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150A: Before Clause 42, insert the following new Clause-
"Murder: extenuating circumstances
(1) In a trial for murder the trial judge may in the course of his summing up direct the jury that if they are satisfied that the defendant is guilty of murder, but are of the opinion that there were extenuating circumstances, they may on returning their verdict add a rider to that effect.
(2) The judge may not give such a direction unless there is evidence on which a reasonable jury might so find.
(3) Where the jury has so found, the judge shall not be obliged to pass a sentence of life imprisonment but may pass such other sentence as he considers appropriate having regard to any extenuating circumstances found by the jury.
(4) If it appears to the Attorney General that the sentence so passed is unduly lenient he may refer it to the Court of Appeal under section 36 of the Criminal Justice Act 1988 (c. 33) (reviews of sentencing)."
Lord Lloyd of Berwick: Perhaps I should make it clear that unlike the previous amendment, this is not just probing in nature. It seeks to enable a jury to bring in a verdict of murder with the rider that in the jury's view, there were extenuating circumstances. The effect of that rider would mean that the judge would not be obliged to pass a sentence of life imprisonment, but could pass such other sentence as would be appropriate in the circumstances found by the jury. Perhaps I may start by listing some of the advantages that would flow if the amendment were to find favour with the Committee. I shall then mention the safeguards that have been built into the amendment, and finally, give the reasons for believing that the amendment would work in practice.
What are the advantages? I shall limit myself to mentioning only four, but I suspect that there are many others; indeed I know that there are others. In the first place and most obviously, it would provide an answer to the case of the mercy killing. The evidence shows very little support among members of the public for imposing a life sentence of imprisonment in the case of the genuine mercy killing. That evidence is set out in the Law Commission report at paragraph 7.47 and is confirmed by the Nathan committee, which reported in 1988. Indeed, many Members of this House served on that committee. The committee members had mercy killing well in mind when they recommended the abolition of the mandatory life sentence.
Perhaps I may say a brief word about the mandatory sentence. I remain firmly of the view that it ought to be abolished because it is the one single factor that makes coherent reform of the law so difficult. But I accept that, as things are for the moment, its abolition is not a practical possibility, if only because it is opposed by both of the main political parties. They oppose it for reasons that I regard as specious, but nevertheless, there it is. So we must find a solution other than the abolition of the mandatory sentence to deal with the practical problems that arise.
I now turn from the Nathan report to the Law Commission report. The commission was hamstrung by the obligation imposed on it by the Government to regard the mandatory sentence as continuing. That did not make its task any easier. But at paragraph 7.48, the commission did express the view that a life sentence is "neither necessary nor appropriate" when dealing with the genuine mercy killer. Regrettably, however, it made no final recommendation on that point, because-regrettably again-it had failed to carry out any public consultation on that particular question. It gives that explanation in paragraph 7.30 of its report.
However, the absence of that public consultation need not matter, because I do not myself believe, and I doubt whether any Member of this House present today believes, that there could be any doubt as to the views of the public on imposing a life sentence on a genuine mercy killer when the judge goes on in the same breath to say that he may serve no more than two or three years at the most. That makes a mockery of the law.
If it be said that the life sentence is necessary for the protection of the public in such a case, I would ask: is there any known instance of a mercy killer killing twice? So what is to be done?
Later on, we were to have come to an amendment in the name of the noble Lords, Lord Joffe and Lord Goodhart, in which they had proposed that mercy killing be charged as manslaughter, and not as murder. I think that amendment has now been withdrawn, but my amendment would achieve exactly the same result in practice, but by a different-and I suggest simpler-route.
Its advantage is that it would not require a definition of mercy killing on the face of the Bill. It would leave that question to be decided in each case on the facts by the jury, which is where the decision belongs. My experience of trying many murder cases is that the
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The second advantage is that it would cater for those difficult cases, of which Clegg is the best known example, where a soldier or a policeman fires and kills in the agony of the moment. They may be technically guilty of murder, as the law now stands, but to have to sentence a man such as that to life imprisonment, when they will in practice serve only a year or two at most, again, makes a mockery of the law.
Thirdly, the amendment would cover the case of the battered wife. The Government believe that the existing law of provocation favours the husband who kills in anger, as against the wife who kills the husband after years of suffering abuse. They say that the law needs to be rebalanced in favour of the battered wife. That was the view that the noble Lord, Lord Bach, if he remembers, expressed to me in his letter of 18 May-a view with which I very largely agree.
The case of the battered wife is indeed a very deserving one, but it cannot be dealt with by rejigging the law of provocation, as we shall see when we come to Clause 44. The battered wife who makes a deliberate decision to kill her husband has not lost her self-control; nor can she be brought within it in any way by extending the existing law of diminished responsibility. On the other hand, the battered wife is just the sort of person who should be covered and would be covered by this amendment, as it would enable the jury to find extenuating circumstances.
Finally, I come to the fourth advantage. There have always been awkward cases on the edge of provocation and of diminished responsibility, like the case of Doughty. A parent who has been without sleep for nights on end because of a crying baby loses his or her temper and throws the baby on the floor, with fatal consequences. What conceivable point is served by sentencing such a person to life imprisonment? One thing is certain beyond any doubt: he or she will not do it again. The thought that other parents might be deterred is clearly absurd. Doughty is just the sort of case where a jury should be able to exercise what is sometimes called the jury equity and find extenuating circumstances.
I now turn briefly to the safeguards. The first and most obvious is that it would be up to the judge to decide whether there was evidence on which a reasonable jury might find extenuating circumstances. If there was no such evidence, he would say nothing about it in his summing up. If there was, he would say that it was for the jury, and the jury alone, to decide whether there were such circumstances. He would not give any indication, one way or the other, of his own view. There would, of course, be nothing to stop the jury from adding a rider where it had not been told about such evidence by the judge but the judge would not be bound by such a rider and would pass a sentence of life imprisonment in the ordinary way.
The second safeguard is that in any case where the judge does not pass a mandatory sentence, he would be obliged to give his reasons. Those reasons could then be looked at by the Attorney-General, and if the
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Lastly, I come to why I think the amendment would be effective. First, it is not dissimilar, although it is by no means the same as, to the old recommendation to mercy in the days of capital punishment. The Home Secretary was not obliged to accept such a recommendation, but in many cases he did. As far as I am aware, it did not cause any problem. That practice fell out of use but only because it was thought in those days to be unconstitutional for the jury to recommend mercy, which was the prerogative of the Crown rather than of anybody else.
Secondly, such a system was found to have worked well in France in the days when there were minimum sentences for a large number of grave offences. It was open to the jury in France to find "circonstances atténuantes"; in that case, the minimum sentence did not apply. Thirdly, and perhaps even more relevantly, this worked well in South Africa in the days when it had capital punishment.
Those are the reasons why I believe the amendment would work. Before sitting down, I should like to pay a very warm tribute to Professor John Spencer of Selwyn College, Cambridge. The ideas that I have put before your Lordships today were not mine in origin-I wish I could say that they had been-but his. I believe that they are a sensible and practical solution to many of the problems which will continue to arise until the mandatory sentence is finally abolished. If the idea finds favour with your Lordships, the credit belongs not to me but to Professor Spencer. I beg to move.
Lord Goodhart: I strongly support the noble and learned Lord, Lord Lloyd of Berwick, in his Amendment 150A, to which I have added my name. I have for a long time believed that a mandatory life sentence for murder was wrong. Murder covers an immense spectrum, from sadistic, multiple murders to mercy killing of a beloved spouse or partner. The sentencing should be given an equally wide spectrum.
When the Government asked the Law Commission some years ago to report on changes to the law of murder, they expressly excluded from consideration the removal of the mandatory life sentence. This was, frankly, a surrender to the tabloid press. The Government almost certainly knew that the mandatory sentence was wrong; they must have known that the Law Commission would very probably say so; therefore, they prevented any discussion of the mandatory nature of the sentence.
We were left as a result with a complex proposal by the Law Commission for new legislation about murder, creating separate first and second degrees of murder which I believe were unnecessary and which have in any event not so far been implemented-nor have the Government shown any signs of doing so.
Mandatory sentences have a seriously damaging effect. They make necessary, as the noble and learned Lord, Lord Lloyd of Berwick, pointed out, the partial defences of diminished responsibility and provocation.
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My original view was that all that was needed was to abolish the mandatory life sentence and leave sentencing to the judge. However, the amendment of the noble and learned Lord, Lord Lloyd, improves on this considerably-thanks are indeed due to the professor-by involving the jury as well as the judge. That is a crucial step. It is both correct in principle and would make the change in the law much more acceptable to the public. First, the judge would have to direct the jury that it could conclude that there were extenuating circumstances. Secondly, the jury would then have to agree that there were extenuating circumstances which justified a maximum sentence of less than life. Thirdly, there would be a possibility of appeal to the Court of Appeal against an unduly lenient sentence.
I would ask one question of the noble and learned Lord, Lord Lloyd, as a matter simply of explanation. I assume that the number of members of the jury required for finding that extenuating circumstances existed would be 10, 11 or 12, which is the same number as is required for providing a conviction or an acquittal. That means that in the case of a unanimous conviction by 12 jurors for murder, the rider finding extenuating circumstances would require 10 jurors to support it, not all 12. The noble and learned Lord will tell me whether that is correct.
The amendment of the noble and learned Lord, Lord Lloyd, would simplify the law and make it much fairer. It should make it possible, for example, to limit diminished responsibility to cases of mentally disturbed murderers who needed to be placed in a secure mental hospital and not in an ordinary prison. The amendment should enable provocation to be eliminated as a partial defence, and it should enable people whose actions did not deserve a potential life sentence to avoid one. As I have already said, because of the necessity of consent of the jury to the process, it would be much more acceptable to the public.
The amendment would make an admirable change to the law. It would remove the absolute requirement of mandatory sentence, but do so only if both the judge and the jury were satisfied that there were extenuating circumstances which justified a lesser maximum sentence.
I think that at one stage the noble and learned Baroness, the Attorney-General, said that the best is the enemy of the good. I hope that that means that she thinks that what is proposed in the amendment is the best. It certainly seems to me to be the best, but I do not think that in this case it is the enemy of the good. There is a strong case for adopting the amendment and the principles behind it.
Baroness Butler-Sloss: I also have put my name to the amendment. I strongly agree with the way in which it was put forward by the noble and learned Lord, Lord Lloyd of Berwick, and spoken to by the noble Lord, Lord Goodhart. I add only that I share the dismay of other Members of this Committee that part 2 of the Law Commission's proposals has been put ahead of part 1, but until the Government are able to make up their mind as to what they want, what is proposed in the amendment would provide an opportunity for a jury, properly directed, to make findings of fact on extenuating circumstances, a power which they do not have at the moment, and give flexibility to the judge to deal appropriately with the facts of a case to show the difference between, for instance, a mercy killing and other cases such as the Clegg case and somebody who it is clear should be given a serious life sentence with a long term as the tariff. For those short reasons, supporting the reasons already given, I hope that the amendment will commend itself to the Committee.
Lord Carlile of Berriew: On behalf of these Benches, I, too, strongly support the amendment proposed by the noble and learned Lord following the cogent article or response to the Law Commission by Professor Spencer which I had earlier read. Earlier in this afternoon's debates, the noble and learned Baroness the Attorney-General told us of conversations that she has had with victims of murder. I do not doubt for one moment that they have taken place, though perhaps often in fairly highly charged cases. As a veteran probably of as many murder cases as anyone in this Chamber, both as prosecutor and defender, I must say to her that I have found over the years that, provided as prosecutor or defender you explain the process carefully to the families during the trial, which happily counsel is now able and encouraged by the Attorney-General and the Director of Public Prosecutions to do, their understanding of the process is much increased and they understand that an empirical sentencing process needs to be carried out somehow or other.
As the noble and learned Baroness, Lady Butler-Sloss, said, this proposal adds participation by the public in the form of the jury in the process of decision-making, not only on the bare facts founded on the judge's direction of law but on the qualification and quality of those facts. The noble and learned Baroness the Attorney-General said earlier that we were somewhere on a long process towards reforming the law of murder. I would simply encourage her on behalf of these Benches to seize on the opportunity at least to make some progress today.
Lord Clinton-Davis: I, too, support the proposition advanced by the noble and learned Lord. For many years, I practised in the criminal courts and was engaged in several murder cases, most of which went all right, but some of which did not.
I am not unduly concerned about the authorship of the proposal. I wish it had been centred entirely on the noble and learned Lord, based on his experience. I would have felt more comfortable about that. It is essential that we should do something about the anomalies that exist. To wait indefinitely, as the noble and learned Baroness the Attorney-General proposed on the last
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It is important that we should acknowledge the principle of change and accept that. If we are proved wrong, it will be possible to do something about that in the future. An overwhelming case has been made out for change right away.
The noble and learned Lord also referred to important safeguards. It would be otiose for me to go over these again. He was right to mention the safeguards which can so easily come into operation. This is not a party matter. All in all, we ought to support the idea.
I would like to know what the Law Society, the Bar Council and those who are engaged in criminal law have to say about this. Surely, the Government have conversed with all of them as well as with the victims. I greatly respect the noble and learned Baroness the Attorney-General, who is one of the best Attorneys-General we have had. My aside is intended to establish that we approve of this idea now. It is important that we should be able to make some progress on this significant matter instead of neglecting it for years to come.
Lord Williamson of Horton: I insinuate myself briefly among the lawyers, since all the preceding speakers on this amendment were lawyers. I took note of that. I strongly support this amendment. We have had a huge amount of discussion over a lot of time about the extent to which extenuating circumstances should play a role in the judge's decisions on sentences for murder, contrary to the existing mandatory life sentence. One approach has been to try to define types of murder and manslaughter in order to bring the law more in line with practice, which is a mandatory life sentence accompanied by a tariff which modifies the life sentence in many cases. We have tried to do that. The attempt in the preceding amendment was on those lines.
We now have Amendment 150A in front of us. This amendment corresponds precisely to the way in which I think we should go, for two reasons. First, it provides the flexibility which is obviously necessary because of the different circumstances of these cases. Secondly, it brings in the jury in a role that I strongly support. The jury has a role in giving its opinion on the extenuating circumstances-whether they do or do not exist. This is an excellent amendment, which I strongly support, among the many lawyers who apparently take the same view.
Baroness Mallalieu: I add my voice in support of the amendment of the noble and learned Lord, Lord Lloyd. I understand the reason for the speech that my noble and learned friend the Attorney-General gave in
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It seems to me that this amendment finds a way of somehow mitigating the damage that has been done by the mandatory life sentence. It does not go behind the undertakings that were made at the time because in effect it provides a discretion to those who have had the advantage of hearing the evidence in the court. Those of us who are practising at the Bar and who have sat in many murder cases over the years are bound to say that not only do they all vary in their facts but they all vary in the degree of culpability. As others have said, not all murders merit a life sentence. The majority undoubtedly do but there are those-the mercy killings, the soldier, the one-off-which do not. To watch the judge, the prosecutor and the defence trying to find a way to achieve the right result is not the way justice should be administered. Consistency is needed but so are honesty, openness, clarity and, above all, justice. One size does not fit all in relation to murder cases.
This amendment seems to shine a light for the first time in a way which I hope the Government can take forward. This is a light into a way in which the jury and the judge, faced with these extremely difficult and not very common circumstances, can reach a means of imposing the right sentence on the offender. I hope it will not receive a blanket rejection today. I hope it will be taken away, because the sense round the whole of this Committee is that the time has come for us to make some progress. Even if we cannot tackle the whole of the law of murder, which I think we ought to be doing in a separate Bill, this is one area in which this piece of legislation could at least show some reform and some advance.
Lord Pannick: I support this amendment for all the reasons that have been given by the noble and learned Lord, Lord Lloyd of Berwick, and by so many other noble Lords. It is striking indeed that so many lawyers should agree about anything. I would add one further argument in favour of the amendment. We all know that there are occasions when the jury is reluctant to convict, despite compelling evidence that the defendant is guilty of murder. The jury is reluctant to convict because of its concern that on the facts of the case a mandatory life sentence is simply inappropriate. One of the great attractions of the amendment is that it would involve the jury in the assessment of whether there are extenuating circumstances.
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