or military alike, should be put into a special category. I do not suggest that they should be allowed to operate in a way that puts them above or outside the law. But it must be right that, if they are convicted, the court has the discretion to determine a sentence appropriate to the circumstances which, as I hope I have illustrated, can be utterly extreme and quite outside anything that the average person could ever experience.

That leads me to my second point, on which I shall be brief. I do not believe that there is any deterrent value in the mandatory life sentence. Indeed, I doubt whether there ever was. It is said, perhaps apocryphally, that pickpockets operated around Tyburn gallows in Georgian London while convicted pickpockets were being executed. Whether or not that was the case, I believe that then, as now, it is the certainty of arrest and conviction that really deters, together with a sentence that is proportionate to the gravity of the offence. It is already common knowledge that a life sentence usually means a minimum of eight years or thereabouts. It is also common knowledge that premeditated murder, or murder where there is a callous disregard for the circumstances leading to death, will usually result in a very much longer minimum sentence.

Hard core criminals know that today they can expect terms well in excess of eight years, but it is surely right to trust the judgment of the trial judge to distinguish circumstances where a degree of leniency is called for and to allow that judge to pass a shorter sentence in those circumstances. We have heard much comment today on mercy killing and I associate myself with those remarks. It would greatly improve the administration of justice for this most serious offence and would import a degree of sentencing particularity and sentencing accuracy that is sorely lacking at present. I support the Motion.

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3.45 pm

Viscount Bledisloe: My Lords, I add my voice to those congratulating the noble and learned Lord, Lord Lloyd, on introducing this debate, and in particular, on the fact that he has brought into it the question of the mandatory life sentence, which is, I suggest, absolutely critical, at least in practical terms, for the whole topic. Nonetheless, it was a matter that the Law Commission, the report of which we are considering, was debarred from taking into account or commenting on. Faced with that restriction, the Law Commission had to attempt to divide up the concept of unlawful killing, so that first-degree homicide had a mandatory life sentence, while the court had a sentencing discretion for second-degree homicide.

As has been demonstrated time and time again, however, categorisation of murder does not go to the question of heinousness. That was the fatal defect of the Homicide Act 1957, which made some types of murder capital offences, but not others—an anomaly that was highlighted in a passage quoted by the noble Earl, Lord Ferrers, who was the relevant Minister when the 1989 report was debated. The noble Earl quoted as follows:

That meant, of course, that the only people who faced the death penalty for murdering their wives were those who had not done their research properly or who had not looked at the Homicide Act. They had, therefore, chosen the wrong method of doing it. This problem of categorisation will remain even if the proposal in the report of the Law Commission is accepted.

A clear example of this is mercy killing, which will remain first-degree murder with a mandatory life sentence, because the categorisation depends on the intent of the accused, not on his or her motive and reason for the killing, or on their moral responsibility. There is an infinite range of similar examples, some of which noble Lords have already put forward.

The solution—certainly the best solution, and probably the only real solution—is for the court to have a complete discretion in sentencing, which enables it to make the punishment fit the crime, and not to attempt to categorise the crimes, so that the categories fit the punishment. The 1989 Select Committee got it right when it said:

The mandatory life sentence is, I believe, a sop that was given to those wavering on the abolition of capital sentences for murder. It was opposed by the Lord Chief Justice, and the great bulk of the judges, who wanted life imprisonment to be one of the sentences that was open to them in the general exercise of their discretion. The mandatory sentence is sometimes defended on the basis that killing someone is a uniquely terrible crime. But in any rational approach, that is just not true. As Lord Hailsham rightly said:

I remember a case tried in the days of capital punishment by that great and good criminal judge, Mr Justice Wintringham Stable. A young mother had been, wholly rightly in law, convicted of the murder of her young child, in circumstances which did not quite fall within the definition of infanticide. The judge said to her: “I now have to say something to which you should pay no attention. I can assure you that you will be back with your family very soon”. He then passed the mandatory death sentence in low and hurried tones, and said to me afterwards, “That should tie the Home Secretary's hands sufficiently”. But not many of his colleagues were quite as robust as that.

Not only does the passage of the mandatory sentence give to those in court a wholly misleading impression; it also distorts the statistics. It is one of the reasons why people are able to say, “Life sentences do not begin to mean it. You get out very quickly”. If you put into the equation the mercy-killers who get out after three months although they have been sentenced to life imprisonment, of course you will get curious statistics. But the answer is that they should not be there. It may also be said that the mandatory life sentence has led to artificial distortion of the law where juries have found provocation or diminished responsibility contrary to the fact but out of a very proper sense of sympathy. All that would be avoided if the courts could pass a sentence that does fit the facts of the case. I urge the Government to go ahead and do that abolition. Some of the more subtle points, and perhaps the categorisation of mercy-killing, can then wait. If you have discretionary sentencing, you have solved most of your problems.

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