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Coroners and Justice Bill

Committee (4th Day) (Continued)

4.43 pm

Amendment 150

Moved by Lord Carlile of Berriew

150: Before Clause 42, insert the following new Clause-

"Reform of the law of murder

Reform of the law of murder

(1) A defendant ("D") who kills or is party to the killing of another is to be regarded as guilty of murder where D intended to cause serious injury to another person or persons and was aware that there was a serious risk that another person might die as a result of D's conduct.

(2) A defendant ("D") who kills or is party to the killing of another is to be regarded as not guilty of murder, but liable instead to be convicted of manslaughter, if D was unaware that his conduct involved a serious risk that another person might die as a result of that conduct."

Lord Carlile of Berriew: The amendment stands in the name of my noble friend Lord Thomas of Gresford. I hope that the Committee will grant me the indulgence of allowing me to be his, albeit inadequate, substitute. Rumour has it that my noble friend is in South Africa trying to persuade lions to roar three or four points louder than in the past couple of weeks. When I was a foal in a barrister's stable in which my senior colleagues were, as they now are, my noble friends Lord Thomas of Gresford and Lord Hooson, I was taught that if someone else gives one a good point on a plate, one should move fast and make it one's own. That is what I seek to do in moving this probing amendment.

The background to the amendment lies in the successive pusillanimity of Governments of every possible persuasion. I hearken back to the old Criminal Law Revision Committee, which I suspect was possibly in place before anyone in this House was practising at the Bar. The noble and learned Lord, Lord Lloyd of Berwick, has just made a signal confession, so he will remember it well-I tempted him. For a couple of generations and more, Governments have not had the courage to remove the mandatory life sentence. We are now going to embark on a series of debates on Part 2 of the Bill concerning complications of the law designed to avoid removing the mandatory life sentence, but these are an obstacle course set up against the merits of something that could be much simpler. I say to the Government at the outset that it is high time that we no longer had the mandatory life sentence and that we had something along the lines of this probing amendment-I had hoped that we would receive it from the Government who, to their credit, introduced the Human Rights Act-which is founded on the Law Commission's report entitled Murder, Manslaughter and Infanticide of 28 November 2006.

I fear that the failure to remove the life sentence is either a lesson learnt from, or possibly a denial of, the old Burkean adage that a parliamentarian should be a pillar of what is right and not merely a weathercock of public opinion, although I am unsure as to what public opinion really now is on the mandatory life sentence. I think that if we were to ask the public a

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series of intelligent and intelligible questions about the mandatory life sentence, we might find that they took a different view from some of the popular papers. My real fear is that the Government may have gone below the superficiality which is usually exercised by Governments and discovered what happened to Burke when he said that in a celebrated by-election in the West Country, which history reveals he unfortunately lost.

This probing amendment provides that a person shall be guilty of murder if they intended to cause serious injury to another person and were aware that their actions could result in the death of another person. Proposed new subsection (2) provides that a person shall be convicted of manslaughter if he was unaware that there was a serious risk that his actions could result in the death of another person. This is very close to the Law Commission's recommendation in 2006. It recommended the adoption of a three-tier structure of general homicide offences to replace the current two-tier structure of murder and manslaughter.

There was considerable debate on the consultation paper issued by the Law Commission prior to its full recommendations, and there was a great deal of support for its proposal from, for example, the resident judges of the Central Criminal Court. It is worth emphasising that the daily, although not exclusive, diet of Central Criminal Court judges, High Court judges and senior circuit judges-every man and woman among them-is murder cases. They try more murder cases than possibly all the other courts in the country added together. The proposal also had the support of the criminal sub-committee of the Council of Her Majesty's Circuit Judges, importantly Victims' Voice, JUSTICE, the Crown Prosecution Service, which saw the proposal as entirely practicable, the Criminal Bar Association, the Law Society and even those radicals, the criminal law teachers at the LSE.

There were groups opposed to the provisional proposal-among them, the Higher Court Judges' Homicide Working Party, which thought that the restriction in the consultation paper of the Law Commission made the definition of first degree murder too narrow, and that objection is reflected in the amendment. The Higher Court Judges' Homicide Working Party thought that first degree murder should be extended beyond cases of intentional killing to cover homicides in which the offender acted on an intention to do serious injury and was recklessly indifferent as to causing death. It was the virtually unanimous view that people should not be convicted of murder, at least without a distinction between first and second degree, if they either did not intend to cause serious injury or were not recklessly indifferent as to causing death.

The present law causes real difficulties. Judges are faced with verdicts of juries which have said "guilty" to murder, leaving the judge to decide whether there was an intention to kill or an intention to cause grievous bodily harm. The proposals in the amendment would enable a jury to make the choice by grading the offence at the appropriate level. Judges now have immense experience of sentencing in homicide cases. In reality, we have a rather artificial sentencing position

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now. Judges do not like telling lies forced on them by statute. We now have a situation in which a judge is forced to pass a life sentence because it is mandatory. Having passed the life sentence, the judge then indulges in a completely different exercise in which he or she in effect says, "This is not really a life sentence. I am now going to impose a tariff". The amendment would bring the law into a consistent position with practice and would also bring the public, in the form of juries, into the decision-making process by which the jury would qualify the act complained of and committed by the defendant.

It is therefore my suggestion that this kind of improvement of the law would make a significant step forward. It would mean that those who watch homicide trials-particularly the media, since they are inclined to be so critical of what happens in court-would see that homicide cases were being dealt with in a realistic, common-sense and logical way. There would no longer be a large gap in the degree of culpability involved, as between the alternative fault elements in the current offence of murder. I was also taught in that stable that one of the virtues of cogency is brevity; so I beg to move.

Lord Lloyd of Berwick: I will address Amendment 150, which has been taken over by the noble Lord. I was, indeed, a member of the Law Revision Committee all those years ago under the chairmanship of a judge of the Court of Appeal, whose name I cannot now remember, unfortunately. I briefly served as chairman of the Law Revision Committee, but as soon as I became chairman, the committee never sat again.

The noble Lord has done a good service by moving this amendment, because it shows how strange it is that we should be considering the partial defences to a charge of murder before we have determined what murder is or should be. It is all the stranger since the Government consulted the Law Commission as long ago as 2002 on the question of partial defences, received a report in 2004, and have done nothing about it since, until today. Why now?

In his letter of 18 May, the noble Lord, Lord Bach, was kind enough to say that there were a number of stakeholders, among whom I would include myself, although I can never quite imagine myself as a stakeholder. I am not sure what my stake would look like. He concedes that there are a number who would prefer the Government to look at the current Law Commission proposals as a whole, and not in parts. I say amen to that. The Minister said that a number of other stakeholders took a different view. I cannot help wondering who those other stakeholders are and, more importantly, what their reasons are. Perhaps we might be told.

Perhaps we can also be told the real reasons why the Government have still done nothing about the first 64 pages of the current Law Commission report, published in 2006, which set out its proposals for the new structure. It is the structure that we should be talking about today, not the partial defences. The Government have done nothing about the structure in the past two and a half years. Is the real reason simply that they cannot make up their minds? They say that they want to proceed step by step. That is all very well,

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provided that you take the steps in the right order. Here, they are taking step 2 before step 1, which usually ends in disaster.

Having said that, I shall now turn to the amendment. I was not sure whether the noble Lord was confining himself to the terms of this amendment, or anticipating the terms of mine. I admire the drafter of the amendment, the noble Lord, Lord Thomas, for his courage in defining the law of murder in two short paragraphs. However, I cannot support his amendment, for the following reasons. Subsection (1) of the proposed new clause corresponds to the Law Commission's definition of first degree murder, except that it leaves out the defendant who intends to kill. Intentional killers are surely the most serious of all. They should be expressly included in any definition, and certainly not left to be inferred. Subsection (2) is also unsatisfactory as it would exclude from murder the most common case in practice-the defendant who intends to cause serious injury or harm, but who is unaware that he might be likely to cause death. It would also exclude the defendant who intends to cause some harm but not serious harm, but who is aware that his act might cause death.

They should be included in any definition of murder, as recommended by the Law Commission. They are too serious to be treated as manslaughter. At any rate, they should not be excluded from murder, as the amendment proposes, without very prolonged consideration which we cannot give it now. With great respect, I hope that the noble Lord will not press his noble friend's amendment.

Lord Kingsland: I share the views expressed by the noble and learned Lord about the legislative exercise in which the Government are currently engaged. We are, in effect, being asked to consider the partial defences in a vacuum. Until we know what they will be measured against-what the Government will say about the component parts of the crime of murder-we are not in a position to reach any conclusions about the merits of the measures that are contained in the Bill.

On the amendment tabled by the noble Lord, Lord Thomas of Gresford, so ably presented this afternoon by the noble Lord, Lord Carlile of Berriew, I respectfully share the concerns expressed by the noble and learned Lord, Lord Lloyd of Berwick, on the absence of intention to kill in the definition of the offence. Without that, the amendment is plainly incomplete. I hope that the noble Lord, Lord Carlile of Berriew, will consider the matter between now and Report.

5 pm

Baroness Murphy: I admit to having had an interest in the law on homicide ever since serving as a psychiatrist on Lord Lane's committee back in 1993 to consider the penalty for homicide. That report, like many others, recommended the abolition of the mandatory life sentence. It was binned immediately by the then Home Secretary, Michael Howard.

As the noble Lord, Lord Carlile of Berriew, said, the law is in urgent need of reform, if only to prevent what I as a psychiatrist might call the unseemly Lobster Quadrille danced in the courts by expert forensic psychiatrists who are obliged to consider these various

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partial defences and the way they are involved in the verdict, in order to prevent the mandatory life sentence being implemented.

I was a perennial optimist and had hoped that the Government would have the courage to make progress. I regret very much that the Executive appear so set against what would be by far the most sensible and important reform-the abolition of the mandatory life sentence. That militates against achieving "individualised justice", both generally and specifically in relation to mental health and many other factors relevant to proper sentencing. It is sad that the Government have failed to accept the Law Commission's recommendations this time round. Those do not go as far as we would like, but a variant would at least devolve from the Executive to the judiciary sentencing powers for a large percentage of cases. That of course is the sticking point: the power that the mandatory sentence gives to the Executive. It seems that that is just too much to be readily given up.

As I am not a lawyer, perhaps I may be permitted to offer some praise for the judiciary in the matter of appropriate sentencing. We have a system of checks and balances on sentencing that I do not believe require this executive control. We also have an excellent parole board system that enables the date of release to be reviewed at an appropriate time. After all, people are going to be released. I find it extraordinary that the Secretary of State would wish to retain the decision-making powers in this matter when a whole panoply of executive systems is available to enable the decision to be made by proper experts without political interference. The amendment is an attempt to move away from that in a way that-thinking of debates that the House has had in previous years-many of us would feel sympathetic towards.

I do not want to comment on the specific wording of the amendment, because this may not be the right one. I listened carefully to what was said by the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Kingsland. The wording of this amendment may not achieve what we want to achieve. Nevertheless, a review of the law on homicide is sadly missing from this Bill. We will be spending the rest of this evening debating matters that would be far better addressed at sentencing rather than at the point of verdict. It is a terrible shame that we have got to this point and not been able to address this major issue.

The Attorney-General (Baroness Scotland of Asthal): I commend the noble Lord, Lord Carlile of Berriew, for standing in so manfully in the place of the noble Lord, Lord Thomas of Gresford. I, too, agree with the analysis of the noble and learned Lord, Lord Lloyd, about the flaws in the amendment itself. However, I take it very much as it was put by the noble Lord, Lord Carlile-that it is a probing amendment to enable us to have this debate. It was not suggested that these amendments are necessarily correct in form, so I make no point about that at all.

We would argue very strongly that we should not make the best the enemy of the good. In responding to Amendment 150, I must acknowledge that there are those who would have wished-I count among them each participant in this debate-that we had dealt

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with the whole area of murder law comprehensively and at once. We made clear at the outset that the provisions of the Bill are the first part of a staged approach. We will be looking at the Law Commission's other recommendations, especially those on a new structure of homicide comprising new offences of first degree murder, second degree murder and manslaughter, in the light of the effect of the changes to the partial defences proposed in Clauses 42 to 46.

The noble and learned Lord, Lord Lloyd, said that we should have dealt with the structure first and the partial defences second, but noble Lords who have spoken know as well as I that these provisions have caused real interest and contention over a number of years. Many jurists have scratched their heads, debated, disagreed and made contributions, and it was clear that there was no unanimity of view about whether those proposals were definitively the best that could be devised. The issue is therefore whether we should do nothing or whether we should try to grapple with those things where there seemed to be some consensus and where there is an opportunity to do a bit of good and to take a step or two further along this road. The Government decided that we should try to deal with some of the issues that have caused difficulty.

Lord Clinton-Davis: When does my noble and learned friend envisage that she will come forward with an appropriate solution to this problem?

Baroness Scotland of Asthal: We have to acknowledge that there is only so much time left in the current Parliament. I put it baldly: is there time for this Bill and for a Bill to deal with homicide? Everyone in this Committee who has grappled with this issue would acknowledge that dealing with homicide as a whole would take some considerable time and a great deal of care because we would have to get it absolutely right. Therefore, there is a question about how much can be undertaken. I cannot give the noble Lord the precise timing because I am in the happy position of not being one of the usual channels, not setting the parliamentary timetable and not being able to say when that should happen. However, it has been clear from the energy and commitment that has been shown not only by the Law Commission but by many others whom we have consulted that this issue has remained firmly on our agenda. It has never been taken off the boil or neglected. We have continued to discuss it, debate it, hone it and define it to try to make things better. I agree with those who say that the present law presents real difficulties and that we need to look at those things that we can change. That is what we are seeking to do in moving the agenda forward in relation to the partial defences.

I have to say to noble Lords that there was a great deal of support for changing the way in which we deal with partial defences. There was therefore a realistic assessment that we could do some good work in that area, and perhaps only in that area, in trying to make a difference. That is what we now propose to do. It is critical that we get this area of law right. The noble Lord, Lord Carlile, referred to what the weathercock of public opinion would say in relation to mandatory life sentences. I know that some people may not wish

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to take this on board. However, I have had the great privilege of speaking to many victims who have suffered a loss in their families as a result of murder and manslaughter. I must tell noble Lords that it is a matter of great importance to them that there is a mandatory life sentence. It is something that we must grapple with, because it is their reality that they live with every day. That is something that we must face when we speak to them about why the person who is responsible for killing the person they loved will not get a whole-life tariff and will not stay in prison for the whole of their life, but will be allowed to go free. The weathercock of public opinion is very interesting.

Baroness Knight of Collingtree: Does the noble and learned Baroness recall the time when Parliament abolished the death penalty? One of the strongest points made when that law was passed was that Parliament did not mean by its action that it was taking murder as a light matter. It was suggested very strongly that the present system would be in place to make absolutely sure that those who murdered faced a punishment.

Baroness Scotland of Asthal: The noble Baroness is absolutely right. That is why I say that this is delicate and difficult. It is not easy to address it, because we want to keep confidence, but also to do what is proportionate and right for the victim while accepting the varying positions of those who offend. It is not easy.

I absolutely understand what everyone has said about a comprehensive law, and that it is better to do it all together and have a structure. However, I invite the Committee to accept that this is a pragmatic, appropriate step forward in the right direction and ask the noble Lord, Lord Carlile of Berriew, to withdraw the amendment. I understand why it was tabled and why it was important at the start of the debate for us to have an opportunity to explore the issues.

Lord Carlile of Berriew: I am very grateful to all those who have taken part in this interesting debate, and particularly to the noble and learned Baroness the Attorney-General for her very considered response. With regard to the criticism of the text of the amendment-I emphasised that it was a probing amendment-I feel like an actor performing a play. If it goes well, you take the credit, and if it goes badly, you blame the author-which I shall do with enthusiasm on this occasion.

Having heard the contribution of the noble and learned Baroness the Attorney-General, I must say, with great respect, that I do not understand the staging of the approach that is being taken. If you are going to take a carefully considered staging approach, you start with the offence and define it. Having defined it, you decide how you are going to deal with it. The careful definition of the offence deals with the point made by the noble Baroness, Lady Knight-who knows that I respect very much her contributions both in this House and formerly in another place-by emphasising that an offence of murder really is an offence of murder, and that a life sentence, when a judge says, "You will

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go to prison for life", will mean that you will go to prison for life for committing one of the most serious offences.

How long will we have to wait for all the stages of this approach? I recall-other noble Lords will, too-that in another place, something like 20 years ago, the then home affairs spokesman of the Labour Party in opposition, no less a person than Tony Blair, advocated very strongly the abolition of the mandatory life sentence. But today the noble and learned Baroness is giving us an assurance-a very welcome and genuine assurance-that we are still somewhere along a very long obstacle course with no indication when we shall reach the end and be able to consider the whole of this issue fully.

I do not believe that I have heard in this debate any empirical justification for why we do not start with a process that is staged in the way that we have described. I have heard no empirical justification for avoiding clarity of definition of the offence of murder. I have heard no empirical justification for why we do not abolish the mandatory life sentence. However, with the intent to return to the issue in due course, I beg leave to withdraw the amendment.

Amendment 150 withdrawn.

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