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3.52 pm
Lord Bramall: My Lords, I want to make only one point in this most important debate introduced by my noble and learned friend Lord Lloyd of Berwick, and he has already mentioned it. If a member of the Armed Forces on duty in an area in which operational or emergency conditions apply, and in the course of that duty, in good faith and without any malice aforethought, shoots and kills a suspected offender and is subsequently judged by a court to have been guilty of committing an error of judgment, it is grossly and manifestly unjust that, because pointing a weapon and squeezing the trigger legally constitutes intent, the only punishment that he or she can be awarded is a life sentence for murder instead of a lesser punishment more appropriate for an unlawful but not premeditated killing.
By “good faith” I mean that there was no prior intent when he or she went on duty to harm anyone, let alone the deceased; that the accused, in taking action against a suspected offender, believed that he was acting in the line of duty and even following a lawful order or instruction, perhaps set out in a rules of engagement card, if one existed; or that he considered that there was imminent danger to himself or to others. The error of judgment—if that indeed was what it was—could so easily have been brought about
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Whatever comes out of this debate to prompt Parliament to take action on modifying the law on murder and providing discretion about sentencing, I hope that earnest consideration will be given to the predicament of good men and true, serving their country under the most difficult circumstances, having to have imposed on them, and live with for the rest of their lives, a terrible life sentence for what, at the worst, was a culpable error of judgment made under considerable stress and strain when on duty. This has happened more than once in Northern Ireland and could easily happen at any time in Iraq or in any other places where our Armed Forces and, indeed, all our uniformed security forces—what I have just said only echoes the excellent points made by my noble friend Lord Dear on the same sort of predicaments faced by police officers—serve their country on active duty in the most complex and dangerous circumstances.
3.56 pm
Lord Woolf: My Lords, I, too, can be brief, having regard to the excellent speeches that preceded mine, thanks to my noble and learned friend Lord Lloyd giving us the opportunity to debate this very important subject.
It may be surprising that a former Lord Chief Justice should speak briefly on this subject. Certainly each of my predecessors of whom I had personal knowledge made speeches of some length on this matter, all focused on the subject on which I want to focus. Ironically, because of the terms of reference which were given to the Law Commission, it was not able to deal directly with the matter; that is, that the solution to the problem, which we all agree exists, is the abolition of the mandatory life sentence. Whatever the history or explanation of a mandatory life sentence following the offence of murder, events since that sentence was imposed have clearly shown that it is not the way to uphold justice in respect of what can be, and usually is, the most heinous of crimes.
In recent times two important changes have come about in the sentencing process for those convicted of murder. The first change is that it is no longer the province of the Home Secretary to decide when a convicted person is to be released. If the Home Secretary, not the sentencing judge, were to determine when a person should be released, there would be some logic in curtailing the role of the sentencing judge. Formerly, a sentencing judge who had to deal with a murder case had no problem in determining what the sentence should be. You were spared the soul searching that took place in respect of many sentences. That matter was passed to the Home Secretary, though you were encouraged to write him a letter giving your views on the gravity of the sentence in order to help him.
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The second significant change that has taken place is the development of guidelines, which are now provided primarily by the Sentencing Guidelines Council, although exceptionally, and in my view mistakenly, the legislature occasionally intervenes. The Sentencing Guidelines Council has the benefit of an expert panel. With that expert panel’s help, it can give the broad assistance that a sentencing judge needs to perform his or her role. Guidelines undoubtedly help. They mean that a judge now knows that if he departs from the guidelines, which can be and are subject to public debate and scrutiny by committees of Parliament, it will be the subject of a reference by the Attorney-General. So there is no risk of the judge misusing his discretion to the danger of the public. The fact that those two changes have occurred, I suggest, means that the time is ripe to look again at the mandatory sentence.
The mandatory sentence is a blunt instrument. Justice today should be refined to deal with some of the cases which have been drawn to our attention by the noble Lord, Lord Dear, and the noble and gallant Lord, Lord Bramall, to deal with the kind of cases we have heard described as mercy killing; and to deal with the cases where a defence of provocation and diminished responsibility is raised. In all those situations, if the judge has a discretion, he can take the approach which the facts dictate. There are difficulties if a case falls just without provocation and the person concerned is convicted of murder rather than manslaughter. The same very experienced judge to whom the noble Viscount, Lord Bledisloe, referred was presiding over a case when I was still a pupil. My pupil master was running the defence of provocation. It was a case where the defendant was entitled to the greatest sympathy. As my pupil master started to develop the defence of provocation, Mr Justice Slade—as he was in the habit of doing—tapped the desk with his pencil saying: “Mr Jones, if I were you, I wouldn’t water the brandy”. He had a sufficient confidence in our juries to know that with an appropriate summing-up, albeit one which would not enter the law of precedent, it was possible to achieve a just sentence without the law of provocation. That is another example of the fact that having a mandatory sentence which applies in one situation but not in another creates artificial situations and requires a judge to exercise those skills which only temporarily should be deployed by judges when the circumstances so demand.
I urge the Government, as have those who preceded me, to take the straight and direct course of changing the sentence from a mandatory to a discretionary one. If that is not possible, I have sympathy with the recommendations of the Law Commission, although I urge caution because once you start stratifying an offence, even if it be murder, into murders of different degrees you run the risk of creating more problems than you seek to solve. However, I acknowledge that it has done noble work in trying to clarify the difficult concepts that are contained in the law of homicide at present.
4.04 pm
Baroness Finlay of Llandaff: My Lords, like others before me, I thank my noble and learned friend Lord Lloyd for introducing this debate and particularly for
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Therefore, I wish to concentrate on part 7 of the report, which has already been referred to with great compassion by my noble and learned friend Lord Lloyd and others who have spoken. I will consider it from a medical context. The partial defence of mercy killing may need a different name, because the term “mercy killing” is morally loaded, presupposing and implying that the motive was purely compassionate and merciful. It does not encourage other secondary motives, if they exist, such as personal benefit, to be equally assessed, even though we are here talking about the deliberate ending of the life of someone who appears to be in great distress.
It is worth noting, as was highlighted in the report, the sex difference in suicide pacts and consensual killings, which usually involve male carers killing their spouses. That raises some very important societal issues around caring for those who are vulnerable. The threshold of exhaustion needs to be assessed differently for male carers, and yet health services are predominantly staffed by women, and it is women who are undertaking assessments with a view to respite care or enhanced support. It may be that we are not appropriate to assess male carers. Such provocation of men needs to be considered. In other jurisdictions, it seems that the concept of force majeure in the medical context has developed in a way that would be incompatible with English law on murder. It is open to variable interpretation, including the level of knowledge and skills of the doctor, if it is a physician who deliberately ends life.
The Criminal Law Revision Committee recommendations on reform of 1976 made no reference to the state of mind of the victim. Indeed, one is left after the victim’s death only with the perception of others of that victim’s state of mind, yet such proxy assessments with hindsight are not accurate and are often skewed by the person’s own emotional distress, particularly if they were close to the person who died. Pressures, real or perceived, can coerce a person to feel that their life is of no value. Only too often that changes when good care is given in a way that enhances dignity. The vulnerable emotional state of the person who is frightened, in despair and possibly distorted by undiagnosed depression, which occurs in almost one third of those with serious life-threatening illness, should not be underestimated.
It is worth noting that the Criminal Law Revision Committee in the final report declined to recommend the creation of an offence of mercy killing, saying:
“It was said that our suggestion would not prevent suffering but would cause suffering, since the weak and the handicapped would receive less effective protection from the law than the fit and well because the basis of the suggested new offence would rest upon the defendant’s evaluation of the condition of the victim. That evaluation might be made in ignorance of what medicine could do for the sufferer”.
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I remind noble Lords that Dr Cox, whose actions were publicised as a mercy killing, was convicted of attempted murder. He was seriously admonished by the General Medical Council for failing to take advice from colleagues who knew far more about pain control and who would have been able to offer constructive clinical advice in how to relieve the overwhelming distress of the patient.
That highlighted the problem of the doctor who works for far too long in the belief in his or her own competence across a broad range of areas. Another danger is the doctor, nurse or other carer who is tired, burnt out or simply a little lazy, and who perhaps dislikes the patient and finds caring for them taxing. It is all too easy to abandon efforts at diagnosing the true roots of distress and working hard to find resolution through meticulous attention to detail. Subtle secondary financial pressures are also felt by clinicians, and we know from the Dutch evidence how financial factors can subtly influence the thinking of some when it comes to end-of-life decision-making. The commission’s learned report points out the complexity of the subject of so-called mercy killing and that it is integrally linked to the debates around assisted suicide, physician-assisted suicide and euthanasia. They felt that views they had received on mercy killing as a partial defence were potentially one-sided, since their original consultation had not asked about this.
The limits on the proposed reformulation of the criteria for diminished responsibility in the light of the evidence from the Royal College of Psychiatrists are to be welcomed. When tragic situations arise and lead to so-called mercy killing, all will argue for compassionate reasons, whether in defence of the perpetrator or from the standpoint that the current law protects the most vulnerable in our society.
The final recommendation at part 7 is that the law should remain unchanged, pending a public consultation. I hope that any such consultation will be extensive and in-depth and will include those with expertise from all sides of the arguments. The complexities and ramifications of such changes in the law are far beyond the decisions and conclusions reached through simply conducting focus groups or population polls. The discretionary sentence, as my noble friend Lord Bledisloe suggested, may enable considerations of a partial defence of mercy killing, or whatever else it is called, to be looked at, devoid of such current pressures.
4.11 pm
Lord Monson: My Lords, I too congratulate my noble and learned friend Lord Lloyd of Berwick. I rise to speak with considerable trepidation as a complete layman amidst a galaxy of eminent legal talent and equally distinguished professional talent in other spheres. But I felt another lay perspective to add to that of my noble friend Lady Darcy de Knayth might not be wholly unhelpful.
I decided to add my name to the speakers list only 48 hours or less ago so my scrutiny of the report is less thorough than I would have liked. But its broad conclusions seem so utterly logical that it is hard to imagine any valid reason for delay in implementing them, notwithstanding doubtless valid quibbles over
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There is a weakness in the report. As many noble Lords have pointed out, it is absolutely through no fault of the authors, since they reveal on page 15:
Sentencing is therefore touched on in only five out of the 265 pages. The weakness is that confusion and ambiguity over sentencing is perhaps the chief cause of public mistrust of and cynicism about the application of the criminal law. This is by no means confined to sentences for murder and similar serious crimes.
Well over 10 years ago Mr Michael Howard, then Home Secretary, made a clarion call for “honesty in sentencing”. Unfortunately he did not follow it up, since well over a year later those sentenced to four and a half years imprisonment for an intermediate offence still found themselves spending 50 per cent longer behind bars than someone else sentenced to four years for a similar offence, as the first sentence attracted one-third remission and the second 50 per cent remission.
Moving on to 2004, Mr David Blunkett, the then Home Secretary, declared the Government’s intention to,
That was a characteristic new Labour soundbite—it sounded good initially but turned out to mean something very different because, by that time, primarily owing to prison overcrowding, effective remission on shorter sentences could amount to 75 per cent or, in some cases, more than 75 per cent of a sentence. Of course the public were reassuringly told that these people were out only on licence and could be recalled at any time. But, rightly or wrongly, the public tend not to be impressed. Perhaps in an ideal world they would be impressed but we do not live in an ideal world.
Nowhere is that ambiguity and confusion more marked than in the case of so-called life sentences. One day people read in the press that a murderer has been sentenced to life imprisonment, with a judge's recommendation that he serve at least 15 years, and the next day they read that an armed bank robber, who did not fire his gun and who physically harmed no one, has been sentenced to 20 years. I would bet heavily that at least 90 per cent of the public—probably 95 per cent—imagine that the bank robber will spend one-third longer behind bars than the murderer. That causes puzzlement and resentment—a totally unsatisfactory and unhealthy state of affairs—whereas, in truth, the outcome is almost the reverse. Assuming that the policy of 50 per cent remission persists, the murderer will spend 50 per cent longer behind bars than the bank robber.
To restore public confidence, surely the ratio of what we might call gross to net sentences for all offences should be aligned, with one standard rate of
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Might it not be worth while examining the system that applies in some American states, where for very serious offences, including murder, judges can sentence a convicted person to, say, 25 to 99 years or 42 to 99 years, the figure of 99 being a symbolic reflection of the gravity of the offence rather than a realistic projection of the time to be served. Adapted for English conditions, bearing in mind the absolute desirability of standardising remission procedures across the board so as not to confuse or alienate the public and to achieve Michael Howard's goal of honesty in sentencing, that would mean that instead of imposing a life sentence with a 15-year minimum recommendation, a sentence of 30 to 99 years would be imposed, or 30 to 75 or 40 to 100—there is no need to follow the American system slavishly. For the worst type of murder, instead of life with a 30-year minimum recommendation, one would impose a sentence of 60 to 100 or 60 to 120 years.
For mercy killing, in complete contrast, the appropriate sentence might be two to seven years, with the expectation that a convicted person would be out in 12 months. The seven years would be symbolic, reflecting the fact that someone had died and not in the expectation that seven years would ever actually be served. The outcome for the prisoner would be exactly the same—indeed, for a mercy killer it would be better in that he would be on licence for a much shorter period. What would alter would be public and media reaction to justice more clearly being seen to be done. This would surely be overwhelmingly favourable. I hope that the Government might at least consider whether proposals along those lines have any merit.
4.18 pm
Lord Hope of Craighead: My Lords, I hope I may be forgiven for intervening briefly in the gap. I am emboldened to do so because I know that the noble and learned Lord, Lord Lloyd of Berwick, was anxious that someone with experience of how the law operates in Scotland should contribute to the debate that he has initiated. I do so against that background.
The problem to which he has drawn attention exists in Scotland as well because the mandatory life sentence operates there in a very similar way to that in England and Wales. However, the problem is less acute. I shall explain briefly why that is so. It is worth recalling, as a matter of history, that the concept of diminished responsibility was developed by Scottish judges many years ago in the time of the mandatory death sentence, but as matters are today, the reason why the problem is less acute lies in the definition of the second limb of the definition of murder to which the noble and learned Lord, Lord Morris of Aberavon, drew attention in his speech. While the first limb requires proof of intention to kill, the second limb is defined to a
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In practice, the question of whether the sentence will be the mandatory life sentence or a discretionary sentence is to a greater degree in the hands of the jury, because they have greater discretion in evaluating where the border lies in the act of the accused. Having prosecuted many murder cases in my time at the Bar, I know that it is difficult to prove an intention to kill. However, in many cases a murder conviction was appropriate because the second limb applied. I do not wish to detract in any way from the many speeches that have been made about the need for reform of the sentence, but if the Minister says that it would be going too far, I would respectfully suggest that there is a great deal to be said for looking very hard at the second limb, no doubt with the benefit of the investigation into how the law has been operating over 15 years, to which the noble Lord, Lord Brennan, referred.
4.21 pm
Lord Thomas of Gresford: My Lords, we are very grateful to the noble and learned Lord, Lord Lloyd, for raising the issue of what he has described as a “complete and scholarly” report. I wish it had contained a draft Bill, so that some of the controversial issues in its recommendations could be before us in a more concrete form. There is a more fundamental flaw, to which noble Lords have referred and for which the Law Commission cannot in any way be criticised. The terms of reference contain the political imperative that the recommendations take account of the continuing existence of the mandatory life sentence for murder.
The noble and learned Lord, Lord Lloyd, the noble Viscount, Lord Bledisloe, and the noble Lord, Lord Monson, have rightly called attention to the fact that circumstances are infinitely variable, from mercy killing, killing on the spur of the moment, and cold-blooded and planned killing. Methods of killing vary: the fundamental cause of a death may be poison, a shooting, a knife, a punch or even a push. Victims vary. There is a difference between a gangland killing and the killing of a small child or baby. All these variable factors should be before a judge who can come to a balanced decision as to what the sentence should be in a particular case. I would respectfully suggest that it is impossible for Parliament to decide in advance what an appropriate sentence is.
The noble and learned Lord, Lord Woolf, referred to the guidelines issued by the Sentencing Guidelines Council. In this area, when we are considering the minimum term and so on, we are bound by the straitjacket of statutory guidelines laid down in Schedule 21 to the Criminal Justice Act 2003, against which we spoke at the time.
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