HL Deb 27 October 1987 vol 489 cc415-36

3 p.m.

The Earl of Caithness

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—( The Earl of Caithness.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Lord Hutchinson of Lullington moved Amendment No. 52: Before Clause 39, insert the following new clause:

("Minimum periods for life sentence prisoners.

Section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 shall cease to have effect.").

The noble Lord said: With the leave of the Committee, I will speak also to Amendment No. 55. These two amendments are inevitably important amendments. They deal with the present mandatory statement of life imprisonment for murder. When imposing such a sentence, a judge may, if he so wishes, make a recommendation that the person concerned shall serve a minimum period of imprisonment before he is released.

The purpose of Amendment No. 52 is to abolish that power, against which there is no appeal, and the purpose of Amendment No. 55 is to make the mandatory sentence a permissive power only in the court and the sentence for the worst offence life imprisonment. For other offences there should be power in the court to impose a determinate sentence when appropriate.

These amendments are supported by the All-Party Penal Affairs Group and are put forward on an entirely non-party basis. When a recommendation is made it is almost certain that the person concerned will serve the whole of the period recommended, no matter how circumstances may change over the years. The person's behaviour in prison and so on is totally irrelevant.

Between 1965 and 1986, 244 recommendations were made. In only seven of those cases was the person concerned released before he or she had served the recommended period, and then only after consultation with the Lord Chief Justice and the trial judge. The main reason for wishing to remove this power now is that it is a power which is used entirely inconsistently. There are no laid down criteria for its use and it appears from history that it is used in an entirely haphazard manner. Some judges believe in using it: other judges believe in not using it. That is the situation at the moment. In many notorious cases it has not been used at all: instances are the Moors murderers, the Birmingham bombers and the M62 coach bomb case, to name only three. No recommendation was made in those cases and there are many other equivalent cases where no recommendation was made.

The result is that when at long last it is time for a lifer to be released or to have his sentence reviewed, the greatest bitterness is felt at those who seem to have committed similar or even far worse crimes whose sentences are reviewed and who are released long before those who happen to have come before a judge who believes in making a recommendation. This power has been considered by various bodies over the years. In 1978 the Advisory Council on the Penal System recommended its repeal. In 1980 the Criminal Law Revision Committee found itself split down the middle. The majority took the view that the existence of the power might still have some value because it might provide reassurance to the public and found it as yet, to use its words, too soon after Parliament made the provision to advise its withdrawal.

The minority wished to get rid of it. The All-Party Penal Affairs Group gave this matter lengthy consideration a year ago and its findings were that it did not consider that the Criminal Law Revision Committee majority arguments were sufficiently strong to outweigh altering the procedure, which it said: has operated in an inconsistent and thereby unjust manner". The committee considered that it should be repealed, but if that were not acceptable then the power should he made appealable. As the Committee will appreciate, that is the subject matter of Amendment No. 52A, with which my noble friend Lord Donaldson is concerned.

Another reason against the recommendation is that it removes the flexibility for release to be found in a life sentence. Of course if Amendment No. 55 were carried there would be no need for this amendment at all, which takes me to Amendment No. 55.

Section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 makes imprisonment for life a mandatory sentence in cases of murder. Amendment No. 55 makes such a person only liable to a life sentence. This proposal has a very honourable track record. It has been recommended before by the Butler Committee on Mentally Abnormal Offenders in 1975, by the Advisory Council on the Penal System in 1978, by half of the Criminal Law Revision Committee in 1980 and by the All-Party Penal Affairs Group last year. Surely it is time once again to give this matter the most serious and favourable consideration.

The noble and learned Lord, Lord Kilbrandon, said in the case of Hyams in 1975: It is no longer true, if it ever was true, that murder as we now define it is necessarily the most heinous example of unlawful homicide". There are undoubtedly cases of murder which simply do not require a life sentence. A person may be under extreme stress; a woman may be hideously maltreated by a drunken husband; a mother may murder a young child being brought up in the most abominable conditions and may well be medically subnormal when she kills a young child. There are such cases and nearly everyone who participates in criminal trials would agree that to have to pass a life sentence in these circumstances is a very cruel exercise. It creates a sense of hopelessness in prisoners requiring medical care and makes them very difficult to handle.

To use a life sentence in all cases dilutes the very overwhelming nature of the penalty. It is said sometimes that a judge cannot sensibly decide at the trial how long a defendant should remain in custody. He cannot foresee how the defendant will behave, how much remorse he will suffer, how much he will deteriorate physically and mentally, and how treatment will succeed or fail. There is much truth in this view. In many cases the flexibility of a life sentence will be justified for those very reasons. But there is another side to that coin.

If, for instance, diminished responsibility is entered as a plea in a murder case, and if the jury find in the defendant's favour that he was suffering from diminished responsibility when he committed the murder, then the judge will have a discretion, a total discretion, as to the sentence. In fact, he will have it in the most difficult and unpredictable of all cases—that of the disordered killer. So why not in the case of the normal person who has killed, for instance, under supreme stress? Why should not the judge have the same discretion?

Diminished responsibility is often put forward now to avoid the mandatory sentence. The limits are stretched, as I know so well from my own experience, to accommodate cases which cry out for a merciful sentence. They are stretched sometimes by the doctors, stretched by the lawyers and, if I may say so, stretched by the judges to achieve a result that all concerned consider a just outcome. Diminished responsibility is not, however, available to an accused person who has a mental disorder but denies that he was the person who committed the offence. If his denial is rejected by the jury and he is found guilty, one is left with the agonising situation where that person has ruled himself out of a psychiatric disposition by the nature of his defence. He has to be given a mandatory life sentence.

The advisory council pointed out what I think is generally accepted within the prison service: that a life sentence makes it very difficult to deal with many prisoners. The indeterminate sentence gives rise to feelings of hopelessness and insecurity. A realistic determinate sentence is far more satisfactory from the point of view of dealing with people who are in prison for the offence of murder. It would surely be far better to recognise now at last that murder is not a homogeneous offence but one of considerable variety. The sentence should surely reflect this fact and a judge should be able to sentence right across the spectrum, reserving life imprisonment for the very worst offences.

I have known judges put on probation people found guilty of manslaughter where the killing was to all intents and purposes murder. A merciful jury found provocation or an element of self-defence in the offence. The jurors were merciful because they knew when they went out to deliberate that if they found the person guilty of murder then the mandatory sentence was inevitable. Many people who have killed in a one-off situation are far less dangerous than a bank robber with previous convictions for violence; many are persons of exemplary character.

If this amendment were to commend itself to the Committee it might well be necessary to place a ceiling on the determinate sentence passed by a judge—say, 20 or 25 years—to prevent excessive sentencing. Anything more than that would then be a life sentence. Lifers in those circumstances could not expect to be released until a much longer period than the present average time had elapsed.

When dealing with the very unpredictable prisoner who at the moment must be given a life sentence because the judge is absolutely unconvinced as to what the future holds for him, the All-Party Penal Affairs Group recommended the introduction of a reviewable sentence, as proposed by the Butler Committee. Those who have a history of mental disorder and yet cannot be compulsorily hospitalised would receive this sentence and the Parole Board would have to review such sentences every two years. In all the circumstances, I would commend the amendment to the Committee. I beg to move.

3.15 p.m.

Lord Morton of Shuna

In our view Amendment No. 52 should not be accepted but Amendment No. 55 should. There should be a right of appeal against the recommendation, but we are not yet discussing that.

The power given to a judge who has heard the evidence to make a recommendation as to the minimum period that should be served is valuable. It is after all only a recommendation which, in appropriate circumstances, can be considered and disagreed with by the Secretary of State. Far from agreeing to proposals for abolishing the power to make such a recommendation, I would suggest that there is a fairly strong argument that the statutory power to make such a recommendation should be extended to all cases in which a life sentence is considered appropriate.

There are occasional cases where a person convicted of a crime other than murder is regarded as so dangerous that the court considers a life sentence proper and intends that the sentence should he very long. But it has no statutory power to make such a recommendation. There are cases where on account of diminished responsibility a person is charged with, or convicted of, manslaughter, in England and Wales, or culpable homicide, in Scotland. In some of these cases the person is on the verge of insanity and highly dangerous. On medical evidence a prison sentence is imperative rather than a sentence to a mental institution. Some of these people are far more dangerous than some of those who are convicted of murder.

It seems illogical that in dealing with that type of case the court has no power to make a recommendation as to what the life sentence should be. One can think of similar cases in regard to other offences where a life sentence is appropriate—for example, rape.

On those grounds I suggest that the amendment should not be accepted. But perhaps the Government will consider the alternative of extending the power to make recommendations. On the other hand, as we have to discuss Amendment No. 55 as well, I would strongly support the view that for murder the life sentence should be the maximum rather than the mandatory sentence. There are many cases of murder where it is quite clear that there are mitigating factors which do not fit into the legal definitions which would allow a conviction for manslaughter or culpable homicide. In this type of case one can often be almost certain that the offender who has never offended before is very unlikely to offend again.

Examples of such cases occur in the family realm where we get the occasional instance of an elderly, possibly deranged, parent or an either physically or mentally severely disabled child being killed by somebody else in the house who, in the circumstances of the killing, cannot be fitted into the culpable homicide or manslaughter definitions. Similarly, one has the cases to which the noble Lord, Lord Hutchinson, referred of the battered wife, where there has been a long history of violence on the part of the victim and the killer decides that she has suffered enough and kills, but not in circumstances where the law allows the defence of provocation.

If a battered wife in the face of violence—at least in Scottish law—suddenly loses control of herself and kills, that would be a situation where provocation would reduce the crime from murder to culpable homicide, but there have been cases where we do not meet the rules on provocation where the battered wife, having been battered for months or years, decides apparently calmly and coldly that the batterer is to die and kills not when she has suddenly lost control. It is that type of case, and the other family situations, that are perhaps the most obvious examples of murder where a shorter determinate sentence would clearly be appropriate.

It may well be that the real problem is in having two categories of unlawful killing—in having the category of murder and the category of manslaughter—and that we should consider whether there should be only one offence of unlawful killing, leaving it to the judge to pass the appropriate sentence. I personally have long held that this is the position, and that it is not possible to divide the almost infinite variety of situations where people kill unlawfully into two rigid categories of murder and manslaughter. I would certainly suggest that the history of the attempt to divide murder into capital murder and ordinary murder shows that that designation did not work. It was very difficult indeed to justify the categories, or to think how they could be more appropriately categorised into two compartments.

Parliament rightly decided that that did not work, and in my view it is probable that Parliament should consider whether the distinction between murder and manslaughter should depart and that we should have one crime of unlawful killing. For those reasons I suggest at this stage that Amendment No. 52 should not be agreed to.

Lord Windlesham

Although I wish to speak principally on Amendment No. 55 I make one preliminary observation on the subject matter of Amendment No. 52. This is to bring to the Committee's attention a recent change in practice as a result of the Handscomb case in the Divisional Court. Trial judges who pronounce sentences of life imprisonment, whether mandatory life sentences for murder or discretionary life sentences in other cases, are now being asked to write to the Home Secretary at the conclusion of the trial in all cases. The facility has existed for many years, but it is now a requirement that the trial judge should write in every case where a life sentence is passed expressing an opinion on the period of imprisonment necessary to meet the requirements of retribution and deterrence.

This period of time, the so-called tariff—which I have always regarded as an unfortunate expression—is needed to calculate the stage in the sentence at which the first review of the case by the Parole Board will take place. That is usually three years before the expiry of that period which is thought to be necessary for the purposes of retribution and deterrence.

The question that arises now is: what is the difference between a minimum recommendation in open court and a private communication which plays such a significant part in determining the period to be spent in custody? I have no answer to that question today, and I doubt whether the Home Office do, but it is something that will require careful consideration in the future.

Turning now to Amendment No. 55, which I support, the mandatory penalty for murder distorts sentencing in homicide cases; it causes indefensible anomalies in the time spent in prison; and it has the effect of diminishing the deterrent effect of what is the most severe sentence permitted by the criminal law. The mandatory life sentence, like so much else in our system of criminal justice, can only be understood if seen in its historical context. So long as capital punishment existed, there was a justification for a mandatory penalty for murder. If murder was regarded as a crime apart, so was capital punishment regarded as a penalty apart. Thus an equation was established and maintained between murder and capital punishment.

Although this equation between capital punishment and murder was severed more than 20 years ago, the legacy of the mandatory sentence still remained. The compromise offered in 1965 was that a conviction for murder should automatically lead to imprisonment for life, and that the courts should have no power to vary the penalty decided upon by Parliament. But life sentences, unlike capital punishment, were not unique. Nor did they mean that the offender would necessarily spend the rest of his natural life in custody.

Ever since the first introduction of the life sentence as an alternative to transportation in the latter part of the 19th century, the Home Secretary had used his discretion to release lifers on licence after what he regarded as an appropriate period spent in prison. I simply make the point now that life imprisonment as a penalty does not stand in any unique relationship to murder, since it is the identical penalty that the courts may impose on conviction for a range of other serious criminal offences including rape, armed robbery, wounding with intent to do grievous bodily harm, aggravated burglary, sexual intercourse with a girl under 13, and arson.

Therefore, what we have here is a penalty no longer unique, which also applies to several other offences— the number of which is being extended all the time by Parliament—with one special quality and that is its indeterminacy. The period of time to be served may be longer than a fixed sentence or it may be shorter than a fixed sentence, and it is consequently, for the reasons I have advanced, wholly misleading to regard the mandatory life sentence as a watered-down version of the previous mandatory penalty for murder—namely, capital punishment.

This brings me to the question: is life imprisonment the most suitable penalty for murder, if it is no longer unique? A number of High Court judges who try murder cases in the Crown Court would prefer the courts to be given unfettered discretion in such cases to impose either a life sentence—if that is merited—or a determinate sentence of imprisonment, or such other disposal as might be considered appropriate in the particular circumstances of the case.

We should recall that the mandatory penalty for murder precludes the court from making a hospital order. There are many people who, having been convicted of murder and sentenced to life imprisonment, after a period of no more than a few weeks are transferred to a special hospital, because of their mental condition. In murder cases the court does not have that power to make a hospital order, as it does in every other conviction including manslaughter.

It was for reasons of this kind that the Butler Committee, which has been mentioned already in this debate, and which reviewed the law on mentally abnormal offenders, put forward as its first choice the abolition of the mandatory life sentence. It recommended that the law should be changed so as to make life imprisonment the maximum, rather than the mandatory, penalty for murder; in other words, exactly what Amendment No. 55 seeks to achieve. The committee pointed out that cases of murder occur which can be adequately dealt with by a determinate sentence, whereas the use of the life sentence in cases that do not really call for it dilute what should be the awe-inspiring nature of this penalty. Conversely, some manslaughters may be of a particularly brutal character, and may be more culpable than domestic murders which have mitigating circumstances.

The alternative, also canvassed by the Butler Committee, is to abandon the distinction between murder and manslaughter, merging the two offences into a single offence of unlawful killing. The noble Lord, Lord Morton of Shuna, and I have discussed this matter in the past, and we are at one that this is the more desirable of the two alternatives.

That, I believe, should be the target. I am not sure this Bill, and the amendments to it, is necessarily the place to achieve it. However, the aim is one that we should pursue if we hope to achieve those virtues which have for so long been sought in this branch of the criminal law: clarity, consistency and accessibility. For once I find myself going further than the noble Lord, Lord Hutchinson of Lullington, and the noble Earl, Lord Longford. It is not often that they can be accused of timidity in matters of penal reform. However, Amendment No. 55 has the effect of making the life sentence a maximum, and not a mandatory, penalty for murder. It is a step in the right direction, and I believe that it is one calling for the support of the Committee.

3.30 p.m.

Lord Denning

I suggest that this is not the occasion on which we should amend the law. The case has been most persuasively submitted by the noble Lords, Lord Hutchinson of Lullington, Lord Morton of Shuna and Lord Windlesham. Throughout the centuries murder and manslaughter have been distinguished in our common law and this is not the occasion on which to merge them together. All through the centuries murder and manslaughter have been defined and they must remain in our common law.

In the days of capital punishment juries used to take a merciful view and, when appropriate, find manslaughter instead of murder. Years ago I tried the case of an army captain who had been nagged by his wife beyond distraction, and he took out his revolver and shot her dead. Clearly in law that was murder but in the circumstances of such provocation the jury found him guilty of manslaughter only. I sentenced him to two years and there was applause in the gallery overhead. There the jury made a distinction between murder and manslaughter and took the merciful view. The distinction between murder and manslaughter must remain in our law until there is something much more comprehensive than this Bill—an offence of unlawful killing, which, I suggest, we cannot deal with now.

If the distinction exists I should like to consider the objects of punishment; the objects of sentencing a criminal to imprisonment. As I have always understood the matter, there are three. First, deterrence; to deter the offender and others from committing the crime again. Secondly, to try to reform him and make him better in the future. Thirdly, and perhaps the most important, retribution; punishment, if you like, but the emphatic denunciation by society of a crime. The judge is the spokesman of society and expresses that emphatic denunciation at the time of sentencing. That is why the judge tailors the sentence to the offence, whether it is two, five, 10 or 15 years. In the length of his sentence the judge is expressing the denunciation of the crime of which the accused has been convicted and saying that he must serve that sentence because it is retribution owed to society for his wrongdoing.

If that is the object of punishment I come to this recommendation. Surely when Parliament inserted that provision they were expressing the feeling of society. Some crimes are so horrible and horrendous that the judge, representing society, should be able to recommend that an offender shall serve at least 15, 20 or 30 years. That is not binding: it is a recommendation which can be reconsidered if circumstances alter. Surely that was a sensible provision to make.

As has been mentioned by the noble Lord, Lord Windlesham, it is now the practice of judges in cases of life sentences to write privately to the Home Secretary suggesting what the term should be. Indeed, I used to do so in capital cases. If it is done privately, would it not be better done publicly so that society can see what the judge feels about the case he has tried and about what the appropriate length of sentence should be? In other words, I am suggesting that the power of recommendation can be tailored to fit the particular case. If the case is such that there are mitigating circumstances then let the recommended term be short. If it is a horrendous case which calls for 25 or 30 years' imprisonment. let the judge say so on behalf of society.

I venture to think that in many of the horrendous cases of which we are aware society would approve a judgment which says, "This crime is so horrible that I recommend you serve at least 25 years". The judge on behalf of society is able to say that, always remembering that the sentence can be measured afterwards and reduced or allowed as the Secretary of State may think fit. In other words, I suggest that the time is not ripe for replacing the old distinction between murder and manslaughter or for altering this clause and that we should let it stand as it is for the time being at least.

Lord Hunt

I should like to speak briefly in support of Amendment No. 52 proposed by my noble friend. I am not sure that drawing upon my experience as chairman of the Parole Board will be of value; but it may be, even though it was 15 years ago. I had the privilege of holding the post for six years. In the light of that experience and on reflection—I noted that the noble Lord, Lord Windlesham, very properly, as the current incumbent forbore from expressing an opinion—I have come to the conclusion that the determination of a date for eventual conditional release on life licence, no matter how heinous the crime (I stress those words) is adequately dealt with through the consultations with the Lord Chief Justice and the trial judge which the Home Secretary of the day, under the Criminal Justice Act 1967, is required by law to follow if the Parole Board makes a positive recommendation.

From that experience—certainly, this was the case in my time—my view is that minimum recommendations made publicly immediately upon the conclusion of a trial have an unduly inhibitory, indeed almost prohibitive, influence on both the Parole Board and, I suspect, though I cannot speak for him, the Home Secretary. Of a number of positive recommendations carefully considered by the Parole Board, which included High Court and Crown Court judges during my years as chairman, I can recall only one case in which the Home Secretary accepted recommendations for eventual date of release made by the board. I cannot produce figures to demonstrate that contrast but my noble friend mentioned some hundreds of minimum recommendation cases over a longer span of years. It follows that during my six years many such cases arose in which we made a limited number of positive recommendations. But in those six years, only one was approved for release.

On reflection, I believe that it is wrong that the question of eventual release on licence should be so largely prejudged publicly in a negative sense at the beginning of what is bound to be a very long sentence rather than according to circumstances which may be very different 10 or more years hence from when the formal review takes place. Such a minimum recommendation, as the noble and learned Lord, Lord Denning, pointed out it should, may well reflect and perhaps satisfy public horror at the time. It may also be deemed to serve some general aim of deterrence. Of course it deters the particular offenders. But I and others would dispute the value of such exemplary sentences for purposes of general deterrence. It may well do a serious injustice to the individual concerned whose attitude and circumstances may have changed quite profoundly.

I make that point because I feel very deeply that the existing arrangements in the statute are quite adequate. Certainly, in my time, the effect was almost prohibitive. That is wrong. Only if there ceased to be a restrictive effect upon the deliberations of the board and the decisions of the Home Secretary would it be right to continue as at present.

3.45 p.m.

Lord Campbell of Alloway

I oppose Amendment No. 52 but only because I favour Amendment No. 52A which the Committee may well think is apt to deal with the problem about which the noble Lord, Lord Hutchinson, spoke so eloquently. I support Amendment No. 55 and if I were to enter the arena of some generic offence of unlawful killing I should walk all the way in the company of my noble friend Lord Windlesham. I am afraid however that I should part company with the noble and learned Lord, Lord Denning.

There are five reasons why I hope that Amendment No. 52A will commend itself to my noble friend the Minister and to the Committee. The first is that there is no appeal against the recommendation. Secondly, there is no consistency as to the circumstances which warrant a recommendation. It is idle to talk about judges being the servants of society if there is no consistency in the manner in which they serve. Thirdly, if my mathematics are roughly right, I calculate that this recommendation is about 95 per cent. effective. Fourthly, if consistency in sentencing is the lodestar of the due administration of criminal justice, Amendment No. 52A is requisite to avoid manifest disparity, is it not? Lastly, the practice of learned judges writing letters to the Home Office is highly desirable and no doubt will continue; but, as the noble and learned Lord, Lord Denning, said—and here again, I shall walk with him if I may—that is no substitute for an appellate procedure as proposed in open court by Amendment No. 52A, is it?

I hope that my noble friend the Minister can approach the problems, which are wholly nonpolitical and emanate from a background of study groups which are in essence non-political, with an open mind, as I am sure he always does. I hope that he will consider the questions on their merits.

The Earl of Longford

It is many years since I ventured to disagree with my own Front Bench. In fact, I do not think I have disagreed with the Front Bench since I was actually leading it. I left on one occasion—

Lord Elwyn-Jones

Did you speak for yourself?

The Earl of Longford

That was on the question of abortion, which is rather aside from our discussion at the moment. My noble friend Lord Stewart reminds me that on questions of defence I have not seen eye to eye with what might seem to be the party line, but I discovered that line to be so generous, if I may put it that way, that I have not been too much bothered in that respect. I can say only that I hope my leaders will remember the old adage, "To understand all is to forgive all" because I want to speak in total disagreement with the line unfolded by our spokesmen just now. In other words, I want to support very strongly the noble Lord, Lord Hutchinson, on the abolition of this power to make recommendations.

Of course, I am a veteran of some of the older discussions. The noble and learned Lord, Lord Hailsham, is a veteran of some of them also, but he adjourned for a time from this Chamber in search of higher prospects. I am glad that he returned. In 1956 he took part in the debates when the House of Lords threw out by a majority of two to one a measure for the abolition of capital punishment, which had been passed on a vote of two to one by the House of Commons. However, in 1965, the House of Lords by a vote of two to one passed an Act to abolish capital punishment. The Labour party line was entirely favourable to that. I have not, alas, thought it right to make contact with the noble Lord, Lord Gardiner, although there is no one in this land for whom I have a higher respect. He was the Lord Chancellor at the time. To the best of my belief, the idea of judges making recommendations would have been most unwelcome to him. It was in fact pressed on the Government. For whatever reason, it was accepted at that time as a concession to the anti-abolitionist opinion, expressed so eloquently and comprehensively by the noble Lord, Lord Boyd-Carpenter, to the Committee last night. That concession was made and has remained. That is history.

As to the Labour Party—not collectively, but in terms of the total membership—99 per cent. of the Labour people whom I have ever known have been against capital punishment and would never have welcomed the idea of this sort of concession.

Let us look at the power to make recommendations, whether we think it is a good or a bad idea. The noble Lord, Lord Hutchinson, has explained the way in which it has worked out inconsistently. One can argue along that line. I think that it is wrong in principle. We were told in a powerful speech by the noble Lord, Lord Wigoder, yesterday, although he is not present in the Chamber now—indeed, it is obvious, but it was well expressed by him—that public opinion is increasingly influencing sentencing policy. Twenty-five years ago I wrote a book called The Idea of Punishment; it is a small book, but I am glad to think that it is still on the shelves of the Criminological Institute of Oxford—I do not know about Cambridge. At any rate, it is tucked away on the back shelves and can be found there. It has stood its ground over the years. In the book I mentioned all the old elements of a just sentence—deterrence, reform, prevention and retribution with, no doubt, a word or two about reparation. I mentioned all the usual things, but I said nothing about public opinion.

Twenty-five years ago it would have been thought rather squalid to begin dragging public opinion into a grave question of human justice, the right sentence and so on. It had nothing to do with public emotions, nothing to do with The Sun newspaper or The Star, which, I am told, has sunk to new depths. I do not know whether it is still taken in your Lordships' House. There are other papers that are getting lower and lower. Indeed, I hope that a Motion is tabled on that subject at some time. As the noble Lord, Lord Wigoder, pointed out yesterday, public opinion on this matter, even more than on other matters, is formed by the tabloid press front pages arousing the utmost hatred against criminals.

We are being asked to say that, when the man has been convicted, with headlines all over The Sun saying, "This is the most evil man in the world", that is the moment at which judges are qualified to say that the man should stay in prison, maybe for ever; at any rate, they are qualified to pass this definitive judgment. When this was discussed originally in 1965 no one thought that it was a definitive judgment but rather some gentle advice to be taken as the case might arise.

If I may pay tribute to the judges—it may he the last that I pay this afternoon—their reputation is so high that what they say becomes a little like the law of the Medes and the Persians. If only they were taken not quite so seriously it would not be so bad, but this becomes the law. As was pointed out by the noble Lord, Lord Hunt, the recommendations are very seldom overturned.

Noble Lords may associate me with one or two particularly well-known delinquents. In fact, the particular people with whom I have been associated for years, rather publicly, are not subject to recommendations so that does not arise here.

I know other delinquents—to use a blunter expression, criminals—who have had recommendations of 30 years. Do we assume that they are to serve 30 years? We all remember when one of our noble colleagues passed a sentence of 30 years on the train robbers. That was thought pretty extreme. Not long after that the parole system came in so that they got out after 12 years, and some of the later sentences were reduced. The idea of actually serving 30 years would have seemed inconceivable, certainly in 1965 when the recommendations were introduced.

Does anybody really think that, as human beings, we are qualified to say that our fellows ought to serve 30 years in prison, whether or not they are dangerous? Of course, if they are dangerous, one may well say that they ought not to come out; if you like, that they are so dangerous that they ought never to come out.

Then we have the Parole Board under the admirable leadership of the noble Lord, Lord Windlesham. Presumably the Parole Board can tell us that the recommendations are pre-judging in practice the decisions of the Parole Board many years ahead. I think that that is monstrous.

I entirely support the recommendations of the noble Lord, Lord Hutchinson of Lullington.

4 p.m.

Lord Roskill

I support Amendment No. 52 in the name of the noble Lord, Lord Hutchinson of Lullington. In the alternative, if the Government will not support that amendment, I shall support Amendment No. 52A and I certainly support Amendment No. 55.

I begin by inviting noble Lords to consider the circumstances in which this power was given to the judiciary. It arose on the abolition of capital punishment in 1965.

It is a strange irony that the noble Lord, Lord Hutchinson, and I should both be speaking in the debate—I see him nodding—for it fell to my lot to make the first recommendation in a very bad murder case in which the noble Lord's eloquence for the defence for once failed. It was a case which, if my memory is right, started even as a committal for capital murder. Two or three years before, that man would unquestionably have been executed. As it was, I was faced with the problem for the first time and discussed with the then Lord Chief Justice Lord Parker of Waddington what the right thing to do was.

In 1965 there was a large body of public opinion still supporting capital punishment and Lord Parker, certainly when I first became a judge in 1962, was one of them. He gradually moved his view round. It was, I believe—and the noble and learned Lord, Lord Elwyn-Jones, the then Attorney-General, will remember this—as a result of a political compromise negotiated by the late Lord Parker, with the noble Baroness, Lady Wootton, which led to this power being given to judges. On the strength of the power being given to judges, Lord Parker supported abolition, supported as it was at that time by a majority of Queen's Bench judges.

That being so, the question arises whether 22 years later that power should be retained. I speak only for myself but I venture to speak after, in my time as a Queen's Bench judge, having tried over 50 murders and in my time with the Court of Appeal having had a very large number of murders through my hands. I am unhesitatingly of the view that this power is outmoded and outdated. I am rather surprised to hear the noble Lord, Lord Morton of Shuna, saying otherwise.

I had the privilege of serving as a first vice-chairman of the Parole Board under the chairmanship of the noble Lord, Lord Hunt. This power is outdated for this reason. When this power was given there was no parole system. Therefore, it was necessary for the judge to have this power not only in the public interest but to give some guidance to the Home Secretary as to how the Home Office ought to exercise its powers to release. There is now no reason for that.

I vividly remember in about 1968 or 1969 discussing with the noble Lord, Lord Hunt, when these cases began to come, as was inevitable, what we were going to do about them. We were in a complete dilemma because we did not want to appear to override the judge's recommendation. On the other hand, as the noble Earl, Lord Longford, said, the judge cannot possibly foretell in 1965 what will be right in 1970, 1975 or 1980. Therefore I should like to see this power go. I have no right to speak for anybody else. I have not asked anybody else. But as one of those who has been concerned with it over a long period, I hope that it will go. If it does not go, then a right of appeal should be given.

It was in the case in which the noble Lord, Lord Hutchinson, and I appeared that the Court of Criminal Appeal, as it then was, decided—if I may say so, quite rightly on the construction of the statute—that there was no right of appeal. That has subsisted ever since, but I have never thought it satisfactory and if the noble Lord, Lord Hutchinson, does not succeed in his main amendment I hope that he will be allowed to succeed with the other.

So far as mandatory life sentences go, I hope that my noble and learned friend Lord Denning will forgive me if I say, as one who is utterly devoted to him and who has learned much from him, that it is a very long time since he tried murder of any kind. To those of us who have tried it or had it through our hands more recently, what has been said by the noble Lord, Lord Windlesham, and others is absolutely right. The distinction between murder and manslaughter has become completely blurred. As I have tried murder, I have often wondered whether the accused would be standing in the dock on a charge of attempted murder or grievous bodily harm if the ambulance had arrived sooner and the man had been got to hospital sooner. It has become so capricious.

In its judicial capacity recently, your Lordships' House has had two very difficult murder/manslaughter cases. One was the somewhat notorious Welsh miners' case in the strike. I say nothing about that specifically beyond that the arguments in that case, to which I listened—I was a party to the decision—convinced me even more that the time had come to abolish the distinction between murder and manslaughter which, to my mind, has been outdated ever since capital punishment was abolished, and that we should have one offence of unlawful homicide.

What will then happen? You will not have to worry about all the complications of diminished responsiblility, provocation and all the rest. Those of us who have had to sum up in these cases know the tripwires that can befall a judge. The burden of proof is one way on diminished responsbility; it is another way on provocation. How do you explain to an innocent jury where both arise, and how they resolve that problem, where there is possibly both diminished responsiblility and also provocation?

I say with regret that the law of murder and manslaughter has got into a mess. This is not the Bill in which to tidy it up, but it should be tidied up soon. It is perhaps a matter which the Law Commission could have a look at. But meanwhile, until it is tidied up, let us try to make such reforms as are necessary. Either let us abolish the minimum recommendation power or, if not. let us give a right of appeal and let us cease to have mandatory sentence.

We can all quote cases. I recall one that moved me very deeply, and I am sure that it moved the noble Lord, Lord Hunt, on the Parole Board. It was the case of a university teacher who had been driven absolutely to distraction by looking after a mongol child because his wife had equally gone almost insane. He put that child in a gas oven. The jury—quite correctly, under the judge's direction—found him guilty of murder. The learned judge. a most humane man, had to pass a life sentence. There was a good deal of publicity about it. The noble Lord, Lord Hunt, and I took steps to see that, contrary to the usual Home Office practice, the case came to the board almost immediately and I believe we had him out in six to nine months, very much improved by a spell in a prison hospital, though any longer period there would have done untold damage.

These are the problems. Nobody wants to keep people in prison. Nobody wants to pass a life sentence unless he has to. In an enormous number of these cases a determinate sentence would be perfectly adequate, and that would leave the Parole Board free to do what it wants to do, when it wants to do it. It is for those reasons that I venture to support these various amendments.

Lord Hailsham of Saint Marylebone

I wonder whether, among this galaxy of experts, this non-expert could add a word or two, because it is a subject to which I have given a good deal of thought. Because of the very percipient and persuasive speeches to which we have listened, nobody could doubt that we are in the presence of a very real problem. The question is not so much whether the problem exists; it obviously does. The question is to identify the exact nature of the problem and then to ask ourselves what to do about these three amendments. I mention three, because I wish to say a word in parenthesis about Amendment No. 52A.

The reason for all this difficulty can be stated in almost two sentences. Parliament has never really grappled with the problem of the distinction between manslaughter and murder. That is the first proposition. The second is that in recent years Parliament has never really defined what it thinks it is doing with the life sentence as such. Perhaps I may deal with the second of the two propositions first.

The life sentence in its present form is not a life sentence at all. It is a misnomer. It is an indeterminate sentence which will not end until something has happened which may vary according to the circumstances in which it is passed. I venture to query whether the life sentence in its present form really has any useful purpose at all and whether one should not, if one wishes to have a sentence of this kind, simply place a duty on the part of the judge to give a determinate sentence of some kind, one way or the other, because then the whole thing would come out into the open. I think it is quite wrong for a judge to write a private letter to the Home Secretary, the contents of which are never known to the public. Justice ought to be open and public wherever possible, and it is possible here.

Secondly, for the reasons which have been given more than once in this brief debate, I do not believe that the system of recommendation in murder cases has any useful purpose, if you once accept that the judge ought to be under a duty to give a determinate sentence and not an indeterminate sentence with a recommendation, even though that recommendation be in public. Let there be a duty to give a determinate sentence and then everybody knows what it is. Then let the convicted man go through the parole machinery as it exists at present, which has justified itself over the years and which came in at a rather peculiar moment of time, as my noble friend Lord Windlesham, and I think the noble Lord, Lord Hunt, reminded us. So much for the second of the two propositions.

The first is that nobody who has studied the history or the development of the distinction between murder and manslaughter could ever believe that it made sense. It happens that I sat and presided in one of the cases which was quoted by the noble Lord, Lord Hutchinson of Lullington, the case of Hyams, on which the noble and learned Lord, Lord Kilbrandon, and the late Lord Diplock, gave dissentient judgments. I ventured there to show some of the wholly illogical origins of the distinction between murder and manslaughter. It was a by-blow originally of the Reformation when King Henry VIII took over the task for the civil courts of retaining the benefit of clergy in felony cases. There then existed felony until comparatively recently. That is how it started.

It was followed by an extraordinary series of judicial legislation cases in which the meaning of the words malice aforethought, ex malitia prepensata or malice prepense, as it was called in various languages, was extended, diminished, confused and always retained in some form. The result is that with certain statutory complications, like the Scottish doctrine which has been introduced of—

Lord Simon of Glaisdale

Diminished responsibility.

Lord Hailsham of Saint Marylebone

—it was introduced in order to mitigate the effect of the Homicide Act 1957. The whole thing is now really a nonsense. There are really only two options. One is to abolish, as has been suggested more than once, the distinction between murder and manslaughter and make a single case of criminal homicide. The other would be to make a totally different distinction like that suggested by the late Lord Diplock in his dissenting judgment in Hyams of limiting murder to cases where there is deliberate intention to kill. I think that the former of those two alternatives is probably correct because murder, even so defined, is not so much a crime as a bundle of different crimes with different degrees of culpability attached to them. But I can quite understand that to divide murders into those where there is an actual intention to kill and those where there is not would be a logical line to defend if one wished to do that.

Coming back to the amendments, I do not believe that they would be acceptable except perhaps as makeshifts. I do not favour the amendment which is immediately under discussion, Amendment No. 52. Amendment No. 52A is much more attractive but I do not particularly like it because I do not believe in the judge's right of recommendation and it only depends upon making that appealable. Amendment No. 55 is also attractive but all the amendments are only makeshifts. Sooner or later we must tackle the real problems which revolve round the two propositions with which I began.

4.15 p.m.

Lord Mishcon

I wish that the Committee were discussing Amendments Nos. 52, 52A and 55 together. I am firmly of the view that they should have been grouped together. We should then have had a very worthwhile debate with something meaningful in any vote that was taken. To distinguish between Amendments Nos. 52, 52A and 55 by way of separate debates seems to me to lead to an inconclusive result.

This debate has been absolutely enlightening in the sense that a very real problem in criminal law was grappled with by those of our noble and learned Members who are most experienced in these matters. An unanswerable case was made for the distinction between murder and manslaughter to go. If that is so, should not the Committee—and I say this with the greatest of deference—remember that the times when we consider a Criminal Justice Bill and it gets into the parliamentary slot are few and far between? Here we are dealing with a Criminal Justice Bill that covers many aspects of crime and punishment and we are possibly—I underline the word "possibly"—content with a debate on whether or not murder or manslaughter should be distinguished. No amendment has been tabled, we shall not be voting on one and an opportunity that possibly will not recur for quite a few years is being missed.

The first practical suggestion that I venture to make to the Minister is one that he obviously cannot answer at this moment. I suggest that on Report we should grapple with this problem of the distinction which should not be there between murder and manslaughter. I should have thought that it was absolutely possible for the Government to make up their mind upon that aspect and, if not, for the Committee to make up the Government's mind for them. As I have said, this is an opportunity, especially after listening to these learned speeches from such experienced judges, which should not be missed. At this stage we must accept that there is no such amendment before us.

I venture to comment upon some of the speeches that have been so forcefully made in the debate. It is a fact that if we are left with the aspect of Amendment No. 52 on its own we shall have nothing at all to put in its place unless of course we have the determinate sentence in all cases, which is what the noble and learned Lord, Lord Hailsham, pleaded for.

One of the difficulties of having a determinate sentence of life imprisonment is, as we know, that if that be so we are virtually leaving someone after he leaves the court of his trial with no hope of redemption except possibly at the end of heaven knows how many years, because the judge has said: "It is life and I meant life." That is one of the problems with which we have to contend.

Lord Hailsham of Saint Marylebone

I wish to interrupt the noble Lord to say that I do not count life as a determinate sentence. When I used the word "determinate", I was using it in the sense of a sentence for a definite number of years. When I used the word "life", I regarded that as indeterminate because only God knows when that will end.

Lord Mishcon

I remember so well Mr. Justice Avery having a shot at taking the part of God and I remember one case for which he was quite famous. He was a hard judge and was known to be such but he dealt with a wave of crime in his own way. On one occasion he sentenced a man who had been before the courts on many occasions and who was 68 years old to 20 years' imprisonment. The man said from the dock: "But, my lord, I won't live that long." To which the learned judge replied: "Do your best, my man." So if we make a determinate sentence and there is no life sentence quite obviously some judges moved by the severity of the crime and the circumstances of it may impose a very long term. But I do appreciate that that would be subject to appeal.

With great respect to the noble and learned Lord, Lord Roskill, it is the judge at the trial who hears all the evidence, who sees the accused, who has gone into all the facts at the time and who has heard all the speeches that could be made in favour of the accused who should decide the original sentence subject to a question of appeal. He should decide that and not the Parole Board.

I have one anxiety but I need not go into it now as it has already been dealt with by those more eloquent than I shall ever be. My anxiety is that the custom of private recommendation must be wrong. A man is entitled to know what is said against him and those representing are entitled to make their representations knowing what the recommendation is. That is true. However, the custom of the Parole Board or the Home Secretary regarding themselves as in any way bound in this machinery by the judgment and the sentence of the judge which was made at the time of the trial should go. The Parole Board walks in, as it were, and has a look at what has happened to the man after the trial. It is the Parole Board that can consider on the reports that it has whether the man has truly repented after he has made some kind of retribution to society and after he has been punished. One hopes then that the rehabilitation process has taken place and that the Parole Board can decide whether securing the safety of society and giving a man a chance can be matched if it acts in a merciful way.

I ask the Government first to see whether it is not possible in the Bill to clear up a matter which warrants clearing up in a Criminal Justice Bill. Secondly, until that has been done—we shall hear more about that later— we must keep the judge's recommendation which is made openly. But I once again ask that it be common custom as from now that the Parole Board and the Home Secretary do not regard themselves in the machinery that takes place as being bound by this recommendation in any way other than as looking at the situation as the judge saw it at the date of the completion of the trial.

The Earl of Caithness

On Amendment No. 52 the noble Lord, Lord Hutchinson of Lullington, argued that the judge's power to recommend a minimum term to be served when a life sentence is imposed for murder should be abolished.

The essence of the noble Lord's argument is that minimum recommendations are made haphazardly and are therefore unfair. I do not entirely follow the noble Lord in that argument. The minimum recommendation is a device which is available to judges when they wish to mark the particular seriousness of a murder. Although all murders are serious (which is why society requires that the most severe penalty be imposed) some are especially abhorrent. The judge has available to him a means of saying, "This is an appalling murder; although this person's eventual release from prison will depend on a whole range of factors, a clear marker must be laid down now about the gravity of the offence". I think that is a very proper thing for the judge to say.

We have in this Committee already debated a number of issues which go to the very fundamental question of public confidence in the criminal justice system. Here we are dealing with the most serious issue of all—murder. Murderers must be properly punished and must be seen to be properly punished. Neither the potential murderer nor the man on the Clapham omnibus should assume that life means eight or nine years, whatever the circumstances of the offence.

The noble Lord, Lord Hutchinson of Lullington, argued that prisoners serving a minimum recommended period were at a disadvantage because the Home Secretary was unlikely to release them before the expiry of that period. That is not so, because the judge's recommendation, or lack of recommendation, is not the end of the story. Indeed, the noble and learned Lord, Lord Roskill, gave one example of just why that is not so.

In every case, whether or not a minimum recommendation was pronounced, the trial judge is asked for his view on the period which ought to be served to reflect the relative gravity of the offence. So every lifer has a tariff, irrespective of any minimum recommendation. In most cases, prisoners are not released before the expiry of the minimum recommended period. But that is scarcely a matter for wonder. It would be far more worrying if the Home Secretary's view and that of the trial judge were frequently out of kilter. Nevertheless, there have been a few cases in which a release date has been fixed earlier than the expiry of the minimum recommended period. That demonstrates that the minimum recommendation is not followed slavishly when there is good reason to depart from it.

Before I turn to the details of Amendment No. 55, perhaps I may answer two points. The noble Lord, Lord Morton of Shuna, suggested that the trial judge should be required to make a minimum recommendation in all cases. The idea was explored some years ago in the Scottish context.

Lord Morton of Shuna

May I interrupt the noble Earl? I was not suggesting that. I was suggesting that the power to make a recommendation should be there in the circumstances in which a life sentence was pronounced in non-murder cases.

The Earl of Caithness

I am sorry that I misunderstood the noble Lord. In that case, I shall have a look at what is said in the Official Report and return to that point at a later stage.

My noble friend Lord Windlesham asked about the relationship between the minimum recommendation and the tariff established by the Home Secretary in consultation with the trial judge shortly after sentence. I gladly acknowledge my noble friend's point that new procedures announced by my right honourable friend in the light of the Handscomb judgment bring the making of a minimum recommendation and the tariff-setting exercise close together in time. The new procedures were only introduced on 1st October of this year and this is an aspect which will need to be kept in view. I am grateful to my noble friend for making that important point.

I turn at this stage to Amendment No. 55. As the noble Lord, Lord Hutchinson of Lullington. has said, the Criminal Law Revision Committee said in 1980 in its report on offences against the person that it was, deeply and almost evenly divided on this issue". Although the majority of Members of the Committee who have spoken have spoken for the amendment, I sense that opinion is divided on the matter. I believe that that is the feeling of society as a whole, and to me that is the nub of the matter. The arguments on both sides are familiar to the Committee. I do not propose to repeat them.

Several noble Lords have argued the case for change sincerely and persuasively. I respect those views; I believe that their arguments have a certain force. I doubt whether their arguments are sufficiently compelling to justify what would be regarded as a radical upheaval of our procedures for dealing with murderers. Despite the differences of views held on this issue, I do not believe that the present arrangements are widely considered to be unsatisfactory. To depart from them would be what the Criminal Law Revision Committee called "a leap in the dark". That would be a risky course leading to uncertain rewards.

I agree with the noble and learned Lord, Lord Denning, that murder is a uniquely serious offence. Society demands that it be marked out as such. At present, the current law has the advantage of simplicity and clarity: if you commit murder, you are sentenced to life. Everybody knows that. It is a deterrent to the violent criminal and a reassurance to the innocent citizen. I think that many people would be very worried by a departure from that position.

This has been a useful debate and we have had the benefit of powerful arguments from my noble friend Lord Windlesham and several other Members of the Committee. The Committee will have gathered from my remarks that the Government have some difficulty in being receptive today to the changes that lie in these amendments. I should go further and say that we also have some difficulty with Amendment No. 52A.

Irrespective of merits, I agree with the noble and learned Lords, Lord Denning and Lord Roskill, that now is not the moment to disturb the existing arrangements. My noble and learned friend Lord Hailsham has said that the matter needs further discussion. Clearly the role of the Home Secretary must be considered and I support the noble Lord, Lord Mishcon, in saying that that matter should be looked at on Report. At that stage, we shall have the advantage of the views of my noble and learned friend the Lord Chancellor.

To press this matter to a Division now would, in the words of my noble and learned friend Lord Hailsham, be enacting a makeshift amendment. I am sure that the Committee would not wish to do that on such an important matter. This has been a most useful and well-informed debate. I hope that the sponsors of Amendments Nos. 52, 52A and 55 will withdraw them so that further consideration can be given to the matter between now and another stage.

Lord Mishcon

Before he sits down, will the noble Earl also undertake to consider—and I only say "consider"—the question of including in this Bill a provision which allows the crime of unlawful killing to cover both murder and manslaughter as it now exists?

Lord Hutchinson of Lullington

Perhaps I may also ask the Minister, before he sits down, whether he will deal with the matter, which has been universally condemned by all speakers, of private communication by the judge to the Home Secretary in relation to a minimum period of sentence.

The Earl of Caithness

I feel that both those matters should be looked at between now and another stage. Those are wide and complicated matters and I am sure the Committee would not wish to move to a hasty decision which might be regretted later.

4.30 p.m.

Lord Hutchinson of Lullington

This has been a very rewarding debate. I hope the Minister has heard the weight of opinion expressed by the noble Lord, Lord Windlesham, the noble and learned Lord, Lord Roskill, and the noble Lord, Lord Hunt, and has taken into account the views of the late Lord Butler as they were expressed by him in previous years and that all these will have a profound effect on the Minister between now and the next stage of this Bill. I should have liked to include the views of the noble and learned Lord, Lord Hailsham, who, having spoken with great passion in favour of abolishing the right to make a recommendation in a somewhat typical and quixotic way, then expressed the view that he would not support the amendment, which does exactly that.

Nevertheless, it is a sadness to hear the noble Lord, Lord Morton of Shuna, for the Front Bench of the Labour Party, being allowed, in spite of strong representation on the All-Party Penal Affairs Group, to take a different view from those members of his party who support that group. It is noticeable that no member of the Front Bench belongs to the group, but perhaps before the next stage of this Bill they will be converted.

The Minister says that the virtue of the recommendation is that it puts down a marker in the most heinous cases. I need only mention the Moors murder case. The whole point is that the learned judge did not put down a marker and the whole essence of this amendment is that judges do not put down markers. Some do and some do not.

Having heard the views expressed, it seems to me that the wise course to take here is not to press either of these amendments to a Division; but perhaps all of us can think clearly as to what views we shall put forward at the next stage of this Bill. I sincerely hope that the Government will come forward with something of their own. If not, at that stage further amendments will be put forward which I hope will encapsulate some of the views that have been expressed today. For the moment, I shall withdraw both amendments.

Amendment, by leave, withdrawn.

Lord Beaverbrook

I think this would be a convenient moment to take the Statement. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

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