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I do not believe that it is the Government’s aim to prevent serious public discussion of issues relating to suicide and proposing, if necessary, a change in the

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law. The Government’s intention, quite rightly, is to stop the repulsive practice of people using their websites to encourage teenagers and young adults to commit suicide. I understand that. However, it seems to be all too possible to interpret Clause 49 as extending well beyond that. For example, the moving BBC television programme that dramatised the journey of Dr Anne Turner to Zurich, with the assistance of her children, to enable her to commit suicide could well be viewed as encouraging others to follow the same path. Indeed, the noble Baroness, Lady Finlay, indicated that that has happened in at least one case. Nevertheless, such programmes should, in my view, unquestionably be legitimate. We cannot insist on silence on such important issues. Clause 49 should be modified to ensure that it extends only to the unacceptable behaviour that appears on some websites and had tragic effect in Bridgend.

I agree with the noble and learned Lord, Lord Falconer, that the Bill is not the right occasion for debating a full-scale change to the law of assisted suicide. That would need separate legislation. I also agree with him that we should debate changes to the law concerning travel abroad to countries where assisted suicide may be legal. I will not go into that in more detail, because I am sure that it will come up later.

The third issue has not been touched on at all so far in the debate, and that is the problem of indeterminate sentences. They were introduced by the Criminal Justice Act 2003 and subsequently modified by the Criminal Justice and Immigration Act 2008. Indeterminate sentences may be given for specified offences involving violence. When someone is convicted of such an offence, the judge may be expected to impose an indeterminate sentence. This overrides the upper limit of sentence provided by law and is akin to a life sentence because the prisoners do not know what their final release dates will be. At the time of the conviction, the judge imposes a minimum tariff, but to obtain release after the minimum tariff has been reached prisoners must satisfy the Parole Board that they have corrected their violent behaviour. This usually requires prisoners to attend training courses. The problem is that these courses are simply not available. The result is that prisoners remain in prison long after their tariff has expired, not because of their misbehaviour in prison, but because they have not been able to attend those courses. The consequence of this is obvious and damning.

A briefing paper by the Criminal Justice Alliance gives startling figures. As of 12 February, there were more than 5,000 prisoners serving indeterminate sentences. In fact, 1,487 of those had already passed the date of their minimum tariff, but as of 15 January—only four weeks earlier—only 47 recipients of indeterminate sentences had been released on licence. That is about 3 per cent of those eligible for release. This shows that the treatment required to obtain release is either totally ineffective, hopelessly underfunded or both. Indeterminate sentences met devastating criticism earlier this year in a report by the Chief Inspector of Prisons and the Chief Inspector of the National Probation Service. A higher degree of violence or a bad previous record rightly lead to longer sentences and always have done.

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The introduction of indeterminate sentences may have been well meant, but it has been not only a failure but an extremely expensive failure. The scheme should go.

Finally, I strongly support the speeches of the noble Baroness, Lady D’Souza, and others on the proposal that non-residents who are present in the United Kingdom should be liable for genocide and other serious crimes under international law whenever committed. That seems to have the almost complete support of Members of your Lordships’ House.

7.30 pm

Lord Craig of Radley: My Lords, I should like to draw attention to two issues which the Bill should deal with better. Both relate to Armed Forces personnel who have lost their lives while serving overseas and whose bodies have been repatriated to the United Kingdom, where an inquest into the cause of death must be held. The noble Baroness, Lady Fookes, has spoken forcefully on the first issue, and I underline and add to the points that she made.

The House is aware of the significant number of such service deaths—now well over 300 in the past six years—mainly on operations in connection with our deployments in the Middle East and Afghanistan. Most bodies have been flown into either RAF Brize Norton in Oxfordshire or RAF Lyneham in Wiltshire. The coronal resources available in Oxfordshire and Wiltshire were overwhelmed and there were long delays in holding inquests. The untold anguish, frustration and anger that this provoked in the deceased’s next of kin and their supporters is also well known. Belatedly, the Government provided more to strengthen local arrangements, and the backlog of cases has been much reduced. However, arrangements for accommodating and helping the deceased’s next of kin or other relatives attending these inquests are still unsatisfactory.

One beneficial outcome of concentrating inquests so geographically has been that the expertise of the Oxfordshire and Wiltshire coroners in dealing with the tragedies of operational deaths has been built up and is now highly respected. We will, I fear, see our Armed Forces involved in warlike operations for some years ahead, and the risk of further service deaths remains high. Tragically, six more have died in the past 10 days.

In their Command Paper 7424, the Government undertook to treat fairly all those in the Armed Forces, their families, and veterans, because of the special nature of their duties and commitment. Surely there must be special legislative arrangements for military inquests. We have learnt the hard way how to do it, and we must ensure that this lesson is not forgotten. Responsibility must be laid on the Chief Coroner to ensure that there is and will continue to be a special military coronal group or team that takes from what we have learnt and keeps the expertise alive and updated in the years ahead. It would not accord with the Government’s commitment to do their best for the Armed Forces and their families to ignore the need for a specialist coronal centre of excellence to deal with the repatriated bodies of Armed Forces personnel. It is a real live issue now and should not be treated as some transitory problem for which primary legislation is not needed.

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A further aspect of these inquests is that too often the MoD is represented by counsel, while families have no automatic recourse to legal aid. Government counsel, the costs of which now run into millions of pounds, are said to be present to assist the coroner. An inquest is not an adversarial court, so it is asserted there is no need for the deceased’s next of kin or family to be legally represented. Provision is said to be available in special cases to consider an application for legal aid, but it is complex and unhelpful. The noble Lord, Lord Thomas of Gresford, outlined a special example of this. Extra costs on the legal aid budget are also prayed in aid of refusal, which is offensive to the bereaved and does not chime in any way with the undertaking to deal fairly with the families of service personnel. This was a specific cross-government undertaking, so it is as much a duty for the Ministry of Justice, the devolved Administrations and the Ministry of Defence not to cavil over the cost of making such provision.

Indeed, now that the military inquest coroners have built up their expertise, perhaps the MoD should no longer have to field counsel at these hearings to assist the coroner: otherwise, it might be for the coroner who will preside at the inquest to authorise legal aid for the deceased representatives, if requested, whenever the MoD is represented by counsel. If the Government are still not prepared to assist relatives with legal aid, surely they must restrict the MoD’s reliance on the use of such counsel.

Noble Lords will have seen that Clauses 14 and 15 deal with the death of service personnel abroad but are limited to covering arrangements for investigations in Scotland and investigations in England and Wales despite the body being brought to Scotland. Although I do not question the need for special arrangements to deal legislatively with the application of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act, will the Minister give examples of why the Secretary of State would, as Clause 14 states, think it,

It is not clear to me whether this is a specific issue or just a catch-all phrase to cover any unforeseen eventuality.

I have one further important point to make about Clause 14. Subsection (2) refers to a person as being engaged in “active service” or in,

Clause 14 goes on to state, in subsection (6), that,

Section 8(3) of the Armed Forces Act states:

“In this section ‘active service’ means service in ... an action or operation against an enemy ... an operation outside the British Islands for the protection of life or property; or ... the military occupation of a foreign country or territory”.

However, the whole section is about just one offence: desertion. Is it not just plain wrong and abhorrent to rely on a section about desertion when considering those who were tragically killed on operations while on duty? A better formulation must be found. Moreover, active service, as defined, is not wide enough. It does

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not cater for a defence attaché who is murdered in a friendly country, the sudden untimely death of service personnel who are mentoring friendly forces and are not engaged in conflict, or anyone in the Armed Forces who is unlucky enough to come to a violent end because of an accident or incident overseas, on land, at sea or in the air and far from any combat or operational training area. When the bodies are repatriated and an inquiry is held in Scotland, all next of kin and families deserve the same fair treatment that is promised to the Armed Forces in the command paper, The Nations Commitment. Why should Clause 14 be limited to those who have died when on operational duty?

To conclude, the Bill must provide for continuing coronal expertise—a coroner's centre of excellence—in the hearing of military inquests. It must ensure fairer treatment for the deceased’s relatives by giving them aid to be represented legally at those inquests where it is evident that the MoD will be fielding counsel. Clauses 14 and 15 should cover inquests for any service person who meets an untimely end overseas and for others who are subject to service law at the time of their death, not just for those killed on operations. The active service definition used in the Bill is inadequate and offensive. Do the Government recognise these weaknesses in the Bill? Will they table appropriate amendments to be considered in Committee?

7.39 pm

Lord Elystan-Morgan: My Lords, about a year or so ago when we were involved with the Criminal Justice and Immigration Bill, I made the rather irreverent suggestion that, as an obverse to the Bill of Rights of 1689, we might consider that Parliament be limited to no more than one criminal justice Bill a year. Little did I know then that we would be involved with legislation dealing with the anonymity of witnesses within a matter of months only, and that indeed we have this Bill now, which is one of the most compendious of Bills in relation to miscellaneous provisions of the criminal law.

I speak with some feeling as a former circuit judge. Time and again one was confronted with a brand new labyrinth that somehow or another the innocent judge would have to find his way through, even without the mythical ball of twine. Having thought that one had somehow or another managed to find a way through it, it was only to discover that Parliament was already discussing the next labyrinth that would be placed before the humble judge.

I would like to confine my remarks to Part 4, which deals with sentencing. I do so in the knowledge that many people who are concerned with the administration of the criminal law feel deep disquiet with regard to the attitude taken by the Government in relation to sentencing reform. I appreciate that many people at all levels feel that there are grave dangers in what is proposed in that part of the Bill. I appreciate that a great deal can be argued in favour of change in relation to sentencing but I doubt very much whether the Government have hit upon the right approach in this case. I share the fears of those people and feel that, despite the arguments that are advanced by Government and indeed the solid basis for their policies laid down

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in the excellent report of Lord Justice Gage and his working party, nevertheless there are very considerable dangers and complexities.

I invite the House for a moment to consider these matters. My submission is that in the first place the Government are involving themselves in a very revolutionary development in so far as it seeks to curb the discretion that sentencing judges have in passing sentence. Often one is told that the law has been changed and that judges are now constrained by changes in the law. I do not think that happens when you make a sentence a subject of either maxima or minima. All you are doing is moving the area within which the judge exercises discretion. Whenever you deal with discretion per se, you are treading on a path that is extremely dangerous and could ultimately lead to tyranny. I do not suggest that that is brought about by Part 4 but it could lead in that direction.

The situation up to now has been that the Court of Appeal has given guidelines from time to time, the advisory body from 1998 has given guidelines, and the Sentencing Guidelines Council under the 2003 Act has given guidelines. There have been ample guidelines. They have, however, been guidelines and no more. The relevant section of the 2003 Act—Section 172—says that the sentencer shall have regard to the sentencing guidelines in relation to the offender’s case. He is fully entitled to depart from them, although the sentencer has the duty then of spelling out why and that becomes a matter of record. Under Clause 111 of the Bill, however, something entirely different occurs. The sentencer there is obliged under the wording of that clause to follow—not to have regard, but to follow—and that situation is entirely different. To my mind, it creates a mandatory situation where there is that obligation, in the first instance at any rate, upon the sentencer to follow the guidelines. It is true that there is an escape clause which entitles the sentencer to have regard to the interests of justice and to justify not following the guidelines in a proper case. That means, however, that the onus in the first instance is upon the sentencer to act within that peremptory order in Clause 111.

One does not know how this will be interpreted by the Court of Appeal in years to come if this provision becomes law. In the case of R v Salina Martin, a case determined by the Court of Appeal in 2007, it said simply that guidelines are guidelines—no more, no less. In other words, this was a liberal interpretation that does not affect the sovereign authority vested in the sentencer ultimately to determine sentence. This has created a whole new situation. I suggest that it was wholly unnecessary. The Sentencing Guidelines Council was working well; the Secretary of State for Justice at Second Reading in the other place went out of his way to praise its efforts and achievements. It had only been in existence for a few years and was now bedding down. There was ultimately no reason at all for having it extinguished and recast in the way that Part 4 brings about.

By acting in that way, the provision creates a situation where there is a flouting of Parliament and a voiding of the processes of Parliament for this reason. If the situation brought about by Part 4 creates a mandatory responsibility on the judge—I believe it does in the

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first instance—it means that the Sentencing Council can from time to time, provided it has made the proper consultations set out in Part 4, make new law. That is a law, however, that will never be scrutinised by Parliament.

It is ironic that Lord Justice Gage’s working party—I have the highest admiration for those persons and for the work they did—ultimately decided to reject what is called the “Minnesota and North Carolina rigidity of sentencing” system and opted for the New Zealand system. The wording of Clause 111 is directly lifted from the Sentencing Act 2002 of New Zealand. In New Zealand, however, those changes have to go before the legislature. I cannot remember whether it is by way of a negative or positive provision; it does not make a great difference.

The noble Baroness, Lady Stern, made an excellent point when she quoted the Secretary of State for Justice as saying that these proposals had nothing at all to do with prison population. Well, I could well have been fooled. If one looks at the excellent report of Lord Justice Gage’s working party, the first paragraph of the introduction deals with nothing but prison population. Therefore Lord Justice Gage and his colleagues must have regarded this as the most important consideration. Did that august body fool itself or was the situation clear from the very start that all this was brought about in the shadow, as it were, of the problem of prison population?

I make this suggestion. In Britain we incarcerate more people per 100,000 than any other country in western Europe, with the sole exception of Luxembourg. We have never examined the position in detail and, unless and until we do that, we should not seek to act piecemeal. There may be dozens of reasons. Many are suggested without any specific findings by Lord Justice Gage’s working party. We should, however, go deeply into the whole question of why it is that this happens. Are the people of England and Wales more evil or more disposed to crime than those of other countries? Is it because we have so many statutes that carry a sanction of imprisonment? Is it for some other reason or perhaps for many other reasons? That would be the beginning of wisdom. We should therefore not take any drastic action such as we have in Part 4 unless or until that is done.

7.49 pm

Lord Taverne: My Lords, I shall make a brief comment on the section of the Bill that deals with assisted suicide. Our law is in a mess. It needs urgent clarification and I hope that it will be amended at a later stage. Why is reform urgent? It is because when people commit what the law says is a serious crime, the Director of Public Prosecutions will not prosecute. As we have now learnt, he has not done so in something like 100 cases, which is an extraordinary situation. The urgency is underlined by an important report that appeared in the Times last week stating that more and more desperate people are asking nurses how they can help to get them to Switzerland. They are asking urgently for a code of conduct.

In the past, the injustice or absurdity of a law has often forced change because juries would refuse to convict. When the offence was stealing and anything

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worth more than five shillings was a hanging offence, juries had to make two findings; namely, did the accused steal and what was the stolen object worth? If an accused stole, say, £10, the jury would often find that, “Yes, he was guilty of theft, but the £10 stolen was worth four shillings”. In due course the law was changed. In earlier times one could also escape the gallows by claiming benefit of clergy. An accused could claim to be a clergyman if he could read the 51st psalm. Those who were illiterate would learn it off by heart. After 1547, the privilege of claiming benefit of clergy was sometimes extended to Peers of the realm. But that law also fell into disrepute.

The position we have now reached is no less absurd. The Director of Public Prosecutions does not believe a prosecution for assisting suicide in Switzerland would result in a conviction, which is not surprising. Every opinion poll shows support of more than 80 per cent for legalising suicide, which includes Catholics and Protestants as much as non-believers. Church leaders—I am sorry that none are present—are completely out of touch with their congregation on this issue. This popular support is not based on ignorance or a temporary fashion. It has been consistent over a long period and is based on the personal experience of miserable deaths of relatives and friends.

Recently, the former Director of Public Prosecutions, Sir Ken Macdonald, said on Radio 4:

“I think we have reached the stage ... where prosecutors are effectively deciding that in an entire category of case they’re not going to apply the public interest in favour of a prosecution. That opens up the question as to whether the law is still appropriately framed and I think it is an indication that we may have moved, society may have moved, beyond the law and that the law needs to catch up a bit”.

In the same programme, the noble and learned Lord, Lord Bingham, made a statement which has already been quoted. He said that,

The noble and learned Lord’s remedy for this flaw is very humane and completely in line with public opinion and actual practice. He said:

“I think the best possible situation is where you've got a general practitioner, knows the family, knows the family's wishes, knows the patient, appreciates the extent to which the patient is in pain and gently ups the dose of painkiller to a point where it is in fact lethal”,

which happens all the time.

Let me remind your Lordships of the present law. To withdraw life support, to turn off a ventilator or to switch off a life support machine—a positive act that directly causes death—is not a crime. To provide a lethal drug that leaves it to the patient to decide whether or not to use it is a crime, with a penalty of a possible 15 years’ imprisonment. To increase a dose of painkillers gradually until it proves lethal, as the noble and learned Lord, Lord Bingham, suggests, is not a crime. To administer sufficient painkillers in one dose that proves lethal is a crime, punishable by 14 years’ imprisonment. To help someone commit suicide in Switzerland is not a crime for which you will be prosecuted. To assist suicide in Britain, where those who are forced to go to Switzerland would much prefer to die, is a crime for which you will be prosecuted and is subject to a penalty of 14 years’ imprisonment.

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Only the most consummate casuist can support the law as it stands. It is not sustainable logically and, much more important, morally. In the words of Bumble the Beadle:

“The law is a ass”.

The least we can do is clear up the terrifying uncertainty for those—there are more and more of them—whose relatives desperately want to go to Switzerland for relief.

7.55 pm

Lord Moran: My Lords, I feel very strongly about the enormous importance of unrestricted freedom of speech in our country. This does not of course apply to the incitement of hatred, which I believe is already an offence, but it should apply to the protection of rational debate and discussion, and the expression of opinion on anything, including homosexual practices. Last year, I voted for a free speech clause in the Criminal Justice and Immigration Act 2008, which was put forward by the noble Lord, Lord Waddington. I was concerned about reports that people who expressed their deeply held religious convictions on homosexuality had been harassed by overzealous police officers who sometimes threatened them with jail for what was described as homophobia.

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