HC Deb 20 February 1991 vol 186 cc366-74

'In section 1(1) of the Murder (Abolition of Death Penalty) Act 1965, for the word "sentenced" there shall be substituted the word "liable".'.—[Mr. Archer.]

Brought up, and read the First time.

Mr. Archer

I beg to move, That the clause be read a Second time.

Again, we return to a theme that we discussed in Committee and earlier today, although we are dealing with a different aspect of life sentences. The new clause is about mandatory life sentences for murder. Earlier this evening, my hon. Friend the Member for Huddersfield (Mr. Sheerman) said, when moving new clause 6, that he was taking together mandatory life sentences and discretionary ones. That caused a certain amount of muddle in the mind of the hon. and learned Member for Burton (Mr. Lawrence).

This time, we are all clear. We are talking about mandatory life sentences. The issue is not whether they should be available to the court as a means of disposing of the appropriate cases, but whether there should be no other course open to the court, whatever the circumstances. I believe that this came about—again the hon. and learned Member for Burton said something about this—because it used to be thought that murder was a unique offence and therefore required a unique penalty. That used to be the death penalty. The death penalty was not unique to murder. What was unique was that the death penalty was mandatory. There were very few other offences for which any penalty was mandatory. When in 1965 the death penalty for murder was abolished, it was felt that any alternative penalty should also be unique.

Mr. John Patten

indicated dissent.

Mr. Archer

The right hon. Gentleman is shaking his head. If he wishes to intervene, I am more than willing to give way, because I am not sure which of my statements he is challenging.

What I was saying was that when in 1965 the death penalty was abolished for murder it was felt that the alternative penalty should be unique. The alternative penalty was life imprisonment, but that was not unique to murder, as we have heard this evening. There are discretionary life penalties for other offences. What was unique, again, was that it was mandatory. No other course is open to the court, whatever the situation, whatever the mitigation.

It is a curious concept because everyone knows that the circumstances of offences of murder vary enormously from the savage killing of a total stranger for gain or to get a sick kick, to a crime passionel by a heartbroken spouse, having discovered that his or her partner has been unfaithful, or the action of someone terminating the life of a terminally sick, close relative—the sort of tragedies that we heard about in some of our earlier debates.

Whether we believe that murder merits only a life sentence depends largely on how we formulate the question. Last year a Gallup poll was conducted for BBC2's "Public Eye" programme. The first question asked was: Do you think that there should be a mandatory life sentence for murder? There was a curious result; 47 per cent. of those questioned said yes, 47 per cent. said no, and the others did not know. So there was a dead heat. The same people were then asked: Do you think that there should be a mandatory life sentence for someone who terminates the life of a terminally-ill relative? Only 10 per cent. said yes.

A particular problem relates to hospital orders. Just as the circumstances of murder vary enormously, so the circumstances of murderers vary widely. There may be people who have to be incarcerated for a long period for the protection of the public. There may be others who, we are fairly certain, will never kill again. Sometimes we have to look at the mental condition of the offender.

In many cases a judge would want to make a hospital order, possibly with restrictions. The way we deal with that at the moment is to take up the time of the courts, of the judges, of the legal profession and of expert witnesses, arguing the technicalities of whether someone acted by reason of diminished responsibility. What we should be discussing is whether the hospital order is the appropriate disposal.

The case mentioned a few moments ago by my hon. Friend the Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) seemed to turn largely on whether it was possible to obtain a verdict of not guilty of murder but guilty of manslaughter. In that case the jury had to say, "No, we think it was murder." That is not the question which the court should be addressing; the court should be asking whether it is necessary to lock someone away either in prison or in hospital in order to protect the public. The new clause would spare the courts, the legal aid fund, the Crown prosecution service and everyone concerned the resources now spent on such issues which are needed for other purposes.

Sometimes matters operate in reverse. I understand that victim support groups say that it is wrong for a sentence to be decided in that way because it is the wrong test. They think that some people who escape life imprisonment for murder, because of the application of the diminished responsibility test, would probably be much better incarcerated for a long period. So the victim support groups say that there can be, perhaps not miscarriages of justice, but wrong ways of dealing with the matter in both directions. This proposal was supported by the Butler committee on mentally abnormal offenders in 1975, the Advisory Council on Penal Reform in 1978, the parliamentary all-party penal reform group in 1986 and the Lords Select Committee on Murder and Life Imprisonment—the Nathan committee—in 1989. All those bodies concluded that this was the right way in which to deal with the problem.

I think that I told the Minister in Committee that one of her distinguished predecessors in the high office that she now holds—Lord Windlesham—had made what she would recognise, had she read his book, as an unanswerable case for my proposal. I assure her that it is supported widely among the judiciary. I am not relying on the evidence of private conversations; I remember my hon. Friend the Member for Huddersfield talking in Committee about a poll of members of the Court of Appeal by the Lord Chief Justice—I think that the figures were 19 to 12——

Mr. John Patten

A leak!

Mr. Archer

It may have been a leak; nevertheless, it is no secret that a substantial number of the higher judiciary take this view.

It may be said that there is no need to worry because the matter can be left to the Home Office: the Home Office will release the offender at the appropriate time. That is wrong in principle and, I believe, distorted in practice. It is wrong in principle because the general policy of the law and the constitution in this country is that individual freedom is determined by courts of law, not by the Executive. I am not suggesting that the present Home Office Ministers will enter into a dire conspiracy to keep people in prison for longer than they should be there; but it is wrong in principle that the Executive should make such decisions. It is also wrong in practice, because the Home Office—like all of us—is anxious to show that a life sentence is a serious matter and should mean a substantial sentence. It is very difficult to release someone who has been sentenced for life if he has served only a relatively short sentence.

The most serious cases are lumped together with those that would merit a more moderate sentence. The Home Office is therefore compelled either to release people after only a short period—which might send out the wrong signals—or to keep in custody people who should be, and can safely be, released. In Committee, my hon. Friend the Member for Denton and Reddish (Mr. Bennett) gave the example of a constituent who had committed a murder, but who clearly did not come within the exceptional provisions that reduced murder to manslaughter. That person was no danger to the community. He had been on bail while he was on remand awaiting his trial; he had been walking to and from his home, meeting people in the street, and no one had seen anything wrong in that. Nevertheless, when he was convicted, the court had no alternative but to pass a life sentence.

In Committee, the Minister argued that some hon. Members who had voted in December for the reintroduction of the death penalty had done so on the understanding that the alternative was a life sentence. He said it would be ratting on an agreement if we changed that now. I think that I understand that reasoning—as a reason why we should not have made the change in Committee, where other hon. Members cannot take part in the debate or listen to what is being said. But if that is applied to debates on the Floor of the House, any attempt to disturb the present position by hangers, or any lobby that they and their friends choose to muster, can mean no reform for the foreseeable future. Whatever motion was introduced, and however unlikely it was to succeed, the Government could claim after the vote that nothing must be changed because some hon. Members might have voted on the basis of the status quo. That would put an end for ever to all proposals for reform.

I urge the Minister to consider this matter on its merits. Not even the Home Office can consider that "Whatever is, is good." I think that those words come from Alexander Pope; no doubt I shall be corrected by the Minister if I am wrong. Some things that are, are not good. I do not believe that even the Home Office believes that everything that is, is good. It may even think that the existence of this provision does not make it right. Perhaps we shall have another first for the Home Office.

10.15 pm
Mr. Stuart Randall (Kingston upon Hull, West)

This new clause has considerable support outside the House. In particular, it has the support of the Penal Affairs Consortium. We believe that life sentences for murder should no longer be mandatory. There would be a maximum sentence, and judges would be able to use their discretion to impose fixed sentences where that was appropriate. Hon. Members will be aware that, at present, a life sentence is mandatory for murder. No judge may alter it to take account of the circumstances of a particular case. The sentence imposed on someone convicted of a mercy killing is the same as that imposed on a terrorist murderer or a child sex murderer.

A recent survey by the Quaker Council for European Affairs, entitled "A fair deal for lifers" and dated 1990, found that the number of prisoners in England, Wales and Scotland sentenced to life terms was 3,054. That number greatly exceeded the combined figure for all the other countries of western Europe, which was 2,688. The report says: As information on numbers is only lacking from Switzerland, Malta, Liechtenstein and San Marino, it would be reasonable to assume that the United Kingdom has more life-sentence prisoners than the whole of the rest of western Europe. If the number of life sentence prisoners in Northern Ireland had been added to the figure for England, Scotland and Wales, the total number for the United Kingdom would have been 3,503.

The report concludes that an important reason for the high number of life sentences in this country is the fact that the life sentence is mandatory in murder cases. For example, it seems that in many other countries of western Europe, a person convicted of a domestic murder would get a fixed sentence.

The mandatory nature of the life sentence has been much criticised. Making life imprisonment the maximum sentence, rather than the mandatory sentence, for murder was a recommendation of the Butler committee on mentally abnormal offenders in 1975—a recommendation to which my right hon. and learned Friend the Member for Warley, West (Mr. Archer) has referred—and of the Advisory Council on Penal Reform in 1978. My right hon. and learned Friend referred to several other august bodies that had made the same recommendation, but it would take too long to detail the findings of all those bodies. I shall therefore concentrate on the most recent report of the House of Lords Select Committee on Murder and Life Imprisonment, under the chairmanship of Lord Nathan.

The Nathan committee considered in detail the principal arguments for the mandatory life sentence, and rejected each one in turn. It had been argued that, because murder is a uniquely serious offence, it should attract a distinctive penalty to mark the revulsion with which society regards it. However, the Select Committee pointed out: some cases of murder will be less grave than some cases of attempted murder, or of manslaughter, or of causing grievous bodily harm with intent. The committee quoted Lord Hailsham of St. Marylebone in R v. Howe in 1987, when he said: Murder, as every practitioner of the law knows, though often described as one of the utmost heinousness, is not in fact necessarily so, but consists in a whole bundle of offences of vastly differing degrees of culpability. The Select Committee also pointed out that the definition of murder was not confined to intentional killings but could be satisfied when there was an intention to cause serious bodily harm.

It had been argued that life imprisonment is an appropriate retributive sentence for murder. In paragraph 110B, the Select Committee said: Another view is that the stigma which ought to attach to any particular murder varies according to the circumstances and should be marked by a sentence appropriate to those circumstances. Retribution demands a variable sentence. It had also been argued that the mandatory life sentence was necessary for the protection of the public. The Select Committee pointed out that many murders were committed in domestic circumstances by people under immense emotional stress, who are unlikely to offend again.

It had been claimed that public confidence in the criminal justice system would be eroded if the penalty for murder became discretionary. The Select Committee argued that the reaction of the public varies greatly according to the circumstances and that the public seems to be well able to recognise powerful mitigation, even in the case of deliberate killing. Ministers have argued that there would be considerable public opposition to moves to make life the maximum, rather than the mandatory, sentence for murder. However, such a reform would be in line with the views expressed by the families of murder victims in evidence given to the Nathan committee by Victim Support and the Parents of Murdered Children Group. The director of Victim Support, Helen Reeves, said: We want to put on record quite clearly that, from the families we have met … a long and determinate sentence, would probably be as satisfactory to the family as a life sentence. Victims' groups also expressed concern that the existence of the mandatory life sentence led to many offences of murder being diminished to manslaughter. My right hon. and learned Friend the Member for Warley, West referred to the Gallup poll for "Public Eye". I shall not repeat what he said, except to say that the survey found that only 10 per cent., of people were in favour of individuals who had killed a terminally ill relative, who had asked to be killed, receiving a life sentence.

This is such a serious and complex matter that I must make all these points clearly. It has been argued that the abolition of the mandatory life sentence could present peculiarly difficult sentencing problems, because there were no precedents to guide a judge in imposing a determinate sentence for murder. The Select Committee said that the Court of Appeal would soon establish appropriate principles of sentencing for murder, as it has for other offences, and that the Lord Chief Justice did not appear to envisage any special difficulties.

It was argued that the mandatory life sentence is a valuable deterrent. In paragraph 114B of its report, the Select Committee said: The counter-argument is that the fact, that the life sentence is mandatory, actually reduces any deterrent value a life sentence may have. It dilutes what should be the awe-inspiring nature of the sentence. Because many murderers receive unnecessary life sentences, the average time served is reduced … if the life sentence became discretionary, the average time served by lifers would be substantially increased. The life sentence became discretionary in the Australian state of Victoria in 1986, since when the incidence of homicide has remained about the same.

The case for change is overwhelming. Many life sentence prisoners could appropriately have been given fixed sentences. Murders vary enormously from planned and calculated killings for material gain or political motives to those committed under pressure and in circumstances of much emotional stress. We believe that judges should be able to reflect those variations in their sentences, reserving life imprisonment for the most heinous cases.

Mrs. Rumbold

Some peculiarly seductive arguments have been advanced by the right hon. and learned Member for Warley, West (Mr. Archer) and the hon. Member for Kingston upon Hull, West (Mr. Randall) on substituting life sentences for the mandatory sentence for murder.

The evidence that has been put before us is that a large body of public opinion believes that the mandatory life sentence is no longer required and that the courts would be a better forum for passing sentence on those convicted of murder. The British public trust the House of Commons to act and think on their behalf.

A body of opinion may think that the replacement of the mandatory sentence with a life sentence would be satisfactory, but we should define what we mean. The mandatory sentence for murder means not that people who commit murder go to prison for ever and a day but that for the rest of their lives they are under sentence and, although they may serve only relatively short sentences according to the nature of the murder that they committed, after release they are not at liberty in the sense that the rest of the community is at liberty because if they reoffend they can be recalled and returned to custody.

That is an important principle and it shows the difference between Labour Members and the Government. The right hon. and learned Member for Warley, West spoke of the uniqueness of the life sentence. It is unique because many people regard the crime of murder as a uniquely bad and heinous crime. Although we recognize the difference between someone who is unduly provoked into taking the life of another person in the heat of the moment and a calculated and planned vicious murder, and that each of those murders may attract different sentences, both people have taken the life of another person. The Government, and many people outside who do not articulate their views through "Public Eye" on BBC 2, believe that murder should attract a unique sentence. Some people may not articulate their view when questioned in opinion polls geared to getting a particular answer. As we all know, questions can be produced to look even-handed, but it is a sad fact of life that sometimes opinion polls reveal only what we wish them to reveal.

10.30 pm

This is a serious matter. We believe that the crime of murder is unique. A mandatory sentence means that people may serve a modest sentence in prison. When they are released, they may be recalled. Several cases justify retention of a mandatory sentence. A person released from prison may behave normally, but later in life he may reoffend and have to return to prison. It is important to retain a mandatory sentence to ensure the credibility of the system of justice which we uphold. I am unable to accept the new clause.

Mr. Archer

When the Minister said that our arguments were seductive, I hoped that she was about to announce that she was about to be seduced—hope springs eternal, at least on the Opposition Benches.

I was a little disappointed that the Minister seemed to take such comfort from the thought that someone who had been sentenced to life imprisonment would be under licence for the rest of his or her life. It is not the normal theory of the constitution that individuals should be at the mercy of the Executive for the rest of their lives. It would require a strong case to inflict that on anyone, and that that should happen, irrespective of the nature of the offence and whether the public needs to be protected and whether the offence is likely to recur—[Interruption.] The hon. Member for Stamford and Spalding (Mr. Davies) can stop the semaphore. I see that the Minister wishes to intervene and I shall, of course, give way.

Mrs. Rumbold

The right hon. and learned Gentleman is kind. I am grateful to my hon. Friend the Member for Stamford and Spalding (Mr. Davies), but I am sure he knows that I can compete with other right hon. and hon. Members on even terms.

The right hon. and learned Gentleman said that I took comfort from the fact that people who were released on licence were in some way different and that their liberties were infringed. Of course, what happens rests in their hands. They have no need to reoffend. Their liberties are not impaired, except at their own hands and by their own behaviour.

Mr. Archer

I wonder whether the right hon. Lady was present at our earlier debates. The burden of one of our debates was that if a person's liberties are at the mercy of the Home Office, it does not follow that what happens reflects that person's desserts. The European Court of Human Rights said that that did not follow. If a person's case is periodically reviewed by a court, we can hear the arguments and see what happens and there may be a possibility of appeal. If a person's liberty is determined inside an office where we cannot see what is happening and there is no periodic review, it is not true that his fate depends on how he behaves—it may depend on the number of files on another person's desk.

I do not suggest that that happens regularly, but it is precisely why the textbooks on constitutional law and practice are so insistent that people's liberties should not be at the mercy of the Executive but should be determined by the courts. I am troubled that the right hon. Lady, at this early stage of her career in the Home Office, has such touching faith in the infallibility of the Department, and it makes it no easier for me to say what I am about to say.

A few moments ago my hon. Friend the Member for Kingston upon Hull, West (Mr. Randall) said that murder may be regarded as unique but that that does not necessarily reflect the degree of moral culpability involved. The degree of moral culpability for a rape, an aggravated assault or an armed robbery may be greater, in the judgment of most of us, than for some murders. The argument that murder is unique is not a particularly strong one when reflected upon, and I hope that the right hon. Lady will do just that in the little time that remains for reflection. I do not think that any purpose would be served by pressing the matter to a Division, but the right hon. Lady cannot stop me hoping.

I beg to ask leave to withdraw the new clause.

Motion and clause, by leave, withdrawn.

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