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The political imperative has forced the Law Commission into constructing this ladder, promulgating two degrees of murder as the first and second rungs, with manslaughter as the third rung. Immediately, this demands, as the noble and learned Lord, Lord Morris of Aberavon, and the noble Baroness, Lady Darcy de Knayth, pointed out, the drawing of boundary lines, mainly by focusing on the concept of intention and

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the use of the partial defences of provocation and diminished responsibility. These proposals in no way simplify the law; they will not lead to less frequent or shorter trials. If anything, they will add complexity to the task of a jury trying a case of culpable homicide.

The structure recommended by Sir Louis Blom-Cooper and Professor Terence Morris in their study, With Malice Aforethought, proposed that there should be a single homicide offence. They recognised, as the Law Commission itself said, that this was not within the terms of reference. The Law Commission rejected it in any event, on the basis that a hierarchical structure makes it possible to provide different sentencing possibilities for each crime and allows the jury, rather than the judge, to determine the gravity of the offence in post-sentencing procedures. By splitting it up into different levels, with the jury deciding what is the appropriate level, it is the jury that is making at least a broad categorisation of the offence. That is quite a good argument. It would have more force if we had special verdicts used more often in our courts that actually indicated how the jury had come to its conclusion, but it is very rare that a judge will allow a special verdict that will say that a decision of manslaughter was made on the basis of provocation as opposed to diminished responsibility, and so on.

If mandatory sentences, coupled with the division into degrees proposed in the report, are brought into effect, there has to be amelioration. That then requires the perpetuation of the partial defences, which I regard, from years of practice, as being highly unsatisfactory. Provocation and diminished responsibility are defences that are sometimes run singly, sometimes conjointly. For example, as the Law Commission described it in 2004, in mercy killings there is frequently that “benign conspiracy” whereby the prosecution, the defence, the judge and everyone collaborates in describing a mercy killing as due to provocation caused by the circumstances in which the individual found himself or to diminished responsibility, to reduce the offence to manslaughter and consequently lead to a lesser sentence.

These partial defences are complex. Provocation in particular is an extremely complex area; you have to show that the defendant has himself lost control, and that a reasonable person of like age and background would have lost control. That gives rise to the issue of who is the reasonable person. The noble Lord, Lord Brennan, referred to the differing judgments that go one way or the other in this field. I recall the case of Luc Thiet Thuan in 1997, before the Privy Council when I appeared for the appellant, where the council decided that no account should be taken of the fact that the appellant had suffered from a congenital brain defect. The noble and learned Lord, Lord Steyn, dissented from that Privy Council judgment. The Court of Appeal for England and Wales followed the noble and learned Lord, as did the House of Lords, in the case of Morgan Smith. Last year nine judges sat in the Privy Council in HM Attorney General for Jersey v Holley, and they held that Smith was erroneous. On the issue of who is the reasonable man there is currently a great deal of conflict. The recommendations of the Law Commission do not help to resolve the problem; they simply do not deal with it in any satisfactory way.

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There is another problem: should the judge leave provocation to the jury, even if the defence does not rely on it? The Law Commission recommended in its report, published in December 2006, that the court should revert to the practice prior to 1957 where the judge filters out speculative and wholly unmeritorious claims subject to an appeal. However, that ignores the judgment as recently as last July in the Judicial Committee of this House in the case of Coutts, where the noble and learned Lord, Lord Bingham, gave an excellent exposition of where the public interest lies, to the effect that the question of provocation should be left by the judge to the jury, even though the defence does not rely on it in an appropriate case. He emphasised the importance and fairness of that in having a just trial.

The other problem that arises with these partial defences is that in some instances the Crown realises that there are strong grounds for provocation or diminished responsibility. So, if there are degrees of murder, rather than allow a jury to determine what are essentially mitigating factors that could well affect the sentence, it might well bring a charge of second-degree murder in which, under these proposals, such a finding would be irrelevant. That would be highly unfortunate for the defendant and perhaps for the victim’s family, which would be deprived of a possible verdict of guilty of first-degree murder. The use of provocation and diminished responsibility to ameliorate the effect of these proposals has not been properly considered.

Diminished responsibility is another difficult area. I was interested in the contribution of the noble Baroness, Lady Murphy. I recall one case in which eight psychiatrists and psychologists were called to give varying opinions about a person’s state of mind. There was a trial; there was an appeal on the grounds that a psychiatrist had changed his opinion; there was a second trial; and the matter went on to further appeals. As I understand it, the defendant has been in Broadmoor under an executive decision and is now about to be released into the community. There can be such a degree of difference between medical experts on this issue.

Diminished responsibility and provocation would not be necessary as partial defences if we did not have the mandatory sentence distorting the criminal law of murder. It is quite wrong to hold that under these proposals provocation could reduce first-degree murder to second-degree murder, but should not operate to reduce second-degree murder to manslaughter.

As the noble and learned Lord, Lord Lloyd, said, there is a great deal of material in this report. It covers a very wide topic, and I regret that we do not have more time to debate it. I am extremely grateful to the noble and learned Lord for bringing the matter forward.

4.33 pm

Lord Kingsland: My Lords, I, too, am extremely grateful to the noble and learned Lord, Lord Lloyd of Berwick, for bringing this matter, not for the first time, to the attention of your Lordships’ House. He has pursued it with his customary persistence and eloquence. We have all greatly benefited from what he said.

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As noble Lords will have expected, the debate has been of a very high quality; and one of its distinguishing characteristics was that not only were the legal contributions compelling but so were the contributions made by noble Lords who do not have legal qualifications. I was particularly struck by the speeches of the noble Baronesses, Lady Murphy and Lady Finlay of Llandaff, on the topics of diminished responsibility and mercy killing. The noble Lord, Lord Monson, rightly remained us of the importance of honesty in sentencing and of what a distance we still have to travel to achieve that. I thought we were extremely lucky to have the noble Baroness, Lady Darcy de Knayth, here. Many years ago, she sat on the Nathan commission, which recommended the replacement of mandatory life sentences with a system of discretionary sentencing.

The noble and gallant Lord, Lord Bramall, and the noble Lord, Lord Dear, reminded us of the testing circumstances in which the uniformed services, which are armed, have to comply with a law of murder that sometimes leaves them in impossible circumstances. One of the gaps in what has otherwise been an excellent report by the Law Commission is this failure to address that issue. The Minister has undertaken to consult on the Law Commission’s report; and I am sure that she will have found that the debate this afternoon has made a contribution to the questions that will be posed. I hope that she will have taken particular note of the speeches of the noble and gallant Lord, Lord Bramall, and the noble Lord, Lord Dear, and will ask some apposite questions in that context.

One of the characteristics of the debate is that it has been dominated by sentencing, which was not addressed in the report. We know from the noble and learned Lord, Lord Lloyd of Berwick, why sentencing was not included. It was not included simply because it was not part of the terms of reference of the Law Commission. I find that strange, because when one considers any crime, but particularly murder, the credibility of the sentencing system is as important as the conformity of the law with people’s moral standards. The two march together; and I submit that you cannot reasonably address the one without the other.

The Law Commission has produced a very thoughtful report on the law. Curiously, one of the consequences of its proposals, if they are accepted by the Government and appear in a Bill, is that more people will be convicted of murder than before. This is because the offence of reckless manslaughter will be moved up from the manslaughter category to the category of second degree murder. That category, it has been assumed by the Law Commission, will be subject to a discretionary sentencing system and not a mandatory sentencing system.

I listened with great interest to the noble and learned Lord, Lord Hope, on the situation in Scotland. To some extent, one sees that thinking reflected in the Law Commission’s definition of first degree murder; because, in addition to an intention to kill, the intention to commit serious harm is now qualified by the requirement that the accused should be reckless as to

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whether there is a serious risk that the act might end in death. In a sense, therefore, the Law Commission is moving towards the Scottish situation.

There are important criticisms to make of mandatory life sentences that are unique to the mandatory life sentence. One, to which many of your Lordships drew our attention, is the way in which the fact of a mandatory life sentence distorts the approaches of juries to assessing the evidence and often leads to acquittals in circumstances where that would otherwise be inappropriate. The other distinct category of mandatory life sentence is that, however short a sentence is served, at the end of the day, when you leave prison you are subject to a licence for the rest of your life. That is highly undesirable for many offences.

However, surely the real issue here is wider than this; because even if it is right to replace the mandatory life sentence with the system recommended by the Nathan committee, we are still faced with the problem highlighted by the noble Lord, Lord Monson—namely that everybody knows that the sentence that is handed down by the court often bears little relation to the amount of time the individual spends in prison. That undermines the whole credibility of the sentencing system. Until we address that problem, the general public will not have faith in our system of criminal law. If we move to discretionary sentencing, we still have to take this further step of being honest about sentencing so that sentences handed down by judges are the sentences that are served by the person who has been convicted. That is, in a sense, the dog that did not bark in this report; but it is the dog that ought to have barked.

I for one would be very reluctant to move down the road of a Bill seeking to change the law of murder along the lines of the Law Commission report without at the same time having a set of rules about sentencing which were truly credible in the eyes of the general public. In my view these two matters run together and I hope that is the message that the Government will take away.

4.41 pm

The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, let me join all those who have chorused congratulations to the noble and learned Lord, Lord Lloyd of Berwick, on calling for this extraordinarily useful debate. I think we have had a glittering array of talent. It is rare indeed to see so many noble Lords with legal backgrounds, Lords of Appeal in Ordinary, gallant Lords, scientific Lords, musical Lords almost from the Liberal Democrat Benches, singing so clearly in relation to this matter. I join the noble Lord, Lord Kingsland, not only in congratulating noble Lords but in rejoicing in having the noble Baroness, Lady Darcy de Knayth, with us because I, too, think that she was wrong to say that she does not have an expertise, having joined that Nathan committee with such distinction.

I am however a little perplexed as to where the party of the noble Lord, Lord Kingsland, actually sits. I do not understand whether he is saying that he would get rid of the mandatory life sentence. I see him shaking his head. No, he is not saying that. And I do

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not understand whether he is suggesting that the current system of sentencing should no longer have remission or parole or licence periods after sentence and that we should simply have a sentence of imprisonment. I am sure that he will elucidate on that in later debates, but I am somewhat perplexed about his party’s position on this. But as I now experience that perplexity in so many policy issues, I should perhaps become a little more accustomed to it.

It is a matter of great celebration that we are looking at the Government’s review of the laws of homicide because this is the first proper review in this area for more than half a century, and it is important that at all stages we debate it very thoroughly indeed. I can assure your Lordships that all the comments made during this debate will be taken into account and fed directly into the review of the Law Commission’s contributions. The impetus for this review was the concern with the way in which the law works, in particular in domestic homicide cases. The noble and learned Lord, Lord Lloyd of Berwick, asked for an explanation of why the review is as limited as it is and it is incumbent on me to answer that. Your Lordships will remember that when we first looked at domestic homicide, there were huge difficulties; for example, concerns that it may be too easy for a jealous partner to use the partial defence of provocation to escape a murder conviction through blaming the victim’s alleged infidelity. Unfaithfulness should not be an excuse for murder.

We therefore asked the Law Commission to look at partial defences. In its 2003 report on partial defences, it concluded that the law of murder was in a mess. In response, the then Home Secretary invited the Law Commission to undertake the first part of a wide-ranging two-stage review of the law of homicide. The Law Commission’s report is the conclusion of the first part of that process. The Government are very grateful to the Law Commission for its work in producing the detailed and considered report on proposals for reform.

We are particularly pleased that the commission has consulted so widely in drawing up these proposals. It has drawn together views from a wide range of interested parties, and we will seek to build on this work in the next stages of the review, which will now be taken forward by the Home Office. When my noble and learned friend Lord Morris of Aberavon questioned the commission’s comment about judges not welcoming a single offence, I believe that it may be referring to the judges of today who may have expressed that view. In doing this work, we must ensure that any reform leaves us with practical laws that provide justice for victims, properly punish offenders and command confidence from the public.

Clearly, many difficult issues arise in looking at the law of murder which raise complex moral and legal questions. But the review of homicide must not become a political battleground. We all come to this with a desire to get the law right. So today’s debate is a very welcome opportunity for me to explain the Government’s reasons for reviewing the law and why we have set the parameters for the review that we have.

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In particular, I turn to the direct question that was asked to me by the noble and learned Lord, Lord Lloyd. The Law Commission has identified problems with the law of murder and potential solutions to them. We need to be able to take these forward without the risk of being sent off track by other issues. The other issues that we have discussed are weighty, involving moral and legal minefields, but the key problems with the existing law lie elsewhere. I know that there are many who would want us to go into that contentious area, including the mandatory life penalty for murder, euthanasia, suicide and abortion. But we believe that the difficulties of law are such that we should concentrate on those.

The Government believe that the mandatory life penalty for murder is an essential part of giving the public confidence in the criminal justice system, and the life sentence is of course a very important part of that. The Government are of the view that the mandatory life penalty should not be abolished. I recognise that that view is not universally held and, indeed, not a view that was expressed by any noble Lord in this debate. But we are proposing an important change and I am particularly grateful to the noble and learned Lord, Lord Hope, for his exposition of Scottish law and the helpful contribution that that may make.

The noble and learned Lord, Lord Lloyd, will of course recall that Parliament very recently had the opportunity to consider whether the mandatory life penalty for murder should be abolished when he tabled an amendment to that effect during the passage of the Criminal Justice Act 2003. This House then supported the retention of the mandatory penalty. It also supported the introduction of the principles for tariff setting for murder which were introduced to ensure confidence in the criminal justice system and consistency of sentencing. Therefore, what the noble and learned Lord, Lord Woolf, said was right. It reminded us of what came out of that Act by virtue of the guidelines that can be set by the Sentencing Guidelines Council. Given Parliament’s recent support for the retention of the mandatory penalty and the principles for tariff setting, it was only sensible that the review of murder should take that reality into account.

Furthermore, and equally important, I do not believe that the review of the law of murder has been unduly restricted by the terms of reference that were set for the Law Commission. Indeed, it disagreed with those who said that its proposals for a new structure would have been different had it been reviewing the mandatory penalty. For that reason, I cannot accept the proposition that the root of the problems with the law of murder is the mandatory life penalty.

One key problem that the Law Commission identified with the present law is the mismatch between a general view of what murder means and the legal definition. This means that juries may convict killers of manslaughter rather than murder where there was no intention to kill the victim, only an intention to do serious harm, which is of course a sufficient intent for a murder conviction. That must be partly because the label of murder does not seem appropriate in all the circumstances, many of which we have discussed today.

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Lord Maclennan of Rogart: My Lords, before the Minister entirely leaves the issue of the mandatory life sentence, will she indicate whether the Government are prepared at this stage—when embarking on the second phase of their review of murder—to consider an in-depth analysis of public opinion? The Minister says that that has motivated Parliament in the past to adhere to the continuance of the mandatory life sentence. I am bearing in mind that lay people often consider that the trouble is that a “life sentence” is perceived not to be “life”. That is partly why our debate is so contrived and confined. Does the Minister agree that a real, in-depth understanding of the public’s feelings about the appropriateness of the sentence fitting the crime would not necessarily lead to an asseveration of the view that Parliament reiterated?

Baroness Scotland of Asthal: My Lords, the second part of the review will continue to look at the issues raised by the Law Commission. No set provision has been made on what further consultation may take place or its nature. We believe that we need to concentrate on trying to find a legal solution to some of the clearly identified problems, which have been with us for a long time.

I know, too, of another suggestion raised in the work undertaken by Sir Louis Blom-Cooper and others: that we should have a single offence. We have had to look at that option, and it is accepted that some solutions to the problem with the law, such as creating a single offence for homicide, would necessitate the abolition of the mandatory penalty. It is true, of course, that by not reviewing the mandatory penalty that option was ruled out.

However, while that was outside the scope of the review, the Law Commission nevertheless considered it. We agree with it that while such a proposal offers some advantages, the label of murder is so significant in our society that we should neither abandon it altogether, nor apply it to all forms of homicide. For that reason, and the other compelling ones set out by the Law Commission, we are not minded to support a single offence of homicide. I stress that the second part of the review is yet to be completed.

Having accepted that we need more than one offence of homicide, the solutions we find for the problems with the law will be more complicated than simply abolishing the mandatory penalty. As a point of principle, we believe it is right that the most serious form of homicide retains that penalty.

We have looked at partial defences, and it has been suggested that we should change them. They allow juries to decide whether the behaviour of the offender is in some way mitigated, so that the full force of a murder conviction is not imposed on the offender. I am glad that there has been no suggestion in this debate to abolish entirely those partial defences, because it is recognised that they provide us with an important way in which to differentiate levels of culpability.

We do not accept that the review of the law has been restricted in a way that would prevent the problems that need to be addressed being addressed. That is demonstrated by the Law Commission’s report, which

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offers many interesting ideas for improving the law. It is also useful to consider how the Law Commission’s proposed new structure would affect some of the hard cases which raise the most difficult questions about the appropriateness of mandatory life sentences.

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