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Only murder requires a mandatory life sentence, and that seems to have become a sacred matter. It means that when the Government asked the Law Commission to consider reforms to the law of murder, they excluded any alteration in the mandatory life sentence. The result was a report by the commission which, I believe, has been regarded by many people as rather unsatisfactory. Yet, as the noble and learned Lord, Lord Lloyd of Berwick, said, murder covers an immensely wide spectrum-everything from sadistic serial murder to mercy killing. Why should we not recognise this and allow variable sentences for murder? The main reason seems to be the fear that the media will stir up public opinion by attacking any sentence short of life imprisonment as being soft. The answer to that is to adopt the proposal by Professor Spencer, as this amendment does.

The Spencer proposal, on which the amendment is based, provides three safeguards. First, the judge must tell the jury that it would be possible for a reasonable jury, or for a jury reasonably, to decide that there were extenuating circumstances which justified a lesser sentence. Secondly, the jury, or at least 10 of its 12 members, would have to decide that there were extenuating circumstances which justified a sentence short of life imprisonment. Thirdly, if the Attorney-General thought that the sentence was too lenient, she would be able to appeal against it. The involvement of the jury here is critical because, if a jury of ordinary people decides that there are extenuating circumstances, it will be far more difficult for the media or the public to attack the sentence in question.

It has been suggested that the expression "extenuating circumstances" needs more detailed definition. I do not agree with that. The facts of each case are likely to be immensely variable and it would be useless to try to put them into a rigid list. The only reasonable definition of extenuating circumstances that I can come to is circumstances that reasonable people would regard as justifying a sentence that was not a life sentence. That is simply a circular definition. No doubt over time a pattern would be built up, but it should be a flexible pattern developed through the courts, not tied to rigid rules set out in legislation.

The acceptance of this amendment would greatly simplify the law. The defence of diminished responsibility

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would be limited to the purposes for which it was originally created-that is, to apply to people who are driven to kill by an abnormal mental condition. It would not need to be extended beyond its real meaning, as happens now, to enable a court to impose a merciful sentence on a mercy killer. The partial defence of provocation, or its proposed replacement-loss of control-could be abolished altogether and the facts taken into account in deciding whether the circumstances were extenuating, and if so, what the sentence should be.

This amendment would make the law simpler and fairer. As far as I can see, it has no disadvantages and I invite your Lordships to support it.

Lord Clinton-Davis: Does the noble Lord support my comment that the words in the amendment are fine except for, "a reasonable jury"? That is misconceived. The jury might come to a reasonable verdict.

Lord Goodhart: I mentioned both options in my speech. I do not think that there was much difference between them but I am happy to accept the noble Lord's suggestion.

Baroness Butler-Sloss: My Lords, I put my name to this amendment and strongly support what has already been said both by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Goodhart. The phrase "life imprisonment" is sacrosanct, as the noble and learned Lord, Lord Lloyd, said, but of course, it is not true. Very few people serve life imprisonment; I think that fewer than 10 people are likely to be there throughout their lives.

So, we start with a contradiction: the sacrosanct life imprisonment and the reality which is entirely different. It is a sound and not substance. It would be very sad-it is sad in that it happens-if both the Government and the Official Opposition were so concerned to align their position with the popular press rather than look at the merits of a very good amendment. It would be a great triumph for common sense, as well as for the amendment of the noble and learned Lord, Lord Lloyd, if both the Government and the Official Opposition were to agree on this and let it through.

Lord Mayhew of Twysden: The mandatory life sentence for murder is an anachronism and it is not benign either. I support what has been said by all speakers so far in this short debate for the reason that is central to the case that they make-that every murder differs in important respects generally from another. The circumstances in which murders are committed are infinitely variable. That truth has had to be recognised by the various administrative devices that we have adopted over the years to deal with it. It would be far better for the trial jury, suitably directed-I shall come to that in a moment-to give its opinion, after it has heard all the witnesses and seen the evidence, on whether extenuating circumstances exist.

I find it difficult to understand the visceral opposition that exists in some quarters because in the same quarters there is a passionate and correct upholding of the jury system and the jury's right to determine guilt or innocence. It would be far better to extend that, so that a jury might say, "Very well-guilty of murder. But having

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heard the judge's direction as to whether there exists evidence that may be capable of being seen to be extenuating, we think that such evidence does exist and that there are extenuating circumstances".

5.15 pm

This amendment will retain the life sentence as a norm, but it will mitigate its propensity to produce an incongruous result. It is important to bear in mind that the judge must direct the jury that in his view, if they are satisfied that the defendant is guilty of murder but are of the opinion that there were extenuating circumstances, they may return a verdict to that effect. However, he may not give such a direction unless there is evidence on which a jury might reasonably find. It is also important to preserve the discretion of the Attorney-General to refer the matter to the Court of Appeal if he or she believes that the sentence is unduly lenient. It will also be another ground for appeal to assert that the judge was wrong in directing the jury as he had and that there was evidence capable of such a finding.

For reasons which have been touched upon, a certain amount of courage will be needed if this is to be accepted-a certain amount of courage, but not much. It ought to be found.

Lord Woolf: My Lords, I hesitate to add to the eloquence that has been advanced in favour of the amendment, but I would be departing from a tradition that has grown up in recent times, and certainly since the time of Lord Lane, of former Lord Chief Justices indicating that reforms of this kind are desperately needed in relation to the law of murder.

We have heard previous speakers identify the various precautions in existence, showing that ample safeguards are included in the proposed section. Therefore, if the clause becomes law, nothing untoward will happen. However, I want to add one more. It is clear from subsection (3) that the judge himself must consider it appropriate, having regard to the extenuating circumstances, not to impose a life sentence. He will therefore have in mind the fact that the law is so clear that in all ordinary circumstances the sentence must be one of life. It will only be in a situation in which, as the sentencing judge, he is satisfied that justice does not require a life sentence that he will impose another sentence.

Lord Pannick: My Lords, I, too, support the amendment. The fear of being perceived to be soft on crime, the jurisprudential basis rightly identified by the noble and learned Lord, Lord Lloyd of Berwick, is nonsensical in this context. It has for some time been the case that the mandatory life sentence does not consist at all of a life sentence: it consists in all but a few cases of a penal element expressed at the trial in the form of a term of years communicated to the defendant, following which the defendant is considered for release by reference to whether it is safe to release him or her.

The only argument advanced by the noble and learned Baroness the Attorney-General in Committee in response to the points made was that the life sentence enables the defendant to be recalled to prison at any time during his or her life. If that is the aim of the life

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sentence, and the only aim, surely that objective can be achieved by confining the life sentence, as the amendment would, to cases where there are circumstances which justify a lifelong condition and the possibility of recall for the whole of the individual's life. There is no basis for those conditions where there are extenuating circumstances which make the prospect of repetition of the offence non-existent.

I also remain concerned, as I explained in Committee, that under the current law, there are cases where the jury is simply unwilling to convict of murder, although that is the true verdict, because it is unwilling to subject the defendant to a mandatory life sentence, because that is manifestly unjustified in the circumstances of the case.

Lord Carlile of Berriew: I, too, support this very important amendment. I say to the Government that there cannot have been many debates in this Chamber where we have heard the views not only of a very distinguished retired Law Lord, the noble and learned Lord, Lord Lloyd, but of a retired Lord Chief Justice and of the noble and learned Lord, Lord Mayhew, who was both Attorney-General and Secretary of State for Northern Ireland for considerable periods; so we have a wealth of experience advising us in this debate. It is also to be noted that in the noble and learned Lord's amendment, the judge is not obliged to pass a sentence other than a life sentence. If the judge regards the defendant, despite the extenuating circumstances, as being a continuing danger, the judge may still pass a life sentence and therefore ensure that the whole panoply of the Parole Board is brought to bear on the case and the defendant may be subject to release only on licence in future.

Had we been able to conduct methodical research into the views of juries and the way in which juries function, I am absolutely sure, after well over 30 years of dealing with juries, that we would have found juries agreeing with what is proposed. I support completely the last point made by the noble Lord, Lord Pannick: there is a mass of anecdotal, albeit anecdotal, evidence that juries are not convicting people of murder in cases where there are extenuating circumstances, for two simple reasons. First, they are not willing to hear the words, "You will be imprisoned for life", passed on the defendant in the case. Secondly, they know that the parole system is unpredictable and, currently, overwhelmed and therefore cannot be guaranteed to provide fairness.

Baroness Warnock: My Lords, I rise briefly simply so that there should be some voice other than the voice of the law in favour of this extremely important and subtle amendment. The law must be seen to be just. I have just been reading the life of Lord Denning. His perpetual insistence on the aim of a trial, the aim of the court and the aim of the judge being to see that justice is done to the defendant seems to me to be of enormous importance.

It cannot be seen by ordinary people who are not lawyers to be just if crimes such as mercy killings or deeply regretted killings undertaken in the heat of battle should be treated in the same way as completely different, malicious, evil and probably self-seeking killings at the other end of the spectrum. Even though the

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concept of a life sentence is absurd because it is not normally a sentence for life, the ordinary public, of whom the jury is composed, do not like this farce and the manifest injustice of treating different cases as though they were the same.

Lord Condon: My Lords, as a former police commissioner, I find myself completely at ease with and supportive of this amendment. I believe that the majority of the public would also be at ease with it. I do not think it is in any way a softening or weakening of the approach to murder. It is an elegant solution to a problem that has been unresolved for too long. I support the amendment.

Lord Ramsbotham: My Lords, I also add non-legal support to my noble and learned friend Lord Lloyd. I was enormously influenced in my decision by an excellent report by a very distinguished panel led by the Dean of Southwark who came to exactly the same conclusions for exactly the same reasons.

Lord Elystan-Morgan: My Lords, nothing that I say should affect the unanimity of the verdict that Members of this House have expressed on this matter until now. I spoke at some length in Committee and nothing that I said on that occasion will be improved by repetition. As a circuit judge, I never had occasion to try a murder case, but 40 years ago, I was a Minister in the Home Office dealing with criminal matters from day to day. James Callaghan, the Home Secretary of the day, told me quite robustly that this was lawyer's work and that although the decision in relation to life cases would ultimately be his, he would expect to have my firm views with regard to each case. I found myself almost weekly being involved in situations where the law ordained that there should be a rigid sentence without exception but where the range of difference between one case and another, as every speaker has endorsed, was so immense that one could not conceive of the justice of dealing with them in a rigid and uniform way. It therefore seems to me that the amendment is utterly justified and meritorious. Not only can it simplify and clarify the law, because it can take over from considerations in relation to provocation, but it can make it much more transparent.

From time to time over the centuries there has been what might be described as pious perjury on the part of juries, and thank goodness for that. They have somehow bent the facts in order to prevent dreadful injustices. I have no doubt that even nowadays juries exercise some measure of pious perjury in arriving at verdicts of manslaughter rather than murder. What is now less than honest can become totally honest and transparent. As more than one speaker has stressed, society at large, right-thinking, intelligent, fair-minded, balanced society will accept this. If we wait for the day when the Daily Mail, the Daily Mirror and the Sun look in a balanced, reserved and cool way, we will have to wait for ever.

I noticed the Minister recoil almost in horror when it was suggested that he was politically motivated here. I have immense regard and respect for him. All I say is that it would be unfortunate if he was seen to stand with the tabloids against remedying an obvious injustice as soon as possible.

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5.30 pm

Baroness Murphy: My Lords, I repeat what I said in Committee in strong support for the amendment. I am particularly concerned-other people have not mentioned this-about people with peculiar mental states who will not now fit into the new criteria for diminished responsibility because they will not fit conveniently into the diagnostic and statistical manual and the international classification of diseases. If we are to have individualised justice, jurors and judges need to address a wide range of circumstantial, psychological and contextual matters, as other people here have said today, and it concerns me that we might miss out some of the people who would be covered by the old provisions for diminished responsibility. The amendment would be an elegant and simple way of meeting some of our concerns, and defendants would not have to be artificially squeezed into inappropriately fudged categories. I give my wholehearted psychiatric support to the amendment.

Lord Alderdice: My Lords, I do not wish to repeat what my noble professional colleague said, so I will address a different, and straightforwardly political, difficulty that leads me strongly to support this amendment.

The population as a whole does not necessarily look in the same way at the detail of how a court has come to its conclusion. I cite the case of Private Clegg. When he was convicted, there was a clear view in Northern Ireland of what that meant; he was guilty of murder, and a life sentence was required. When subsequently it was decided that he should be released, it was not seen as appropriate mercy, given the circumstances; it was seen as the British establishment backing its own man in the security forces without due consideration of the sensitivities of nationalist people in Northern Ireland. That was not what it was and not how it should have been seen, but it was to some extent a consequence of the straitjacket in which the judge and the court were placed. Had the amendment in the name of the noble and learned Lord, Lord Lloyd of Berwick, been in place at the time and had that flexibility been available, it would have made it possible for the judge and the court to nuance the decision in such a way that a political problem, which proved to be of serious magnitude in Northern Ireland, would at least have been mollified to some extent.

We sometimes speak of political motivations as though they were always a bad thing, particularly in relation to issues of this kind, but here there are very good reasons for understanding that adverse and inappropriate political consequences can flow from such situations without the flexibility in the noble and learned Lord's amendment. This is an opportunity for us to rectify this, if not for the past then at least for the future.

Lord Low of Dalston: My Lords, I, too, strongly support the amendment. I must apologise to the House and to my noble and learned friend Lord Lloyd for missing his opening remarks, but I think that I have heard enough of the debate to feel confident that I will not simply repeat what other people have said, no doubt with greater eloquence.

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The crime of murder, as we have heard, encompasses an immensely broad spectrum of circumstances that runs all the way from terrorist or gangland killings at one end of the scale to mercy killings at the other. The mandatory life sentence is a supremely blunt instrument for responding to the relevant distinctions in a properly discriminating way. Our law is saved from the charge of barbarism only by what is referred to as the benign conspiracy. Fictions of this sort are undesirable, so it is clearly desirable that the law should be amended to recognise openly and transparently the distinctions to which all noble Lords have referred. However, it is imperative, and not just desirable, that something is done now that the Government propose to narrow the scope of the defence of diminished responsibility, which provides the basis for the benign conspiracy, so that it will no longer be available.

The Government, with this Bill, are implementing some of the recommendations of the Law Commission report of 2004, but they have not implemented all of them. The report called on the Government to undertake a public consultation on whether, and if so to what extent, the law should recognise either an offence of mercy killing or a partial defence of mercy killing, but the Government have not implemented that recommendation and have not undertaken the public consultation that was called for.

In the absence of such a consultation and with the narrowing of the defence of diminished responsibility, the amendment, or something like it, would provide the only means of rescuing our law from the charge of barbarism that it will undoubtedly attract if the Bill goes forward in the form which the Government propose.

Lord Stewartby: My Lords, this is not a subject to which I gave much thought before this afternoon. I was not clear what my view ought to be about it and I thought that I would attend your Lordships' House to listen to the debate. It happens that this is one of the most remarkable occasions that I have ever experienced in this House in almost 20 years. The noble and learned Lord, Lord Lloyd, has made a powerful case, and it has been backed up by an amazing range of different experience and recollections of different circumstances.

If there is a political angle to this, it is pretty flimsy because the role of the jury that is proposed here would guarantee popular consent. Those on the Front Benches may produce ideas that have not occurred to me but, on the basis of the debate that I have heard, I am very much minded to support the amendment.

Lord Newton of Braintree: My Lords, my brief intervention from these Benches will be on the same lines as those of my noble friend Lord Stewartby and, indeed, the noble Lord, Lord Low. I ought to confess that, like them, I did not hear every word of the opening remarks of the noble and learned Lord, Lord Lloyd of Berwick, but I have listened to the rest of the debate and think that the weight of support for the amendment is really very impressive and almost convincing in itself.

The only other point that I want to make is that no doubt those who do not favour this amendment will argue, as I think the noble Lord, Lord Pannick, did, that this is somehow going soft on something. I merely

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observe that as everyone knows that a mandatory life sentence does not mean what it says, some cynicism is generated by the defence of a proposition that does not mean what it says. Taking a more realistic approach to the law and the situation is both sensible and right.

Lord Neill of Bladen: My Lords, I draw attention to the practicalities of the amendment and to the consequences of the trial if we go down this route. I fully support the amendment-it is completely correct-but, as the noble and learned Lord, Lord Mayhew, said, cases will come forward with an infinite variety of circumstances. I find it possible to conceive of a case where the defence ran with diminished responsibility, giving three sets of circumstances that combined to produce extenuating circumstances sufficient to comply. The jury could be convinced by two of those circumstances but not at all by the third. That is implicitly provided for in subsection (3) of the proposed new clause, although whether it has that aim, I know not. It states:

"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".

The jury could therefore make a finding to the effect that, "We can find on A and B but we do not find a third element".

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