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That leads me to another train of thought: the role of the prosecuting counsel in this part of the case. There are people here with huge experience-I did do criminal law in my younger days but I have not done it for ages-who can explain the role of the prosecuting counsel. As the defence marshals the evidence which, on its case, will lead to the judge making a direction in favour of a finding of extenuating circumstances, I assume-although others with more experience may contradict me-that the prosecuting counsel will be able to test that evidence as it comes forward. That would necessarily lead to some prolongation of the trial, but one would have to accept that if this is the route down which we are going to go, or we will be going, I hope. Presumably, as the prosecuting counsel is not concerned with the actual sentence, he would not be able to make submissions as to whether the totality of the extenuating circumstances as found by the jury amounted to something sufficient to give a lead to the judge giving a proper direction in accordance with subsection (1).

I will just say that there could be foreseeable difficulties-

Lord Thomas of Gresford: Does the noble Lord accept that the prosecuting counsel could certainly challenge the facts from which the defence was seeking to draw extenuating circumstances, although he might not be obliged or able to address the jury on whether they were extenuating circumstances or not? However, he could certainly challenge all the facts.

Lord Neill of Bladen: That is what I said. The prosecuting counsel would have a role as a challenger of fact.

Lord Morris of Aberavon: My Lords, I, too, apologise for missing the earlier part of the debate, but in the summer I read the letter of the noble and learned

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Lord, Lord Lloyd, where he advanced the most convincing arguments for the amendment that he has now put forward and on which I wrote to him in support. In a lifetime of practice involving many murders, the usual issue is whether it was murder or manslaughter. I have long believed that there should be one law of homicide, as Lord Lane, a former Lord Chief Justice, adumbrated more than 20 years ago. Therefore, I fully support the amendment tabled by the noble and learned Lord, Lord Lloyd, which seeks to deal with the too blunt instrument that we now have.

The Lord Bishop of Ripon and Leeds: My Lords, unlike most of the speakers in the debate, I have never studied criminal law, but I have considerable experience of seeking justice and what that means. This amendment is based around the concept of justice and I support it for that reason. Our criminal law is based on justice, but justice is a far wider concept than simply that of our criminal law. If we are to put that concept and idea of justice into real effect in our society and therefore within our law, it will need at least to include both verdict and sentence. In this debate and in the discussion that preceded it, the danger is that we shall have verdicts that are just but sentences that are not. That cannot lead to a sense of justice in the community.

A sentence of life imprisonment is rightly an extremely serious sentence. The problem with the present law is that it can bring that sentence into disrepute. We have heard terms such as "fiction" and "conspiracy" used about the present law during this debate. That cannot be right. We need to have confidence in both judge and jury; I was powerfully influenced by what the noble and learned Lord, Lord Mayhew, said on that matter. If we are to have that confidence, I believe that this amendment or something like it needs to be put on to our statute book in the cause of justice.

5.45 pm

Lord Hunt of Wirral: My Lords, the noble and learned Lord, Lord Lloyd, has made his case in characteristically eloquent terms. I came into this debate ready to listen. I have listened carefully because, like the right reverend Prelate, we all want to see justice. Whereas the noble Lord, Lord Goodhart, said that if we pass this amendment it would simplify the law, I must say that, as a result of the speeches that we have heard, I am well aware that it would hardly do that. However, many noble Lords feel strongly that this change should be made.

The idea that the jury can add a rider to its verdict is an interesting one, which I recognise has considerable support around the House. Indeed, I agree with my noble friends Lord Stewartby and Lord Newton that the tenor of the debate has been in that direction and I greatly respect my noble and learned friend Lord Mayhew of Twysden in what he said. But the addition to English law of what is in effect an additional verdict is, we have to recognise, an innovation.

Lord Thomas of Gresford: Does the noble Lord recollect that, when murder was a capital offence, a jury was able to give a recommendation for mercy, which was usually acted on by the Home Secretary of the day?

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Lord Hunt of Wirral: Yes, I do recall that.

Baroness Murphy: I am sorry to interrupt the noble Lord. I think that he will find that it is the jury that finds for diminished responsibility as well. The judge recommends, but it is for the jury to find. It is a different verdict.

Lord Goodhart: I am sorry also to interrupt the noble Lord to make a brief point. Does he accept that, in the case of the defence of provocation, which is plainly an extenuating circumstance, it is the jury that now takes the decision as to whether there has been sufficient justification? The jury does so, of course, in the light of advice given by the judge, but it is definitely the decision of the jury. Why should the power of the jury in relation to that particular extenuating circumstance not extend to other extenuating circumstances as well?

Lord Hunt of Wirral: Yes, I accept what the noble Lord says and, so far as the noble Baroness is concerned, we are about to come to a series of extended debates on developmental immaturity, diminished responsibility, gross provocation, sexual infidelity, proximity of qualifying triggers et cetera. These are issues that we are going to discuss in much more detail. All I will do is repeat that what is in effect an additional verdict is an innovation; it would have serious and far-reaching ramifications, about which the noble and learned Lord said he was well aware.

The first and most obvious is that the noble and learned Lord's amendment would all but do away with the concept of the mandatory life sentence. Many noble Lords have spoken with eloquence about the need in effect to do that or to recognise that it has virtually disappeared as it is. That, I suppose, is another issue to which we will return. But if the jury was to return a verdict of guilty but with what are called extenuating circumstances, under subsection (3) of the new clause proposed in the amendment the judge would not be obliged to pass a long sentence, notwithstanding subsection (4), which would demand that a judge in such circumstances would have to state his reasons for choosing another sentence. However, we would still be confronted with a situation where a verdict of guilty to murder would not necessarily attract a life sentence. That, therefore, would be the end of the mandatory life sentence.

I look forward to hearing what the Minister has to say, but if Parliament was minded to take a step such as this, it should do so only after wide consultation and a full debate on the merits of sentencing provision. If we were to accept the noble and learned Lord's amendment, we would be sidestepping the issue of the mandatory life sentence. I should say to the noble and learned Lord-although he seemed to be well aware of what I was about to say before I stood to make this contribution-that we on these Benches would not wish to do so because we are in favour of keeping the mandatory life sentence and the amendment would undermine that.

I am puzzled, too, as is the noble Lord, Lord Clinton-Davis, by subsection (2) of the proposed new clause, which would allow the judge to withhold giving

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a direction to the jury that it may return a verdict with a rider of extenuating circumstances if he or she felt that a reasonable jury would not do so on the evidence. I ask: what is a reasonable jury? The noble and learned Lord said that it is just a case of looking it up in the Oxford English Dictionary. I have on many occasions looked in that dictionary to find a variety of definitions, but I am not quite sure what this would prove or disprove. Surely if we trust in the way our jury system works, any given jury has to be treated as reasonable. So what grounds would the judge give for withholding his direction? Would it depend on the nature of the evidence or on the nature of the jury? The noble Lord was right to express this, although he gave us to understand that he had already been satisfied by the addition of an amendment.

Lord Clinton-Davis: Do I understand that the noble Lord is arguing that what I propose is fine? Would he support the proposal put forward by the noble and learned Lord, Lord Lloyd of Berwick?

Lord Hunt of Wirral: All I am saying at this stage is that the noble Lord is right to point out the difficulty of understanding what "reasonable" means in these circumstances.

How would the conflict that the noble Lord and I have identified be resolved? Would we see inconsistencies in verdicts emerge in different parts of the country unless a standardised view of what is a reasonable jury were formed? The mandatory life sentence at least has the virtue of being consistent.

On the issue of consultation, I know that the noble and learned Lord, Lord Lloyd, does not pursue this matter lightly; I know and admire the formidable amount of time, thought and energy that he has devoted to developing his arguments, as we saw with the contributions of many noble Lords. But such a move as his amendment would require in the operation of the system of jury verdicts and in changes to the law on sentencing, I hope noble Lords agree, deserves fuller and more public debate. We would gladly participate in any such public discourse, but we firmly believe that we would need to involve all the key organisations-the Bar Council, the Law Society and the Law Commission-far in advance. I say to the noble and learned Lord and to all noble Lords who have participated that it is very important that we have this debate. Noble Lords have conducted it to their usual commendable high standards and I apologise if I do not seek to respond to every point raised but, for the reasons that I have outlined, I cannot at this stage and on this occasion commit the Opposition to supporting the noble and learned Lord.

Lord Pannick: Does the noble Lord accept that there has been consultation on this issue for the past 20 years and that the views of all professional organisations have been absolutely clear? Can he explain why he tells the House that he is in favour of the mandatory life sentence? What is the reason for retaining it?

Lord Hunt of Wirral: I am talking about public consultation on this proposal and I do not believe that there has been that consultation. All the arguments in

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favour of maintaining the mandatory life sentence are still there and I support them. The nature of the consultation to which the noble Lord referred does not include consultation on this proposal, which I think is sorely needed.

Lord Thomas of Gresford: My Lords, my name is attached to the amendment and I was delighted to hear the noble Lord, Lord Hunt, call for a wider and fuller debate, with key organisations consulted, on the reform of the law of homicide, which is what should happen. In this instance, the Law Commission has been confined in its consideration by the presupposition that the mandatory sentence would remain and has produced a structure from which the Government have chosen one or two things completely out of context and put them into the Bill. The amendment put forward by the noble and learned Lord, Lord Lloyd, undoubtedly would simplify the position completely.

Noble Lords seemed to forget that the partial defences do not arise unless the jury is satisfied that murder has been committed. The first thing of which a jury is required to be satisfied is that the defendant killed the victim, either with the intent to kill or with the intent to cause him serious harm. It is only at that point that the judge will ask the jury to consider whether a partial defence arises. If it is the defence of provocation, the judge will not ask the jury to consider it unless he considers that a reasonable jury, properly directed, could return that verdict. The direction that the judge will give is encapsulated in Clause 48(6), where the Government trample on provocation. I shall come back to that. Subsection (6) states:

"For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply".

That is the word that the noble Lord, Lord Clinton-Davis, would prefer. The law at the moment takes into account what a reasonable jury might or might not conclude before the judge will leave to it the possibility of returning a verdict of manslaughter rather than murder on the grounds of either provocation or diminished responsibility. The essential thing is that murder must be proved first. It is then called by a different term-manslaughter-if the prosecution fails to disprove one or other of the partial defences that the judge has concluded the jury might reasonably consider on the evidence adduced in the case.

The amendment proposed by the noble and learned Lord, Lord Lloyd, envisages that a jury should still convict of murder if the ingredients of murder are satisfied-that a person has killed with intent to kill or to cause serious or grievous bodily harm. So the defendant would still be convicted of murder as opposed to manslaughter. However, in a case where the judge thinks that it is reasonable so to conclude on the evidence adduced, the jury could say that there are extenuating circumstances. This would open it up to the judge to pass a sentence other than the mandatory life sentence, which is, of course, the stumbling block to all proper reform in this area. I do not want to repeat everything that has been said by noble Lords; I just wish to endorse it from long experience.

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6 pm

If the argument advanced by the Attorney-General in Committee is the only one on which the Government found their resistance to the amendment-they question what such circumstances amount to-one has only to consider what sort of concepts a jury has to grapple with not only in the current law of provocation but in the law as redrafted by the Government. Under Clause 48, the jury has to grapple first with whether the defendant's acts or omissions in doing or being a party to the killing resulted from the defendant's loss of self-control, whether that self-control had a qualifying trigger-I shall come back to that-and then whether,

A jury has therefore to go through all this process of putting itself in the position of that defendant and then, acting as the embodiment of the reasonable man, to consider, "Well, would I have done that if I had been in the position that the defendant was in, bearing in mind his age and sex?".

It is a very difficult concept, but the jury's task does not stop there, because it has to look at the "qualifying trigger", which is, for example, that the,

So the jury then has to consider a "qualifying trigger", "extremely grave character", and,

Then, by way of a final kick before that clause is left, it has to exclude anything that constitutes sexual infidelity-we shall come back to these arguments at a later stage.

At the moment, the law is intensely complicated and requires the jury to conduct all sorts of difficult intellectual exercises, but, as proposed by the Government, it gets even worse. This is all to reduce the conduct of the defendant from murder, so that he is no longer called a murderer but is called somebody guilty of manslaughter, and to enable the judge to pass a sentence that he thinks is appropriate in the case. Under the amendment tabled by the noble and learned Lord, Lord Lloyd, the judge would be obliged to take into account what the jury, as the representatives of the people, thinks are extenuating circumstances. The judge does not have to agree under the amendment, but he would no doubt take very much to heart what verdict was proposed.

The law of murder is in a mess; it requires complete restructuring. It requires getting away from the mandatory life sentence-a political football that has been knocked around for so long-and it demands a rational approach. The nearest within the context of the law at the moment that you can get to a rational approach is for your Lordships to accept the amendment that the noble and learned Lord, Lord Lloyd, has moved.

Lord Bach: My Lords, I thank the noble and learned Lord, Lord Lloyd of Berwick, for moving the amendment. I also thank all those who have spoken in what, as the noble Lord, Lord Hunt, said, has been a good debate on a very important topic. Widespread support for the amendment has been expressed around the House and

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one can understand why it appears attractive. However, this is not an amendment that the Government can accept. Perhaps I may explain in a few words, because this has been a long debate, why that is so.

This debate is about the effective abolition of the mandatory sentence. When the noble and learned Lord, Lord Lloyd of Berwick, moved an equivalent amendment in Committee, he said:

"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".-[Official Report, 30/6/09; col. 151.]

He has moved the same amendment with great eloquence again today. However, if it is passed, it will in practical terms abolish the mandatory sentence. There are many commentators, both inside and outside this House, who would like the mandatory sentence abolished-I appreciate that and accept it at once. There are also others who do not think that we can take that step quite so easily as doing it through an amendment to this Bill. I agree with the noble Lord, Lord Hunt of Wirral, that there needs to be a full debate about whether the mandatory sentence should stay before we effectively abolish it, because that is what we would do if we voted for the amendment tonight.

The mandatory sentence is not just or at all to do with trying to keep in with the popular press-my goodness, if my party was trying to keep in with the popular press, it is not making much of a job of it at the moment. It is much more to do with reflecting the seriousness of killing with an intention at least to cause the victim serious harm and, in most cases, death. Whether we like it or not, the public rightly regard murder as a particularly abhorrent crime, and the mandatory life sentence in some way reflects society's disapproval. There may well be good arguments against a mandatory system, but we should not abolish it in this way.

The law of homicide is an important and sensitive area where it is critical that we do our best to get things right. We as a Government have proceeded in a particular way with a staged reform of the law, undertaking extensive consultation with stakeholders along the way. My noble and learned friend the Attorney-General reassured the House in Committee that we will look at the commission's other recommendations, in particular those for a new structure for homicide in due course, in the light of the effect of any changes arising from this stage of the work.

In that context, the law already provides, and under our proposals will continue to provide-we shall debate that later this evening-partial defences to murder which can reduce murder to manslaughter. Murder is not reduced to another term but to another offence, manslaughter, in those tightly defined circumstances where as a society we feel that it should be open to the judge to have a wider range of sentencing options.

However, the "extenuating circumstances" amendment goes much further than this. In the words of the Law Commissioner, Professor Jeremy Horder, it would, if passed,

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The amendment provides that in homicide cases the judge has the power to direct the jury that, when finding a defendant guilty of murder, it should be open to them to find simultaneously that there were "extenuating circumstances". In those circumstances, the judge would then be permitted to impose a sentence other than life imprisonment, which means that a sentence other than life could be passed on a person convicted of murder, which means that the mandatory sentence is dead.

In Committee, it was argued that this amendment was an elegant way-and indeed, it has been argued extremely elegantly-of giving the judiciary greater discretion without removing the mandatory life sentence altogether. Personally, I prefer Law Commissioner Professor Jeremy Horder's more frank appraisal of its effect, that,

That is strong language, but can anyone who has listened to this debate not think that that is what passing this amendment would do? We oppose any amendment that would do away with the concept of the mandatory life sentence, whether by the front door or by the back door.

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