HL Deb 06 November 1989 vol 512 cc448-530

3.47 p.m.

Lord Nathan rose to move, That this House takes note of the report of the Select Committee on Murder and Life Imprisonment (HL Paper 78).

The noble Lord said: My Lords, I beg leave to move the Motion standing in my name on the Order Paper. In July 1988 the committee whose report is being debated today was established to consider three separate but related matters: the scope and definition of the crime of murder in England, Wales and Scotland; the question whether life imprisonment should remain mandatory rather than a maximum penalty for murder; and the arrangements for reaching decisions on release of those serving life sentences for murder.

We appointed as our specialist advisers Professor J. C. Smith, QC, and Professor A. K. Bottomley. I take this opportunity to express our gratitude to them for the great assistance they gave us. Tom Mohan was Clerk to the Committee, and I and all members of the committee are most grateful for his help throughout our study. The committee included some lawyers with experience of the criminal law and some with little or no such experience. Other Members had experience of the penal system and the system of parole. Others had wide experience of public life.

The members brought to bear their varied knowledge and experience. We held 32 meetings and a total of 81 witnesses submitted evidence to us which was exceptionally varied and well-informed. We made six visits, including three days spent in Scotland. We visited four prisons in England and several of us visited panels of the Parole Board of England and Wales which were considering life sentence cases. We had the benefit of studying earlier reports by experts. We owe a particular debt of gratitude to the 14th report of the Criminal Law Revision Committee which dealt comprehensively with the first and second items of our terms of reference.

Since the publication of that report new matters have arisen for consideration. We widened the range of inquiries previously undertaken and touched on matters that we regarded as important, some of which have scarcely been considered hitherto. We sought evidence from organisations representing the families of victims of murder. We considered the law of murder and sentencing policy for murder in other countries. I take this opportunity of thanking the secretariat of the Council of Europe for co-ordinating replies from member states to a questionnaire we prepared. We obtained evidence on the impact of the European Convention on Human Rights, by which the United Kingdom is bound, on present and future law and practice.

Our terms of reference required us to study the law and its application. But such a study cannot be carried out in isolation from the human and social context to which they relate. The evidence we received from those representing the families of victims of murder drew attention to their concern over how the law is administered. We believe that their situation should be taken into account. The criminal justice system should not neglect the human tragedy which lies behind each case of murder.

I now turn to the scope and definition of the crime of murder in England and Wales and in Scotland. Murder in England and Wales and in Scotland has always been a common law crime, and there have always been differences in the definition in Scotland on the one hand, and in England and Wales on the other. The evidence we received relating to Scotland was overwhelmingly that the common law definition was found to be satisfactory, and strong views were expressed that it should remain unchanged. Accordingly, we recommend that no change should be made.

Evidence as to the position in England and Wales, however, revealed that for some years there has been an element of uncertainty. Our overriding concern has been to establish a clear and readily comprehensible definition of murder. We have concluded that the time has come when the crime of murder in England and Wales should be defined, as a great many crimes already are, by statute, and that that definition should take the following form. A person is guilty of murder if he causes the death of another intending to cause death or intending to cause serious bodily harm and being aware that he may cause death.

The words, and being aware that he may cause death", represent a change in the law and reflect our view that a person should be liable to conviction for murder only if the possibility of death was foreseen. This definition is on the lines proposed by the Law Commission in its recently published draft criminal code. We have noted that a person is not generally liable to conviction of a serious crime where the prohibited result was not only not intended but also unforeseen. We believe that this is a good rule of moral responsibility which should certainly apply to the most serious form of homicide, murder. If our recommendations are accepted there will continue to be a difference between the definition of murder in Scotland and in England and Wales. This has not hitherto created a difficulty and we do not consider that it will in the future. By contrast, we consider that the same provisions should apply in both jurisdictions to the penalty and its administration.

The common law definitions of murder in Scotland and in England and Wales are both broad definitions encompassing a wide range of homicides. The statutory definition for England and Wales which we propose is likewise broad. Murders falling within those definitions differ so greatly from each other that it is wrong that they should attract the same punishment. The gravity of a murder depends on so many circumstances that any attempt to select one or two of them to put the murder into a special category leads to unacceptable anomalies. The right way to deal with the problem is not to divide murder into degrees but to give the judge a discretion to impose an appropriate sentence taking all relevant factors into account. We recommend the abolition of the mandatory life sentence for murder in England and Wales and in Scotland. This recommendation was supported by a great majority of our witnesses in England and Wales, including the Lord Chief Justice, who will, I understand, participate later in this debate, and 12 senior judges. It was also supported by representatives of murder victims, who believe that the existence of the mandatory sentence has led to inappropriate verdicts of manslaughter.

In the past some have been concerned that, in the absence of the mandatory life sentence, too lenient sentences will be imposed and that there may be inequality in sentencing for similar crimes. The recent enactment of provision for the prosecution to appeal against too lenient sentences provides a safeguard and is likely also to lead to the establishment, in cases of murder as for other crimes, of a measure of uniformity in sentencing. If such provisions for appeal were made applicable to Scotland where they do not presently apply, that might overcome the reluctance of some there to see the mandatory life sentence go. Evidence we received was unanimous that the same penalties must apply either side of the Border.

We expect that abolition of the mandatory life sentence would result in a substantial increase in the average length of time actually served in prison under a life sentence and would thus restore the life sentence as the most severe sentence which may be awarded. We propose that a life sentence should be awarded either because of the heinousness of the offence or because of risk to the public on release at the end of a fixed term. We recommend that in awarding a life sentence the judge should specify for which of these two reasons he is awarding the life sentence.

Life imprisonment does not normally mean imprisonment for the remainder of the prisoner's life. We were gravely concerned that the present system for administering a life sentence gives Ministers inappropriate powers to determine the length of time actually to be served in prison by lifers. It is unnecessarily secretive and has grown up piecemeal over many years. It represents a confusion between the proper functions of Ministers and the judiciary and has led to devaluation of the life sentence. Effectively, the Executive —the Minister —has the power to decide the term of detention in life imprisonment cases, with consequent risks of political influences in sentencing. Sentencing in all other aspects of criminal law is a judicial function. Our recommendations are designed to bring the administration of a life sentence for murder into an entirely judicial context.

We recommend that in every case the judge should specify in open court the period he considers appropriate to satisfy the requirements of retribution and deterrence, which we call the penal sanction. The penal sanction should be subject to appeal by either side. It should not be subject to revision by Ministers. The penal sanction should attract remission and parole eligibility in the same way as a determined sentence —a sentence for a fixed term of years. Its duration will thus be, and seen to be, comparable with a determinate sentence. The judge will apply similar criteria in determining the penal sanction and the term of a determinate sentence, in respect of which he is not permitted to have regard to remission or parole, and will assist in management within prisons.

The decision at the end of the penal sanction as to release or continued detention of lifers should be made by a judicial tribunal composed of a High Court judge, a consultation psychiatrist and a chief probation officer and should be entirely independent of the Executive. The present system of release on licence for life should continue as should the Home Secretary's power to order recall of a licensee, although such recall would be reviewed by the tribunal.

In making these proposals we have borne in mind the provisions of the European Convention on Human Rights and the valuable evidence we received from Professor Trechsel, second vice-president of the Commission.

We were charged with the duty to consider and report on three matters: as to the definition of murder; as to the mandatory life sentence; and as to the arrangements for release —each of which could have been the subject of a separate report. Indeed, we address each of those issues separately, yet they are closely linked. Therefore, I hope that our report will be considered as a whole. I also hope that our conclusions and recommendations will commend themselves to your Lordships. It has been a privilege to have been chairman of this committee. I beg to move.

Moved, That this House takes note of the report of the Select Committee on Murder and Life Imprisonment (H.L. Paper 78). —(Lord Nathan.)

4.2 p.m.

Earl Ferrers

My Lords, the House will be grateful to the noble Lord, Lord Nathan, for having introduced the debate and given your Lordships the opportunity to discuss the recommendations of the committee which sat under his distinguished chairmanship. It produced a report which contained thoughts and proposals which will have far-reaching significance. It is only right that your Lordships should have the opportunity to discuss it.

I thought that it might be helpful if I were to speak early in the debate to offer some general observations on behalf of the Government on the Select Committee's report. I do not propose, as your Lordships would expect, to offer any conclusions. It is only a few weeks since the committee reported and it would be an impertinence towards it if the Government had already made up their mind as to what action they would take.

The recommendations for change are pretty substantial and are not uncontroversial. As far as the Government are concerned, the whole object of today's debate—indeed, the whole advantage of it —is to listen and to hear what your Lordships have to say. This will help to guide us in deciding on the actions which should be taken and which should be proposed to Parliament.

If I speak by leave of the House again at the end of the debate, it will be not so much, as it were, to answer the debate but more to clear up any points of concern or to answer any specific questions which your Lordships may raise. Therefore, I shall listen with interest to what your Lordships have to say.

I should at the outset like to thank and congratulate the noble Lord, Lord Nathan, and his colleagues on the committee for all the work which they did on a highly technical and very sensitive subject. Their report is clear and comprehensive. No one can accuse it of being stuffy. Behind every recommendation there is careful consideration of what are very difficult and delicate issues.

It is worth while recalling why the committee was set up. Two years ago your Lordships debated the Bill which was to become the Criminal Justice Act 1988. During the debate several noble Lords expressed concern about the effect of the mandatory sentence of life imprisonment for murder and my noble friend Lord Windlesham suggested that a Select Committee should be set up in order to review the definition of murder, the mandatory life sentence and the arrangements for the release of life sentence prisoners.

The committee's remit extended to the law and practice both in England and Wales and in Scotland. The committee benefited, as your Lordships would expect, from the advice of noble Lords of Scottish extraction.

The committee's recommendations are different for the two jurisdictions, as we might expect, reflecting the weight of evidence that those who live under and practise the law in Scotland seem to consider that they are by and large happier with its results than are their counterparts in England and Wales. I think that on this occasion it is more than just a normal manifestation of territorial contentment.

I should like to say something about each of the three parts of the committee's terms of reference. First, there is a question of how the offence of murder itself is to be defined. In most cases murder is murder. One person kills another one, and intended to do so. It is a heinous offence showing total disregard for the sanctity of human life.

However, some murderers may be less to blame for this terrible deed than are others. The law recognises a defence of provocation where the killer is so provoked by his victim that he loses self-control. Nor will a man be convicted of murder if because of abnormality of mind his responsibility is diminished. The important practical consequence of this is that for manslaughter the judge has the option of giving a determinate sentence instead of the sentence of life imprisonment which for murder he is obliged to give.

The committee showed in the report that in England and Wales, following a series of judgments in your Lordships' House, the law is reasonably clear. This, I note with deference, is the view of the noble and learned Lord the Lord Chief Justice of England. He said that the law is now clear and right and that it should not be changed. It is murder to kill by an act which is intended to kill or to cause serious bodily harm. A result is intended when it is the defendant's purpose. But the noble and learned Lord said that if the defendant foresaw that it was virtually certain that death would be caused by his act, although his foresight cannot amount to an intention to kill, it is evidence from which an intention to kill may be inferred.

The matter is different in Scotland. There the common law provides that it is murder to kill whether it is with intention or with "wicked recklessness". Wicked recklessness brings within murder cases which many of us would count as murder. The committee of the noble Lord, Lord Nathan, observed that the Scots are happy with their legal definition of murder and concluded, wisely enough, that it would be better left alone.

While leaving the common law in Scotland untouched, the committee would therefore in England and Wales wish to see murder defined in statute following the recommendations of the Law Commission. The effect —indeed, the intended effect, if I may put it like that —would be that, where death resulted from a criminal act which was intended to cause serious personal harm and where the defendant was aware that death might result, he would be guilty of murder. But the defendant would not be guilty of murder if he had not foreseen that death would occur, even if perhaps he should have done. Instead he would be convicted of manslaughter. So says the committee.

Nor would it be murder, the committee suggests, if his intention was, for instance, just to cause the fear of death or the fear of injury, as a terrorist might claim in his defence, unless the prosecution could show that he actually intended serious personal harm and that he knew that death might result. A terrorist, for example, who planted a bomb, might say that he had confidently expected the area to be cleared before it went off. The committee would have such a terrorist convicted only of manslaughter, where he would still be liable to imprisonment for life. The committee argues that it is stretching the meaning of murder too far to make it cover those kinds of cases.

For my part I am not sure. Nor am I sure that a statutory definition of murder would do the trick and could stand the test of time. I shall be interested to hear what your Lordships have to say.

Perhaps I can come to the second part of the committee's report, which considers the penalty for murder. At present a sentence of life imprisonment is mandatory for anyone who is convicted of murder. The committee's report explains how that position was arrived at during the debates on the Murder (Abolition of Death Penalty) Bill in 1965.

The Act followed the uncomfortable position which obtained during what one might call the reign of the Homicide Act 1957 where, as I had occasion to remind your Lordships the other day, the late Lord Conesford highlighted the inconsistency and unacceptability of the situation by saying: If you wished to dispose of your wife and not suffer the penalty of death you must not shoot her or drown her, but you could stab her, strangle her, poison her or set her on fire and you would get away with it". That position of law was considered so indefensible that eight years later Parliament replaced the Homicide Act 1957 with the Murder (Abolition of Death Penalty) Act of 1965.

A number of possibilities were proposed to the Select Committee by witnesses. They included abolishing the sentence of life imprisonment. The committee considered all those possibilities but concluded that the life sentence for murder should become discretionary rather than mandatory. It should, in the committee's view, be the responsibility of the trial judge to decide the most suitable sentence when someone is convicted of murder. The committee indicated that that recommendation was supported by a considerable body of judicial opinion, including the noble and learned Lord, the Lord Chief Justice.

Sentencing criminals, particularly for grave crimes, is an awesome responsibility, and we shall need to consider carefully the views of those in the courts who carry that responsibility.

If that recommendation were to be accepted, life imprisonment would become not the only but just the maximum penalty for murder, as it is for other very serious crimes, including manslaughter and rape. The main argument for having life imprisonment as the maximum, rather than the only, penalty for murder is that the offence of murder varies considerably in its nature and in the culpability of the offender. The sentence, goes the argument, should reflect those differences, as it does for other offences. The courts would be able to make a hospital order after a murder conviction, when that is appropriate, which they cannot do now.

The report sets out a number of arguments which have a bearing on that problem. They include retribution, deterrence, the protection of the public, the difficulty of arriving at a suitable length of sentence in a determinate sentence and public confidence as a whole in the criminal justice system. There is no need for me to repeat them and we shall all want to consider them very carefully.

The discussion of whether the sentence of life imprisonment should be mandatory or not is sometimes carried on as if the only form of retribution is the number of years which a murderer spends in custody; but if people who are sentenced to life imprisonment are eventually released they are released on licence. They are liable to be recalled at any time. That liability remains until the end of their life.

That is a very different outcome when compared with those who receive long but nevertheless determinate sentences of imprisonment. They may not be granted parole but eventually they are released and they are at full liberty. The sentence of life imprisonment, on the other hand, is a lifelong surrender of full liberty. Many people would regard that as a proper retribution for culpably taking the life of another person and also quite a constriction of liberty.

Of course one of the aims of sentencing is often said to be the formal expression of public abhorrence of a crime. Some people may recognise that the circumstances of murders will vary considerably. They may accept that the punishment of the offender should differ according to the circumstances. Nevertheless they feel that murder is a uniquely heinous crime and that a mandatory sentence of life imprisonment is a proper and justifiable expression of public repugnance towards anyone who has intentionally taken the life of another.

The committee recommends that when a life sentence is given the judge should specify the period of years which he considers necessary for retribution and deterrence. The noble Lord, Lord Nathan, reminded us that it calls that the "penal sanction".

The committee has recommended that during the period of penal sanction all life sentence prisoners should be eligible and should be considered for parole as though they were serving determinate sentences of that period and thereafter they should be considered for release solely on the basis of risk. Your Lordships will know that the Government have been considering the report on the parole system from the committee chaired by my noble friend Lord Carlisle of Bucklow. You will appreciate that the action which is taken on his report will in part influence our response to this recommendation.

I do not think that we can pretend, or that we can ask the courts to pretend, that a life sentence is similar to a very long fixed sentence. It is not. At the end of a fixed sentence a man is totally free. At the end of a life sentence he is always on licence.

Some may take the view —I know that some of your Lordships do —that all sentences should be fixed sentences and that the life sentence should be abolished; but we should be in no doubt that that would be a major step indeed. It is not one which would be likely to endear itself to the public, which is increasingly apprehensive about the continuing rise in crimes of violence. I fancy that there would be many eyebrows which would move smartly in an upward direction if it were realised that the act of murder may attract neither the death penalty nor life imprisonment but merely a pre-determined number of years in prison.

The committee's proposal to replace a mandatory life sentence for murder with a discretionary one would have far-reaching implications for the review and the release of life sentence prisoners. The arrangements for that in Scotland differ from those in England and Wales. Your Lordships will understand if I base my detailed comments on the arrangements south of the Border.

The committee has drawn attention to the two principal facets which govern operation of the system: the period for punishment and deterrence, which has come to be known as the tariff, and the evaluation of risk. The Government have always made it clear that the tariff is merely a means to an end. It is a mechanism for fixing the first review date.

The committee has recommended that the previous informal role of the tariff, which it calls the "penal sanction", should be formalised. When a judge passes a life sentence the committee says that he should specify his reasons and should state in open court the period for which the criminal should be detained in order to satisfy retribution and deterrence —whether we call that the penal sanction or the tariff. It says that that would provide an opportunity for pleas in mitigation and ultimately for appeal by either the prosecution or the defence.

The committee's proposal would have the advantage that the life sentence prisoner could hear all the arguments and could know why the review date has been fixed for a particular time; but there are also disadvantages. For example, at present no prisoner goes beyond 17 years before his first review, even though that may well be many years before the judge believes that the period for retribution and deterrence would have expired. From then there are regular reviews until release is authorised, if it is. That gives the life sentence prisoner something to work towards.

The Select Committee has drawn attention to the fact that the timing of the first local review committee in a murder case is decided by Ministers rather than by the judiciary. Although at present the judiciary advises on that decision, it is for the Minister actually to make it. The committee proposes that the penal sanction should be announced by the judge in court and that it should be binding on Ministers. We cannot though consider that recommendation separately from other recommendations. Next year the European Court of Human Rights will consider how far discretionary life sentence prisoners may be entitled to have their cases reviewed, not solely by the Parole Board and Ministers but openly by an independent body with powers to order their release.

In considering the Select Committee's recommendations we will have to take account of how the European Court interprets our obligations under the European Convention on Human Rights.

Any Home Secretary considers with awe his fearful responsibility for authorising the release back into society of one who has been imprisoned for having committed murder. That is a huge responsibility, with the necessity to weigh humanitarian conditions against the need to protect the public, for these men and women, and sadly sometimes even children, have committed the most terrible offences of taking life or they have shown that by their actions they may be a continuing risk to society. Inevitably, and with hindsight, some of those decisions have not always proved to have been right.

The Select Committee has recommended that the Home Secretary should no longer have this responsibility. Instead these decisions, which must command the highest public confidence, it says, should be taken by a three-man tribunal comprising a High Court judge, a consultant psychiatrist and a chief probation officer. Those who advocate a change of this nature will have to weigh up the advantage of sharing the awesome and singular responsibility of decision-making with the disadvantage of corporate and diffuse responsibility. There is a flavour here of the safety in numbers argument.

At present the Home Secretary benefits from the advice of the Parole Board on every life sentence case. Parole Board panels considering these cases will always include a member of the judiciary, a consultant psychiatrist and a chief probation officer. So today the Home Secretary has the benefit of expert advice of the sort which is proposed by the Select Committee.

The Government will listen with interest to the views of your Lordships and others on the proposal that the Home Secretary should no longer take personal responsibility for releasing those who have committed murder but that he should instead delegate it absolutely to three independent members of a tribunal. That would be a break with tradition and practice which have been in existence and which have served the country well for very many years.

Part of this recommendation for a tribunal deals with important aspects such as the disclosure of the reports which are written on life sentence prisoners and the giving of reasons for refusing to release them. At present neither the Home Secretary nor the Parole Board gives reasons for their decisions either in parole cases or in considering life sentence prisoners.

The committee of my noble friend Lord Carlisle has recommended that for parole the Parole Board should give its reasons when it refuses to grant parole and that the prisoner should be able to see the reports on which his parole decision is based. Clearly once again the recommendations of the Select Committee will have to be considered in the light of our response to the recommendations of my noble friend Lord Carlisle. Again the Government will listen with interest to what your Lordships have to say on this but you will recognise that the requirement to disclose reports can create problems in the preparation of the reports, possibly leading to a modification of what the writer might really wish to say.

These reports lie of course at the root of the judgment of risk which is involved when the release of a prisoner is being considered. These are important judgments because they affect public safety. We must be sure that any advance down the road of openness will not at the same time inadvertently undermine the integrity of the reporting process and could not jeopardise the ability to evaluate the risk properly.

Perhaps I could turn to a recommendation from the committee which I personally regard as very important: that there should be a formal mechanism for informing the families of the victims of the release arrangements. I am glad that the Select Committee made this recommendation. In a society where regrettably violent crime has become too frequent, we all too often concentrate on the fate of those who are found guilty, without sufficient attention being paid to the needs of those who have suffered grievously from their actions. No one can bring back a loved one. No one can repair the damage or mental trauma of rape or violent assault. We must try to ensure that the victims are not forgotten.

I have tried to give your Lordships what are no more than a few observations on some of the problems which the committee of the noble Lord, Lord Nathan, has unearthed. In an empirical way we all think that we know what murder is and we all think that we know what to do with murderers. But when we come to investigate the detail we find that we are pulling apart an intricate web of practice, law, judgment, responsibilities, humanity and sentiment. The conclusions are not easy.

I would like to thank the noble Lord, Lord Nathan, for having immersed himself and his committee in the web and for having pulled apart some of the strands. It gives us all the opportunity to think, and to think afresh, and that is no bad thing. The House will be grateful to the noble Lord not only for having chaired this committee but for having introduced the debate this afternoon and given your Lordships the opportunity of discussing its recommendations. I can only repeat that the Government look forward with interest to hearing what your Lordships have to say.

4.25 p.m.

Lord Mishcon

My Lords, perhaps I may at once join with the Minister in expressing appreciation to the noble Lord, Lord Nathan, and the members of his committee for the wisdom that they have shown, for the thoroughness that they have exhibited, and for the speed with which they finished their report. They were given their terms of reference and were appointed in July last year. They succeeded in presenting their report, which is now being debated by your Lordships, in 12 months. That is a meritorious accomplishment which may well be copied by future Select Committees of your Lordships' House.

Having said that, I wish at once to enbark on what, as your Lordships will appreciate, is a purely personal appraisal of the report, in the hope that my humble views, expressed from this Dispatch Box, may be of some interest in the debate in which so many learned judges are participating, with a great deal more wisdom than ever I shall possess.

I start with a word of regret that at the outset of the report the committee had to say that its terms of reference did not allow it to consider whether or not, in the definition and scope of murder, there should be one offence of culpable homicide. It is a matter of deep regret that in a thorough investigation of the subject this important matter could not be considered. I take a degree of personal blame which I ask your Lordships to share in that when we were told the terms of reference some submission was not made that there should also be consideration by the committee of the important topic of whether one crime of culpable homicide should exist. There are points for and points against, but it is an omission which I personally regret.

I turn to a consideration of the committee's findings on the scope of murder and the definition of murder that ought to obtain in England and Wales and in Scotland. I emphasise the latter in order to make clear certain points. It has been said —and the weighty voice of the noble and learned Lord, the Lord Chief Justice is behind the observation —that our law is now clear on the subject of murder. I wish that our history in regard to precedents, by way of definition of the law of murder, were clearer and more meritorious than it is, so that one could conclude that the end of the road in definition had been reached in accordance with our precedents. It is not a very good history.

For example, on the subject of guilty intent —known by the learned lawyers as mens rea—your Lordships' House decided in 1960 in the case of the Director of Public Prosecutions v. Smith that it was not a subjective test which had to be administered but the objective test of the reasonable man. The Criminal Justice Act 1967 endeavoured by statutory means to say that that was not right.

However, in 1987 the Privy Council in Frankland v. Moore said that DPP v. Smith had been wrongly decided, and that the objective test laid down was not, and never had been, the law of England and Wales. That was a somewhat unkind commentary upon your Lordships' wisdom and decisions in 1960.

With regard to another aspect of mens rea in 1975 your Lordships' House in DPP v. Hyam said that a jury had rightly been directed that Mrs. Hyam was guilty of murder if she knew that it was highly probable that her act would cause serious bodily harm. Ten years later your Lordhips' House decided in Maloney that the direction of the House of Lords was wrong, and the noble and learned Lord, Lord Bridge, for whom we all have such a great admiration and respect, laid down some guidelines.

In Regina v. Hancock and Shankland in 1986 your Lordships' House upheld the decision of Maloney in 1985 but said that the guidelines that the noble and learned Lord, Lord Bridge, had laid down were wrong.

We end up in 1986 with the case of Nedrick. I believe that the noble and learned Lord the Lord Chief Justice was thinking of this case when he said that the law was now clear. The Privy Council held, in a case where the judge had given a direction in accordance with Hyam in 1975, that the jury should have been told that it was a virtual certain consequence that death or serious bodily harm would have resulted. Therefore we have proceeded by something of a zig-zag course in defining murder and deciding what, according to English law, murder had to contain by way of its constituent parts. That may lead your Lordships to the decision that there should be, once and for all, a statutory definition of murder. As your Lordships have heard from the noble Lord, Lord Nathan, and the noble Earl, Lord Ferrers, the report recommends at page 25: A person is guilty of murder if he causes the death of another —(a) intending to cause death; or (b) intending to cause serious personal harm and being aware that he may cause death". I do not intend to refer to the definition of intention which is to be contained in the suggested statute.

As the Minister rightly said, the definition does not coincide with the definition of murder in Scotland. We must consider the law in England and Wales and in Scotland. The Scottish definition says, Murder is constituted by any wilful act causing the destruction of life whether intended to kill or displaying such wicked recklessness as to imply a disposition depraved enough to be regardless of the consequences". It has been pointed out that the question of depraved recklessness, if I may use that shorthand, covers the average case of terrorist attack by bomb where the terrorist tries to put forward the excuse that he gave a two-minute warning beforehand and, therefore, if he gave that warning, he could not have intended to take life.

I do not think that the public will stand for that situation. The public regards that as murder. Throughout this report the committee is saying that one must either avoid or uphold the stigma of murder because murder has a stigma attached to it and one must be careful before one administers it or takes it away. At this moment in our history, and possibly the history of the world, terrorism is the biggest plague that we have to deal with in regard to the safety of innocent children and women. The suggested definition would not cover that situation; but the Scottish definition does.

The first question one has to ask is this: is it a good idea that Scotland keeps to its law of precedents? We have a statutory definition. The committee comes to the conclusion, because of the very straightforward evidence that came before it, that Scotland need not have a statute. That obviously leaves the question of whether it is desirable that there should be one law in Scotland and a different law in England and Wales. The committee comes to the conclusion that it does not very much matter although a uniform law would have been highly desirable. I have not followed the logic of this: in another part of the report, with the defiance of the Scottish evidence before it —and some of us know what admirable strengths the Scots have in defending their traditions —the committee decides that Scotland should be allowed to keep mandatory life imprisonment.

It cannot be sensible to have a different law in regard to punishment and sentence; namely, mandatory life imprisonment, in Scotland, and to say that it does not matter at all if there is a different definition of murder—

Lord Ackner

My Lords, I hesitate to intervene. That is not the recommendation of the Select Committee. The Select Committee, with the support of members who have knowledge of Scotland, recommended that in England and in Scotland there should be a discretionary sentence with the option to impose a life sentence wherever appropriate.

Lord Mishcon

My Lords, I am deeply grateful to the noble and learned Lord, Lord Ackner. That does not make any difference to my argument, if I may say so with respect. If the noble and learned Lord, Lord Hailsham, of all people infers that it makes a difference, I should like to quote what is said in the report. I regard it as very important. The Committee note that several witnesses from Scotland, including the Lord Justice General and the Scottish Law Commission, were in favour of maintaining the mandatory life sentence. However, the Committee consider that it would not be tolerable for different sentencing regimes to apply in Scotland and England and in Wales. This view was shared by all the witnesses who commented on this point. Accordingly, the Committee recommend that the sentence for murder should be discretionary in Scotland as well as in England and Wales". If I did not make my point clear before, I apologise to the noble and learned Lord, Lord Ackner, and to your Lordships. The committee made it perfectly clear that it wanted to make the mandatory life sentence applicable to England, Wales and Scotland, in spite of Scottish opinion to the contrary. It wished to do that because otherwise it would be inconsistent. I apologise if I did not make my point clear. My point is that it is absurd to try to impose on Scotland the need for exactly the same system of mandatory life sentences while presumably it does not matter if there is a different definition of murder and the Scottish definition covers something which the English definition does not.

Lord Hailsham of Saint Marylebone

My Lords, I understand what the noble Lord, Lord Mishcon, has now said. If he looks at Hansard tomorrow he will forgive me if I say to him that quite inadvertently he gave the impression of saying that the committee came to different conclusions in the matter of sentencing and not the identical conclusion, which is the case.

Lord Mishcon

My Lords, that is why I apologised. It must have been that I did not make my position clear. Perhaps I may repeat it, because it is so important. On one issue the committee forced uniformity, against Scottish evidence. On the other issue which is so important —namely, the definition of murder —it said that it does not matter if the definitions are different. That was the point that I tried to make and I am sorry if I did not make it sufficiently lucidly.

Having said that, I ask our Lordships to take the view that that is a very serious discrepancy and contradiction. I shall leave the point there because I have an idea that the noble and learned Lord, Lord Goff, who is to take part in the debate hereafter, will be able to deal with the matter much more effectively than I. It was his opinion that came before the commmittee in regard to the definition. I shall say only that I heartily agree with him if he says the same today, as I believe he may; namely, that it is not difficult for a jury which has to decide according to the law of England and Wales whether or not something is dishonest and it will not be very difficult for it to decide whether or not something is wicked.

I shall move on speedily. However, I know that your Lordships will remember that there have been some perfectly proper interruptions in what I had to say. Nevertheless, I do not intend to Lake long.

Perhaps I may say at once that a situation was disclosed in the report which may have been a surprise to many Members of your Lordships' House. I refer to paragraphs 151 to 154. I believe that we would all agree with the noble and learned Lord the Chief justice that, It is unsatisfactory, to say the least, that the length of a prisoner's stay in prison should be determined or partially determined behind the scenes by someone who has not heard any representations by or on behalf of the prisoner on grounds which the prisoner does not know". Noble Lords will remember the criticism —which was referred to by the noble Earl —voiced in this House when the Criminal Justice Bill was dealt with of the procedure of the judge communicating privately with the Home Secretary through the Lord Chief Justice as to his view on what ought to be the minimum sentence served on a mandatory life sentence. We would not have known that, as is stated in paragraph 154: The Home Office gave evidence to the Committee that during the six months from 1st April to 30th September 1988 in 63 of the 106 mandatory life sentence cases the Home Secretary set a higher tariff than that privately indicated to him by the trial judge". It should cause us a feeling of conscience that that position should have been allowed to exist without our knowing it until the statistics were brought so emphatically before us by the committee's report. The figures quoted for subsequent years show a substantial number of cases in which a junior Minister overruled the recommendation of the judge by increasing the sentence that the trial judge said ought to be served.

Similarly, your Lordships will recollect the criticisms that were voiced in this House —I believe on all sides of the House, and certainly from these Benches —when we learnt of the Home Secretary's decision in November 1983 to introduce, without parliamentary approval, 20-year minimum sentences for those convicted of certain categories of murder. The committee has put on record in paragraph 156 of its report the dismay that was caused in all directions as a result of that instruction by the Home Secretary.

We should all approve of the fact that there is now a procedure under which it is recommended that everything should be open. The judge will give his decision in regard to the sentence which will take account of various matters to which the noble Earl and the noble Lord, Lord Nathan, referred and there is the possibility of an appeal. There will be complete openness, and matters will be dealt with not ministerially but judicially. I believe that the House will also welcome the recommendation that release will also not be a decision by a junior Home Office Minister, or a senior Home Office Minister, but by the tribunal which is suggested in the report.

There is much more that one would want to say on such an important report with such far-reaching characteristics. However, there is a limit to your Lordships' patience, and I shall limit myself to the observations that I have seen fit to make to your Lordships and which I hope will not be found to have been too unhelpful.

4.48 p.m.

Lord Hutchinson of Lullington

My Lords, I should also like to congratulate the noble Lord on the report. It is an excellent report, easy to read, mostly simple to follow and attractively pragmatic in its recommendations. Two thick volumes of evidence reveal the scope of the committee's research and the extent of its labours.

I can support wholeheartedly the first 11 recommendations in paragraphs 191 to 201, above all the abolition of the mandatory life sentence, and the definition of murder at paragraph 71. It is on the sentencing and release procedure at paragraphs 202 and 203 that I find the recommendations unclear and unsatisfactory. It is therefore on Part 8 that I should like to concentrate what I have to say. Part 8 starts at paragraph 123.

The report rightly begins with an outline of present procedure. As your Lordships have heard, it discloses a most scandalous situation regarding what was going on. That has been referred to by the noble Lord, Lord Mishcon, and I shall return to the point later.

Perhaps I may turn for a moment to paragraphs 176 and 177. These make it clear, as we have heard from the noble Lord, that a life sentence should be available in two sets of circumstances: first, for particularly outrageous murders and, secondly, where there is uncertainty about risk. Where there is risk, the judgment specifies in open court the period necessary for punishment —the penal sanction. At the expiry of that period the prisoner appears before a judicial tribunal which satisfies the terms of Article 5 of the European Convention, a concept which I certainly strongly support. That seems to me to be a clear and open process. However, I am not quite clear whether the tribunal is to sit in public, whether the decision is to be a majority one and whether the laymen sitting on the tribunal are only assessors. I am asked by my noble friend Lord Hunt, who cannot be here today, to say that he would like to see a member of the Parole Board on the tribunal. I agree with him.

What about the second limb —the particularly outrageous murder? At paragraph 177 the report states: Where he [the judge] imposes a life sentence because of the heinousness of the offence, the penal sanction will be the period of years he would have imposed if the life sentence were not available". When the judge imposes a life sentence on the ground of risk, the penal sanction will be the period of years equivalent. So there is contradistinction between risk and heinousness.

How then does the sentence for heinousness differ from a determinate sentence? Does it mean that a life sentence for heinousness is therefore to be a sentence for life? Otherwise —I may have missed the point —I do not understand the difference between that and an ordinary determinate sentence. If the sentence is to be one of life, I do not see how it can, as proposed in paragraph 179, attract remission and parole eligibility, unless I have overlooked a provision for consultation with the Almighty. I for one could never contemplate a power given to a judge to imprison anyone without hope for the rest of his natural life. All sentences must surely be reviewable.

That takes me to a further matter of concern at paragraph 178.

Lord Hailsham of Saint Marylebone

My Lords, I hope that the noble Lord will forgive me for intervening. I should like to be corrected if I am wrong. I thought that the report had stated that the difference between the life and the long determinate sentence was not quite as he stated but that the life sentence was subject to the existing rules as to recall. That is the essential difference on the point that he raised.

Lord Hutchinson of Lullington

My Lords, I hear the comments of the noble and learned Lord, but in the proposals the determinate sentence is for the normal murder and the life sentence for risk in a murder and for a murder which has no particular risk. If that is so, I do not see the difference between the two sentences. That point will no doubt become clear in the debate.

Lord Hailsham of Saint Marylebone

My Lords, I am sorry to delay the noble Lord but is not the point this? In the case of a life sentence as proposed by the Committee, the convicted person will suffer a conditional loss of liberty during his natural life because he will be liable to recall, whereas in the other case he will not. He will be subject to the ordinary parole and termination of his sentence, as happens in other cases now.

Lord Hutchinson of Lullington

My Lords, the noble and learned Lord may be perfectly right and we shall no doubt hear from noble Lords who served on the committee.

I was about to turn to the further matter of paragraph 178, where the committee states: After the introduction of a discretionary sentence for murder, the Committee anticipate that the average length of time served under a life sentence would be considerably longer than it is now. The Committee expect that their proposals will lead to very lengthy penal sanctions being set in the most grave cases. In some cases, this may result in imprisonment for the rest of the prisoner's life". I must say that I am surprised that all members of the committee have gone along with that paragraph. It is indeed a remarkable fact that the two most recent reports on penal affairs, the reports of the Carlisle and Nathan Committees, should carry health warnings that their recommendations may have adverse effects on the prison population.

Both NACRO, for which I had the honour to give evidence to the committee, and the all-party Penal Affairs Group foresaw that abolition of mandatory sentences might lead to the imposition of American-type 50, 60 or 70-year sentences which would surely be unacceptable in this country. Both recommended a ceiling on the length of a determinate sentence and the use of a life sentence only for cases so heinous that they deserved longer than the ceiling, say, 25 years. Both also recommended the introduction of a new and separate kind of sentence as proposed by the Butler Committee; namely a reviewable sentence which would be appropriate for dangerousness due to mental instability.

Sadly those proposals are not discussed in the report itself but I suggest that they are in fact preferable to the committee's proposals. The court would then have a determinate sentence for the normal case up to 25 years, a life sentence for cases of extreme gravity, with reference to the judicial tribunal after the period appropriate to 25 years had elapsed, and, thirdly, the reviewable sentence for dangerousness due to mental instability. That would leave dangerousness which may arise from the prisoner's own abnormal proclivities. That is of course always present in a whole band of other crimes besides murder and can normally only be catered for in the determinate sentence itself or at parole review. In sentencing, the trial judge may always express his view on potential risk and on any other relevant circumstance. Such views will carry weight at the parole stage and during sentence. I see no reason why, if murder cases should be distinguished, provision could not be made for a power in the court to recommend or order some form of extended supervision on release.

Under the system that I propose, the recommending power under the Murder Act 1965 would go altogether. It is a power clearly not loved by the majority of the judiciary, as evidenced by its rare and haphazard use over the last 24 years. My noble friend Lord Hunt has asked me to say that he also agrees with the proposals.

Returning to current procedures, the disclosures made in the report would be enough in themselves to justify the committee's labours. Sir Leon Brittan's unilateral abolition of the admirable joint committee of members of the Parole Board and Home Office officials, his assumption of personal responsibility for the timing of a first reference to the local review committee and his naming, without parliamentary consultation, five categories of offence for which no prisoner can serve fewer than 20 years are all set out faithfully in the report.

The discovery that junior Ministers were taking upon themselves the power to increase tariffs proposed by the trial judges and the noble and learned Lord the Lord Chief Justice is set out too. That they had done so in no less than 40 per cent.

of cases, no such decision being reported either to the prisoner or to the judiciary, all appears in the report. The report records: The surprise and shock expressed by witnesses at what was going on". It also records "the widespread condemnation" by witnesses of the inherent secrecy of the procedures and of the Leon Brittan ukase. It refers to the "usurpation of the prerogative of the judiciary", to the procedures which "offend the basic tenets of natural justice" and finally to the harmful effects on morale in the prisons.

A few moments ago the noble Earl said that the system has proved to have served the nation well. I was sorry not to have heard from him some apology and explanation of how these procedures had been allowed to continue for so long and when they were stopped. I am bound to say that on the face of it this looks like yet another example of the secretive, arrogant and insensitive political approach so often exhibited by the present Administration.

For the rest I welcome the recommendation that henceforth murder should be defined by statute. The noble Lord, Lord Mishcon, seems to prefer the Scottish common law definition but I find a concept of "wicked recklessness' hardly a precise one for an English statute. So I welcome the recommendation that the definition of murder should be defined by statute.

The noble and learned Lord the Lord Chief Justice prefers the common law definition. With much trepidation and the greatest of respect I am bound to ask: where has the common law taken us? It has worn a well trodden path in trips to the Appellate Committee of this House. A mountain of authority has been built up and a veritable library of academic studies, not the shortest of which is the 17 pages of the report contributed by the noble and learned Lord, Lord Goff.

In one case one of the noble and learned Lords described homicide as now being: an obscure and highly technical branch of the law". Some of the best legal brains have become entangled in legal and often semantic discussion of what "intention to cause serious bodily harm" means or the mental element in murder. What if one is reckless or oblivious of the result? What if one is grossly negligent? Suppose an act is one which any reasonble man believes will lead inevitably to death but one does not see it that way. What about motivation? What about desire? All that discussion is in a vain search for simple and straightforward words that a jury can comprehend.

In my view the report finds such words in paragraph 71 where it adopts the Law Commission, proposed definition. It is clear and comprehensible. I strongly agree with the committee when it says that the principle should not be distorted to deal with the reckless terrorist. No jury would find any great difficulty with the "reckless terrorist" under this definition; that one should intend to cause serious harm being aware at the time that one might cause death. I should have thought that that would embrace almost every kind of reckless terrorist of whom one could think.

This long, tortuous pursuit of the common law illustrates graphically the difficulty which the most brilliant minds experience in understanding the fundamental principles of the criminal law which must be clear and comprehensible to jurymen and magistrates. It is a difficulty which as we have seen recently seems to extend to the requirements for criminal advocacy as well.

I am glad that the report recommends the retention of the special defence of provocation and diminished responsibility and proposes the addition of a new defence of using excessive force in self-defence, which is already in operation in Scotland. I am glad too that no attempt was made to try to categorise the offence of murder. I should have liked the Government to have given a fair wind to the central recommendations of this outstanding report and I was rather sad to observe the somewhat squally forecast from the noble Earl in his words to the House. I hope that the Government will allow further time for discussion of the recommendations on sentencing and release.

5.6 p.m.

Lord Goff of Chieveley

My Lords, I join with other noble Lords in welcoming the report of the Select Committee and expressing my gratitude to the noble Lord, Lord Nathan, and his colleagues for all the hard work which they must have put into it. I found the report and the volumes of evidence very interesting reading, from which I am sure I shall derive much profit.

I have little doubt that the sections of the report that are likely to attract most attention are those concerned with the mandatory life sentence and with the arrangements for reaching decisions on release. Even so, in the time available to me I shall concentrate on another matter on which, with all respect, I find myself unable to agree with the committee's proposal. I refer to the proposed definition of murder for England and Wales set out in paragraph 195 on page 50 of the report in the committee's summary of its conclusions and recommendations.

I trust that your Lordships will forgive me if I remind the House of the proposal, although the noble Lord, Lord Mishcon, has referred to part of it. It is taken from the Law Commission's draft criminal code and reads: A person is guilty of murder if he causes the death of another—

  1. (a) intending to cause death; or
  2. (b) intending to cause serious personal harm and being aware that he may cause death".
In addition there is the following: A person acts 'intentionally' with respect to … a result when he acts either in order to bring it about or being aware that it will occur in the ordinary course of events". I believe that it is of great importance that the crime of murder so far as possible should reflect the understanding by ordinary people of homicide, which is so heinous that the killer should not merely be guilty of manslaughter but should be branded as a murderer. The definition should be so drawn that all those killers who should be branded as murderers are caught by it and those who should not be branded as murderers should fall outside it.

I also believe that it is most important that the definition of the crime of murder should be expressed in ordinary language and that the words in the definition should be used in their ordinary meaning. Only in that way can we be sure that the definition of the crime of murder reflects the ordinary understanding of what is murder. Only in that way can juries, whose task it is to decide whether our fellow citizens are guilty or innocent of that most serious of crimes, be sensibly directed by judges and clearly understand the task that they have to perform.

The proposed definition fails on both counts. First, it excludes some whom the public will rightly think should be guilty of murder and includes some who obviously should not be guilty of murder. Secondly, by imposing an artificial meaning on the word "intentionally" it does not give an ordinary English word its ordinary meaning and so is likely to confuse juries who consist of ordinary men and women, and also confuse ordinary men and women who read about murder trials in the newspapers.

Let us take those who are wrongly excluded by the defnition. To some extent I am here reflecting what the noble Lord, Lord Mishcon, has already said. I suggest that it is of profound importance that our law of murder should be so drawn as to accommodate the terrorist. Sadly, this has never been more necessary that it is today. If the offence is too narrowly drawn either juries will be driven to cheat in order to convict terrorists whom they regard as being guilty of murder; or the public will be justifiably outraged if terrorists whom they regard as murderers are acquitted of murder.

The point is this. Not all terrorists intend to kill, that is to say, mean to kill or even mean to cause serious bodily harm. Of course many do mean to kill and in their case there is no difficulty over the defnition of murder. But there are terrorists—for example, those who let off bombs in public places or destroy monuments—who do not mean to kill or even to cause bodily harm. Their state of mind is quite simply that they do not care whether or not they kill.

Perhaps I may take one or two simple examples. Let us take first the terrorist who places a bomb in a shopping precinct, timed to go off at midnight. A courting couple embracing in the darkness of a shop doorway is blown to bits. At the trial the terrorist's state of mind becomes clear. He did not mean to kill anybody. He did not mean to hurt anybody. He did not think that anyone was likely to be there at midnight. His real purpose was to cause terror; but, if somebody was there, he simply did not care whether or not that person was killed.

Let us then take the case of a terrorist who blows up a public monument at night. The night watchman is killed, or falling masonry kills a stray passer-by. The terrorist's state of mind was exactly the same. He did not think that anybody was likely to be there; but if somebody was there and got killed, he just could not care less.

On the Select Committee's proposed definition, neither of them would be guilty of murder. They do not mean to kill; they did not mean to cause serious bodily harm; and they were not aware that death would result in the ordinary course of events, and so they will not be taken to have intended to cause death. I do not think that that is right. I take the view that a terrorist who kills, and whose state of mind is that he does not care whether or not he kills, should be branded as a murderer. I observe in parenthesis that my opinion is in accordance with Scots law. Under Scots law, the terrorist in both my examples would be guilty of murder.

The Select Committee's definition finds its origin in the 14th Report of the Criminal Law Revision Committee. My noble and learned friend Lord Edmund-Davies was chairman of that Select Committee. It was fully aware of the problem about terrorism and indeed added another specific provision to the proposed definition of murder to deal with it. I do not think in fact that it was a very good way of dealing with the problem. That is no doubt why it has been dropped by the Law Commission in its draft criminal code now adopted by the Select Committee. However, merely abandoning an unsatisfactory solution to a problem does not make the problem go away. It is still there and it exposes a serious deficiency in the definition now proposed.

The examples that I have given about terrorism show that the proposed definition is too narrowly drawn. But in another respect it is too widely drawn. This brings me back to the meaning that is given to the word "intentionally" in the proposed definition —or rather two meanings, because it is given both its natural meaning and an artificial meaning. It is provided that a person acts intentionally with regard to the result, first, when he acts in order to bring that result about—that is to say, when he means that result to happen, which is the ordinary meaning of the word; and, secondly, when he acts being aware that the result will occur "in the ordinary course of events". That is an artificial meaning of the word. For example, a man may act with the evident purpose of striving to prevent the result which in the ordinary course of events he knows will occur. Why, I ask, should that man in those circumstances be taken to have intended the result?

We are concerned here with people who could be wrongly convicted of murder on the proposed definition. Let us take this example. A house is on fire. A father is trapped in the attic floor with his two little girls. He comes to the conclusion that unless they jump they will all be burned alive. But he also realises that if they jump they are all likely to suffer serious personal harm. The children are too frightened to jump and so in an attempt to save their lives he throws one out of the window to the crowd waiting below and jumps with the other one in his arms. All are seriously injured, and the little girl he threw out of the window dies of her injuries. On the Select Committee's proposal that unfortunate man would be a murderer. That is because he was aware that "in the ordinary course of events" the little girl would suffer serious injury and therefore by the proposed definition he is taken to have intended to cause serious personal harm to her. He was also of course aware that his act might cause her death. He is therefore guilty of the murder of his own little girl when he was actually trying to save her life.

On the other hand, he will not be guilty of the crime of causing grievous bodily harm to the other little girl because on the Select Committee's proposal the proposed artificial meaning of intention would be limited to murder. My Lords, just imagine trying to explain that to a jury! It is easy to multiply examples of this kind. Let us suppose that a surgeon has a patient who is extremely ill and in great pain. There is an operation that he can perform which, if successful, will relieve the pain and effect a cure, but which if unsuccessful may well result in the patient's death. The patient is too ill to be asked for his consent to the operation. The surgeon therefore, acting in the best interests of the patient, forms a reasonable clinical judgment and operates. The patient dies. On the Select Committee's definition the surgeon, though trying to save his patient's life, would be guilty of murdering him.

It may be said that there is surely some defence of necessity that can be invoked in circumstances such as these. But there is the gravest difficulty about that. Let us take the related defence of duress by threats or force. Recently your Lordships' House decided that, although duress by threats or force is generally a defence to a criminal charge, it is not a defence to a charge of murder. That is a conclusion with which the Select Committee has expressed agreement. In these circumstances there must be very serious doubt whether necessity—or "duress of circumstances" as it is sometimes called—although a defence to other criminal charges, can be a defence to a charge of murder. But, in any event, the true answer to the problem raised by my examples is quite simply that murder should be so defined as not to give rise to such extraordinary results as these. In other words, we should not impose any artificial meaning on the words "intention" or "intentionally" in this context.

Lord Reid, one of the most distinguished Lords of Appeal this century, hit the nail on the head years ago when he said: In fact people often intend something quite different from what they know to be the natural and probable result of what they are doing. To take a trivial example, if I say I intend to reach the green, people will believe me although we all know that the odds are ten to one against my succeeding; and no one but a lawyer would say that I must be presumed to have intended to put by ball in the bunker because that was the natural and probable result of my shot". Exactly the same can be said of this proposed definition of murder under which people are to be taken to intend the result which they are aware will occur in the ordinary course of events. That is a phrase which, I may add, is highly ambiguous in any event, but I do not have the time to consider that matter now.

The Appellate Committee of your Lordships' House has recently decided that the word "intention" must be given its ordinary meaning and not an artificial meaning. The Select Committee want to turn back the clock. With all respect, it is wrong. I believe that ordinary words must be given their ordinary meaning so that they can be understood by ordinary people.

What has gone wrong with the proposed definition is that it starts with the proposition based upon true intention: meaning to kill and meaning to cause serious bodily harm. When it is found that that does not work satisfactorily the word "intention" is artificially expanded in an attempt to cope with the problem. Then, not surprisingly, the attempt is found to be unsuccessful.

But that is not the right way in which to set about defining the mental element in the crime of murder. You must not start with a preconception of what is murder and then, finding that it does not work, artificially expand it to accommodate some cases which will not fit. That is a recipe for disaster. The right way is to identify what we think of as murder—to identify the very idea or concept of murder—and then to clothe that idea with words using them in their ordinary meaning.

I believe that there is a simple answer to all these problems founded upon an adaptation of Scottish law under which a man who kills is guilty of murder either if he intends to kill or if he could not care less whether or not he kills. But at the moment both the academic and judicial establishments in England are resisting that simple answer, though for different reasons. The academic establishment does so because it is wedded to the mistaken idea of an artificially expanded concept of intention. The judicial establishment does so because it is so frightened of the name which the Scots give to the second head of their definition of murder—"wicked recklessness"—that it will not contemplate the substance of that principle. In other words, they do not like the colour of the icing and so they refuse to taste the cake.

Perhaps it is no wonder that in these circumstances the Select Committee was led astray on this point. But that is not the subject of the debate tonight. Tonight your Lordships are concerned with the proposals of the Select Committee. I must say, with the greatest respect, that I cannot recommend to your Lordships that the definition now proposed by the Select Committee should be adopted by Parliament. I believe that to do so would be a profound mistake. I respectfully agree with the evidence given to the Committee by my noble and learned friend Lord Lane, the Lord Chief Justice, only to this extent; that rather than enact this proposed definition it would be better to leave the present law as it is.

5.25 p.m.

Viscount Colville of Culross

My Lords, I hope that the noble and learned Lord, Lord Goff, will not take it amiss if I do not follow him into the question of the correct definition of murder. I doubt whether I can assist your Lordships at all on the subject. Equally, I apologise to the noble Lord, Lord Nathan, for having missed his speech. I can give only this explanation. I was at a large mental hospital in East Anglia discussing with the staff the prospects of some of their patients and trying to understand how they assess the risks of their re-offending. That is a topic which is not wholly irrelevant to our debate. However, I am most sorry that I missed the noble Lord's speech.

One point made by the noble Lord and his colleagues in the report is certainly music to my ears. Paragraphs 86 to 89 deal favourably with the point about self-defence when excessive force is used. That point was brought to my attention during the course of my duties in Northern Ireland. The situation does not happen often but a good deal of dispute has arisen particularly in Australia. The Select Committee has given its opinion upon the matter. I hope that my noble friend Lord Ferrers will have a moment to look at the brief evidence that I gave to the Select Committee and that he may also be convinced that the matter should now be dealt with legislatively because plainly it is beyond the bounds of the judiciary to take it any further.

My main reason for rising this evening is that at present I am the Chairman of the Parole Board for England and Wales. If that is an interest I am glad to declare it. It is a position which at the moment is not entirely uneventful in view of the number of recommendations which appear to be coming forth about the way in which my colleagues and myself may do our jobs in the future. I am extremely glad that on the Select Committee were my two predecessors, both of whom are to address the House this evening. They are my noble friend Lord Windlesham and the noble Lord, Lord Harris of Greenwich.

There are many comments I should like to make arising from the report but I wish to concentrate on only two. The first is the question of the structure that we are to have in the future about what the Select Committee has called "release decisions". Your Lordships will recall—and it has been said tonight already—that this is the third of three reports to have been produced over the past six months. The first was that of my noble friend Lord Carlisle of Bucklow and his committee. His terms of reference allowed him to deal only with determinate sentences. His committee recommended that the Parole Board for England and Wales—and it alone—should take the decision about the release of such prisoners. In other words, the current role of the Home Secretary and his advisers would go.

In Scotland soon afterwards was produced the report of the committee chaired by Lord Kincraig. It dealt not only with determinate sentences but also with life sentences. Its conclusion was that the Secretary of State for Scotland should maintain the position that he currently holds in relation to both types of prisoner. In other words he would be advised by the Parole Board for Scotland in both types of case—although its procedures are slightly different from ours—but, nevertheless, the final decision would be his. There would therefore be a diametrically different system north and south of the Border if those two recommendations were both adopted. I suggest to your Lordships that that is not likely to be a very satisfactory situation.

The noble Lord, Lord Nathan, and his colleagues on this Select Committee, if I read them aright, have said that they do not wish to interfere with what the committee of my noble friend Lord Carlisle said in relation to determinate sentences. Of course, the committee of the noble Lord, Lord Nathan, proposes that some kind of murders should lead to a determinate sentence. Therefore, I believe it must follow that they would be content to see the system proposed by my noble friend Lord Carlisle also used for those sort of murderers; that is, the decision on release would be taken by the Parole Board alone, at least in England and Wales, without the intervening presence of the Home Secretary and his officials.

However—and my noble friend Lord Ferrers referred to this—they then face what will happen when the court at Strasbourg interprets Article 5.4 of the European Convention on Human Rights in relation to the discretionary power of the Home Secretary to release what is at the moment the only sort of convicted murderer; that is, somebody enduring a life sentence.

Let us suppose that the Commission should say, as it rather tends to in similar circumstances, that that executive decision does not comply with the article in the convention and that there should instead be a self-contained judicial authority which will take those decisions and, incidentally, the decision on recall for a life prisoner who is out on licence. If it comes to the conclusion that that must be done by a judicial body and not by the Executive, then the Select Committee will have forestalled that because it makes the recommendation in paragraph 184 about the independent judicial committee which has been discussed by some of your Lordships this evening. That may very well be something into which we shall be forced by our adherence to the European Convention.

However, where I find the system and some other recommendations suggested by the noble Lord, Lord Nathan, to be rather obscure is at paragraph 180. As I understand it, he is saying that even in the case of a true life sentence, there would be a portion of it which would be called the tariff portion and which would be the equivalent of a determinate sentence for that particular offence. For that portion, there would be eligibility for parole and for release on remission. However, if for some reason the time passes by and the tariff is completed, thereafter the decision would pass to the independent judicial body.

My colleagues on the Parole Board and I find it difficult to understand how that would work. It would appear that after what is the relevant period—and it may be a third or a half of the sentence—we would be allowed to take account of the possibility that that person should be released on parole. As I understand it, even if we were not to take that view, he would be entitled to release on remission after whatever is the necessary next portion of his sentence. How then would the matter ever get in front of the judicial tribunal because he would automatically have been released already? Therefore, I find that that element, along with what has been recommended by my noble friend Lord Carlisle and by Lord Kincraig, adds a complexity to the situation which is not likely to produce a clear structure for release decisions which I know the noble Lord, Lord Nathan, and his colleagues would wish to achieve, as I am sure would all Members of this House.

It is rumoured that Her Majesty's Government are preparing a White Paper on some or all of this. If that is so, I hope that they will think through the reports of these three distinguished committees in relation to the way in which and the people by whom release decisions are to be taken, for unless there is clarity in that, the rest of the structure—the giving of reasons, open reporting and so on—will come to nothing because we shall not have a coherent system which is running the whole thing in the first place. I beg my noble friend to take this very seriously, to read these reports together and to make sure that there is consistency at the end of it.

There is one other matter which I should like to raise this evening. Both the report of Lord Kincraig and that of my noble friend Lord Carlisle say in terms that the reason, which should be given, for refusing release of a prisoner should relate only to the risk of that person reoffending. I believe that the Select Committee of your Lordships' House is in agreement with that. I have looked at paragraph 165 and that is the way in which I read it.

Before any decision is reached—and I would also advocate that my noble friend and his colleagues in the Home Office look at this matter—your Lordships might like to look at pages 3 and 4 of the Parole Board's last annual report when we considered this matter. I can tell your Lordships that what I have said so far is my own opinion. That part of my speech which relates to the annual report is the opinion of all my colleagues. We are not at all sure that the risk of that prisoner reoffending is the only criterion upon which release on licence should be refused.

I give the very obvious example, out of a number quoted in that report, of the drug courier, of whom there are really quite a lot in our prisons at present. On the whole, they are people who, when caught and imprisoned, behave impeccably. It matters not from which country they come because they all follow very much the same pattern. It is also unlikely to a degree that they will again be entrusted with running a consignment of drugs into the United Kingdom because they have been caught, they are known, they have a record and it would be idiotic to entrust them with another run.

However, if those offenders are released on parole on the basis of the likelihood of their reoffending, then they will be let out very soon. What message will that give to the country from which they set forth about the attitude of the United Kingdom towards couriers who bring in drugs?

I give that as only one example. In our report we attempted to set out others. There are risks which we believe go beyond that of the offender reoffending to the possibility of other people reoffending as a result of the decision taken to release on licence. I ask your Lordships to take a moment to study some of the examples and to see whether you can think of any more.

I look forward to another occasion on which I can go into other details raised by the noble Lord and his colleagues in a truly fascinating report on which I join in congratulating him and them. However, for this evening I shall be content if my noble friend applies his mind to the three points which I have mentioned to him.

Lord Goff of Chieveley

My Lords, I hope that the noble Earl, Lord Longford, will forgive me for interrupting. It is simply to say that I have a long-standing engagement this evening and I trust that your Lordships will forgive me if I do not stay until the end of the debate.

5.39 p.m.

The Earl of Longford

My Lords, I gather that I shall have the benefit of the presence of the noble and learned Lord for my remarks even if others suffer from his absence.

I join the noble Viscount, Lord Colville, in expressing my apologies to the noble Lord, Lord Nathan, for missing his speech. I was informed in this House—the information is usually very good—that the debate might begin at five o'clock, possibly four-thirty, but certainly not before that. I was not doing anything of any value, unlike the noble Lord, Lord Carlisle. I was chatting in some corridor, bar or something, but I am afraid I also missed his speech and I extend my apologies.

I have listened with great interest to my acting leader, the noble Lord, Lord Mishcon. I gather that he was speaking for himself but nevertheless he speaks with a great deal of authority on these matters and I cannot claim an equal authority. I suppose I have known as many life prisoners in the last half century as any Member of the House. Whereas other Members who have known a number of life prisoners were probably employed to do so—to put it crudely, paid to do so—I have gratuitously poked my nose into their affairs. Whether that gives me more or less of a claim than professional men who have dealt with them I would not know.

I join in paying tribute to the high quality of this report as one would expect from the chairman and the excellent committee which included two of my present colleagues and one colleague about whose status I am not clear at the moment. I recognise, as others have done, that there are many good points in it which I do not propose to try to touch on in these few minutes. I particularly welcome the reference to better treatment of victims which the noble Earl mentioned at the end of his speech. That deserves a debate all on its own. However, I entirely agree with the noble Earl, and all of us approve of that.

Taking the main issues I entirely agree with those who say, with the report, that murder should no longer require a life sentence. Life sentences should no longer be mandatory. That has been argued very well in the report. It has been argued again and will be argued further today. Therefore I shall not deal with that.

I shall concentrate on three paragraphs in the report about which the noble Lord, Lord Hutchinson, had something very valuable to say. I refer to paragraphs 176, 177 and 178. The last sentence of paragraph 176 runs as follows: The life sentence should remain available both for particularly outrageous murders and for those where there would be a degree of uncertainty about the risk, by reason in particular of his mental condition, of releasing a prisoner at the end of a determinate sentence". I should like to take the second part of that sentence. It is not long ago that I opened a debate in this House on mental offenders. Like other noble Lords, this is a subject about which I feel strongly. I would submit that in the case mentioned, where the judge is faced with a man about whose mental condition he is very uncertain, the man should not be packed off to prison for many years. He should go to some kind of hospital, very likely a secure hospital. It may be said under the present law that it is not always possible to arrange for that. In fact some of those who commit the most outrageous crimes are in the end sent to hospital, sometimes after many years, but after having spent a long time in prison. I am saying that this is a backward step.

In the past 20 years people have been sent to prison who in the 1960s would have been sent to hospital. There has been a reluctance on the part of psychiatrists and others to accept them. That is what is happening, but that itself is a movement backwards. This proposal would endorse that arrangement. They should be sent to hospital, and if someone tells me under the existing law that that could not be arranged, then the law should be changed; if somebody says the hospitals do not exist at the present time to take them, then hospitals should be provided. We are here to suggest what ought to be done and if it cannot be done today, it should be done tomorrow. That is one topic on which I should like to record my opinion very clearly.

I pass to another criticism. Here I am echoing the thoughts of the noble Lord, Lord Hutchinson, in particular. We are told that where a life sentence is imposed the penal sanction will be announced at the same time. The penal sanction will be equal to the period of years that the judge would have imposed if a life sentence were not available. That seems to make good sense as stated in that way. Then we read on. Paragraph 178 states: The Committee expect that their proposals will lead to very lengthy penal sanctions being set in the most grave cases". Put like that one can hardly object to it, but we must bear in mind that sentences in this country are already very grave. I inquired this morning and I understand that they have increased on average in this country by 30 per cent. in the past four years. It is not surprising that a higher proportion of the population here are in prison than in any other European country. To say the least, I am nervous as to where this kind of language will take us.

However, I am still more concerned with what comes next. The last sentence of paragraph 178 reads: In some cases [these proposals] may result in imprisonment for the rest of the prisoner's life". I must press the Minister in the last resort to tell us whether the Government approve of that language and, if so, what does it mean? It is highly ambiguous. A rumour has reached me, which may be quite wrong, that it represents a compromise of views within the committee. But as it stands it is open to the interpretation that it means that in some cases a judge will actually sentence people to life and say, "This means life". Once you do that, as has been pointed out earlier, parole after a period of years can have no meaning.

I do not know whether the Government will be able to say anything much tonight about this, but I must record the strongest possible horror at the thought that in future judges will sentence people to life, explicitly meaning life. It would be as far as I can discover unprecedented, I have made inquiries and no one can supply a case where a man has been allowed to die of old age in this country while serving a life sentence. People have died in prison—they have been ill or perhaps committed suicide—but the possibility in some cases in future that life will mean life will be an outrageous step backwards. It would be halfway to a return to capital punishment. It would be a horrifying development, utterly opposed to Christian ethics, Jewish ethics, humanist ethics or any other ethics that would appeal to your Lordships. If Christianity means anything, it means that we are all sinners, we are all equally children of God and we are all capable of redemption. All those principles are defied by a proposal of this kind, if that is the meaning of the proposal.

In the popular tabloids language of that kind is used very freely. I was reading an article the other day about a prisoner who served 24 years in prison. He was recommended for parole by the local review committee. The leading article started, "Forever Evil". Whoever uses that language about a fellow human being is accepting a criminal responsibility. I am revolted that such a thing could be published in this country in a very popular newspaper.

We have seen big developments in recent years. On the one hand we have far more enlightenment. Thirty years ago there were hardly any criminologists. Every college now seems to have a criminologist and very good work they are doing. There is now far more understanding of crime and the principles of justice than there was. However, there has been a remorseless increase in crime leading naturally to a very deep fear among the public which has been exploited ruthlessly by the tabloid press.

Now the Home Office has a new master. The officials of the Home Office are far more enlightened than they were 30 years ago, but what about the new master? I wish him nothing but good, but he is a declared supporter of hanging, which is a bad start. As we have a Prime Minster who also favours hanging the omens are not favourable. However, we hope that under the benign influence of the Home Office the new incumbent will train on. As I have said, I wish him well.

Having made these points I return to my starting point. I congratulate the noble Lord, Lord Nathan, and his colleagues who have helped us to approach these problems in a reasonable and enlightened spirit. Despite my criticisms I hope that their report will have much success.

5.51 p.m.

Lord Lane

My Lords, perhaps I may add my congratulations to those that have already been expressed to the committee and to my noble friend Lord Nathan on producing such a clear and readable report. I also apologise to my noble friend for not being here for his opening remarks. I was gainfully employed in the Royal Courts of Justice not on a murder appeal but on a conspiracy to rob when armed.

I respectfully agree with the proposals to abolish the mandatory life sentence. It has produced a number of anomalies not least of which is the anomaly that the trial judge and the Lord Chief Justice are constrained to report to the Home Secretary on their views as to the length of time which the particular prisoner should serve on grounds of deterrence and punishment. Those views are not communicated to the prisoner by the judge—except perhaps at the end of the trial—or by the Lord Chief Justice. Indeed he never hears any representations from the prisoner. That cannot be right. Quite apart from the considerable burden which this imposes on the current Lord Chief Justice—over 300 cases in a year have to be considered—nevertheless it seems to me that the mandatory life sentence should go as proposed and should be substituted in the way that the committee recommends.

The change will produce difficulties in its turn as changes always do. Some of those difficulties will be directed to the question of when the life sentence should be imposed. Another difficulty will be for a judge to know exactly how he is to calculate the determinate sentence where a determinate sentence is possible. Those matters will take time to resolve. With the increased powers of the Court of Appeal (Criminal Division) by virtue of the new Section 36 of the Criminal Justice Act, we can now review not only over-harsh sentences, but over-lenient sentences. In the course of time—it may take some time—it should be possible to reach a series of satisfactory guidelines to assist judges in that difficult task.

Perhaps I may be permitted to voice one matter which concerns me greatly about the committee's report. It is the proposed new definition of murder which is to be found at paragraphs 71 and 195 and on pages 25 and 50 of the report. Criminal law is, in the nature of things, very largely a compromise between what is, on the one hand, intellectually desirable and what is, on the other hand, practical, easy to explain, to understand and to operate. There are great dangers in over-intellectualisation of the criminal law.

If one were to be guided solely by intellectual considerations, the mental element in murder would be an intention to kill and no more. Indeed I am surprised that my noble and learned friend Lord Goff does not recommend that. The burden of proof being on the prosecution, that intention is exceedingly difficult to prove. That is demonstrated by the difficulty that all practitioners will appreciate of bringing home a charge of attempted murder where that is the mental element required.

Short of an admission by the defendant that he did intend to kill it is almost impossible to prove. So if such were the required definition in murder itself, many defendants, who would undoubtedly be considered by people in general to be murderers, would escape conviction. So there has to be a wider definition if totally unjustifiable acquittals are to be avoided.

As is plain to your Lordships, and also from the committee's report, what is required at present is an intention either to kill or to do serious bodily harm. I understand that the objection to that definition is that it is too wide and that it includes people who would not be considered generally by the public to be murderers and susceptible to the stigma of being called murderers. One sometimes hears of the example of the defendant who intends simply to break an arm or a leg of the victim but unfortunately succeeds in killing him. Such occasions will be rare but they can arise. They will usually result in some other defence being available to the charge of murder.

In order to meet that difficulty, the committee proposes that the definition of murder should be extended so that a person shall be guilty of murder: if he causes the death of another (a) intending to cause death"— so far so good, and (b) intending to cause serious personal harm"— so far so good, but with the addition: and being aware that he may cause death". I pass over the use of the word "personal" which seems to be inappropriate. I do not see what is wrong with the word "bodily". "Personal" seems to have all kinds of connotations which will no doubt give rise to difficulties. But that is a very minor point. The object of the additional words is to exclude those occasions which are necessarily rare when no one could reasonably have foreseen that death would result from the defendant's action.

However, instead of that objective inquiry—that is to say, what was reasonably foreseeable which would be easy to administer—the new definition requires the jury to judge the likely result not through their own eyes but through the eyes of the defendant. Defendants come in all shapes and sizes: they come in all degrees of mental capacity. I regret to say that most commonly they come in every shade of intoxication usually by alcohol but now, more frequently than used to be, by other drugs. One does not envy the task of the judge and jury in trying to determine the degree to which the defendant's lack of intelligence, lack of sobriety or lack of foresight will prevent him from being aware that death might result. If the defendant says, as he no doubt will, "It never occurred to me that the man might die", how will the prosecution answer that question, the burden of proof still being upon them, except by suggesting that anyone in his senses would have realised and must have realised the danger. There one comes back to the objective test which is apparently anathema.

In short, perhaps I may suggest that the proposed alteration will produce a great deal more injustice than the definition which it seeks to amend and to remedy. It will certainly put a premium on insobriety and will inevitably start a whole new series of questions and decisions and of footsteps plodding their way to your Lordships' House, as they have done for the past 16 or 17 years since the decision in Hyam. This will produce a new Hyam situation.

At the risk of speaking for too long perhaps I may mention one other matter. It is right to say that the decision in Nedrick, which is referred to on page 25 of the committee's report, endeavoured to provide a satisfactory definition of the word "intention". With great respect to my noble friend Lord Mishcon, Nedrick was not a decision of the Privy Council but merely of the Court of Appeal (Criminal Division) doing its indifferent best. It is equally true to say, as Professor Glanville Williams points out perspicaciously in an article reprinted on page 121 of the committee's report, that in Nedrick the court was obliged to phrase matters as it did because of earlier decisions in your Lordships' House by which it was bound. We had to tread very gingerly indeed in order not to tread upon your Lordships' toes. As a result, Nedrick was not as clear as it should have been. However, I agree respectfully with the conclusions of the committee that "intention" should be defined in the terms set out in paragraph 195 of the report on page 50. That seems to express clearly what in Nedrick we failed properly to explain.

Perhaps I may say to my noble and learned friend Lord Goff who sits immediately in front of me that I must respectfully disagree with his suggestion that the words "wicked recklessness" should be imported in some way into the definition of murder in this country. Anyone who has had to try to explain in our courts, in the light of decisions in your Lordships' House in the cases of Caldwell and Lawrence and of a decision of Mr. Justice Burn many years ago in the case of Cunningham, what is meant by "recklessness" will appreciate what a quagmire the word "recklessness" represents. To add to the word "recklessness" such a vague term as "wicked" will only make matters worse. One is appalled to think of the difficulties which would arise in trying to explain to a jury, first, what "recklessness" means, and secondly, what "wicked recklessness" means. That would be a bonanza for the criminal Bar. It would never go short of fees for years to come.

I shall make one more point and one more point only. I refer to terrorist cases. I urge that one does not legislate for special cases. That way lies disaster. There are plenty of criminal and statutory provisions which can deal quite satisfactorily with terrorists. For offences under the explosive substances legislation which carry life imprisonment, the burden of proof is comparatively trivial compared with the kind of burden of proof which lies upon the prosecution in a case of murder. To start legislating for the particular difficulties which we face at the moment in the shape of terrorists would produce corresponding injustices which would be very hard to eradicate.

6.5 p.m.

Baroness Platt of Writtle

My Lords, the report of our Select Committee is before the House this afternoon so that your Lordships should have the opportunity of taking note of it and debating its recommendations. I have listened with great interest to the debate so far and to noble Lords' various views and will continue to do so this evening. This is a very serious subject, a matter of life and death. Mondays last year for the committee were dominated by murder, a very depressing subject. We were very fortunate in our chairman, who led our committee in a most efficient and orderly way so that we completed our report on time, having still had plenty of time to debate its serious recommendations. At the same time he led us in such a good humoured and fair way as to overcome somewhat the cheerlessness of our subject. I should like also to pay tribute to the helpfulness and efficiency of our clerk, Tom Mohan, and our adviser, Professor Smith.

In paragraph 2 our report lays out the limitations under which we operated and in paragraph 1 our terms of reference. Those two paragraphs had a major effect on the form of our recommendations, to which I shall return later. As a member of the committee I agreed with its recommendations in all but one respect, which is referred to on page 64. The first part of our report refers to the scope and definition of murder. Noble Lords will see that after long and careful consideration we decided against the categorisation of degrees of murder, and after the most serious consideration that terrorists should not be considered separately, although we felt most deeply that they should be brought to justice and punished severely for their crimes.

Other members are far more qualified than I to speak about the definition of murder referred to in Parts 4 and 5 of our report. When considering the defences to murder we recommended the retention of diminished responsibility and provocation and added to them the use of excessive force in self-defence. We did not accept the addition of duress or mercy killing. There will be many in the House who have great sympathy with the mercy killer, but I was deeply convinced of the rightness of the conclusion of the BMA's working party on euthanasia that the deliberate taking of human life should remain a crime. This rejection of a change in the law is an affirmation of the supreme value of the individual, no matter how worthless and hopeless that individual might feel.

I am a long-standing supporter of the hospice movement. As hospices develop they are able to improve the quality of life of the terminally ill. That is a most hopeful state of affairs in looking to the future. To take a more lenient view of mercy killing would be in sharp contrast to hospices' patient work and could lead to a lessening of respect for the sanctity of human life.

In Part 7 we come to the sentence for murder. We were asked to look at whether imprisonment for life should remain a mandatory rather than a maximum penalty. We were neither empowered to consider the question of the death penalty nor to recommend that the offences of murder and manslaughter should be combined into a single offence of unlawful homicide. The arguments for and against the retention of the mandatory sentence for the crime of murder are set out fairly on pages 33, 34 and 35 of our report. I am sure that noble Lords will have read them and pondered the weight they carry. The arguments in paragraphs marked A are in favour of the retention of the mandatory sentence and those marked B are in favour of the discretionary sentence.

I must say that I was alone in the committee in being convinced by the paragraphs marked A of the need to keep the mandatory sentence, whereas those marked B convinced everyone else that it should be abolished. That situation led me to put forward the amendment set out on page 64, which, as noble Lords will see, was not supported. The majority of our witnesses were in favour of its abolition. However, there was also a substantial body of opinion in favour of its retention. Therefore I feel justified in ensuring that the minority view is put forward today.

The Crown Prosecution Service put forward its evidence in favour of retention on page 95 of Volume II of the report. The service believes that life imprisonment is the appropriate retributive sentence for murder and that public confidence in the criminal justice system would be eroded if the penalty for murder became discretionary. It also believes that the mandatory sentence has an element of deterrence, and it especially emphasised the importance of the power of recall throughout the lives of those sentenced. The service feels that these arguments for the retention of the mandatory sentence are conclusive.

The National Association of Senior Probation Officers also favours the retention of the mandatory sentence, believing that the penalty for murder expresses the value society places on life. The association drew particular attention to the rise in homicide and violent crime during the period 1978 to 1987 which, it says, does not encourage the notion that penalties should be reduced.

While the noble and learned Lord the Lord Chief Justice and 12 out of the 19 judges of the Court of Appeal were in favour of the discretionary sentence, seven of them were not. In Scotland a number of people were in favour of the retention of the mandatory sentence, including the Lord Justice-General Lord Emslie representing the unanimous view of the High Court of Judiciary of Scotland. He took into account the importance of upholding public confidence in the proper punishment for serious crimes.

The Faculty of Advocates also formed the view that the mandatory life sentence should be retained, welcoming especially its flexibility in operation. It was felt that those in charge of the prisoner after conviction were best able to determine when it would be appropriate for such a prisoner to be discharged back into society. The Associations of Chief Police Officers of England and Wales and of Scotland were in favour of its retention by a majority view. The Scottish Police Federation also wished it to remain as a mandatory sentence.

The report states in paragraph 109A that, The distinction between murder and manslaughter … becomes meaningless if there is no difference in the sentencing powers available to the court; and the mandatory sentence is the only way of making such a distinction. In paragraph 111A the report states that, The mandatory sentence is necessary for the protection of the public … 'A person who has killed once has demonstrated by his actions that he is capable of killing again' ". Ten murderers who have been released since 1968 were convicted of a further homicide.

From the time I was appointed to the committee, very much as a lay member who is not qualified in the law, my major consideration has been the protection of the public in a time of increasing crimes of violence. When a murder has been committed the victim can no longer be heard. It is up to us always to remember that. Justice to the murderer is also of great importance, but the protection of innocent victims and of potential victims is for me the overriding consideration.

I was also pleased to read in the written evidence given by the Parole Board that its release policy is based upon caution and that when there is doubt the matter is resolved in favour of society. For me the mandatory life sentence can act both as a retribution and a deterrent, but more important is its effect as a safeguard against future risk. A life sentence does not usually mean imprisonment for life; it means that for the remainder of his life after his release the murderer is liable to be recalled to custody if he breaches the conditions of his licence or if his behaviour indicates a risk of committing a further serious offence.

Release on licence also includes a requirement that the licensee is supervised by a probation officer for the first few years after release. We had the privilege of sitting in during the proceedings of a meeting of the Parole Board. I was most impressed by the careful way members of the board considered the large bundles of evidence before them—which we also read—referring to the detailed situation of the prisoner whose release was under consideration. They considered the matter very carefully indeed and in considerable depth.

I turn now to page 47, where we state that whether or not the sentence of murder becomes discretionary, the judge should specify in open court the period of years which he considers necessary to satisfy the requirements of retribution and deterrence, and that this should be known as "the penal sanction" and be subject to appeal by either side. This new conception put forward by the committee will, I feel, be seen as a far more open and just method of specifying the time of minimum sentence to be served. I support this wholeheartedly and hope that it will be brought into effect as soon as possible.

Another new idea designed to meet the requirements of the European Convention on Human Rights is that release after the expiry of the penal sanction should depend upon the decision of a judicial tribunal composed of a High Court judge, a consultant psychiatrist and a chief probation officer. In defending his position the prisoner will have access to relevant documents, the right of appearance and the right of legal representation. The decision of the tribunal would be final. But of course the release of a life prisoner would be on licence and would afford the public the same degree of protection as at present, including supervision by a probation officer for the first few years and the right of the Home Secretary to recall a prisoner in an emergency. The matter would then be referred to the tribunal for its decision.

I am thoroughly in favour of the families of murder victims being better informed about the release of offenders than they are at present. It was a heartrending afternoon for members of the committee when the relatives of victims so bravely told us of their tragic problems.

I should like to make one final point. My noble friend the Minister announced on June 22nd of this year a substantial capital programme to improve prison conditions both this year and in the future. Whatever policies are adopted by the Government as a result of the report, those found guilty of the crime of murder are likely to serve long terms of imprisonment. That gives an opportunity, however slender, for rehabilitation. Millions of pounds are to be spent on prison improvement.

I hope that in planning for this expenditure serious consideration will be given to the subject of education and training of the staff of the prison service, of the probation officers who have to deal with lifers and also of the lifers themselves. During the evidence put before us that point was raised on several occasions. I am sure that expenditure on education and training of this kind would be one of the best forms of investment in the rehabilitation of the prisoner and would therefore lead to a reduction in the risk to society when and if such prisoners are released.

6.19 p.m.

Lord Morton of Shona

My Lords, as the first and only Scot, so to speak, who was a member of the committee, I shall turn quickly to the Scottish element. However, I should first pay tribute to the skills and efficiency with which our chairman took us through our duties, to the efficiency and hard work of Mr. Mohan our clerk, and to the contribution made by our specialist advisers.

Secondly, I wholeheartedly agree, although I shall endeavour to put it in different words, with the remarks made by the noble and learned Lord, Lord Lane, about terrorism. It would be entirely wrong to deal with terrorism as a specialist case and define crimes because of terrorism. As I see it, terrorism is an assault on the rule of law. It can properly be met only by applying the rule of law as it exists and not by changing or altering it to fit the terrorist.

Before turning to the definition of murder, I wish to mention one odd statistic which turned up in the report. It is rather startling. In England and Wales, it appears that roughly 25 per cent. of those serving life sentences have not been sentenced for murder. In Scotland, on the latest figures, there are 406 prisoners serving life sentences of whom 400 were convicted of murder; so the percentage is 1.5 per cent. That is a grave difference. The reasons were outwith our terms of reference, but it is something that might be worth examining.

I do not want to become involved in criticism of the English law of murder. It is beyond my capacity. I defend the Scottish definition of murder. I suggest that the difference arises out of the decisions of the House in the 1960s when the crime in England became one to be judged on the subjective intention of the accused. In Scotland we remain able to say that murder is an intention to kill, or wicked recklessness as to whether the victim lived or died. "Look at what you consider the accused did. If you consider"—a purely objective test —"that fits, he is guilty of murder, and you return a verdict of guilty".

It is difficult, as I see it, to have a subjective test and fit it with the right to silence and the onus of proof on the Crown. If someone sits silent and says, "Prove what I intended" one has to infer something. What it is that one infers, and how one approaches the inference, is one of the difficulties that I would not wish to take further.

The noble Lord, Lord Mishcon, raised the difference mentioned in our report whereby the murder definition did not need to be the same in England and Scotland but the penalty did. The view of those Scots in favour of the mandatory sentence was clearly, "If you recommend the other because of evidence from England, Wales or elsewhere, it will be totally intolerable to have the sentence different in the two jurisdictions". I am sure that that is right; but I bring to your Lordships' attention the fact that the Scottish position was far from unanimous. The judges of the High Court were not unanimous. Members of the committee who visited Scotland, apart from hearing my own well known views that the mandatory sentence should go will have met other judges of the High Court who take a similar view.

It is all very well for judges, advocates or the police to say, "It should be a mandatory sentence". The people who are perhaps the most concerned are those who have to deal with it—the prison governors and prison staff. They are not in favour of the mandatory sentence. If you look at the impressive evidence given by the Scottish prison governors, and the strength of their views against the mandatory sentence, your Lordships may well find it persuasive.

There is one part of the report upon which I have a reservation; that is, the suggestion that in Scotland we should have the right to appeal against too lenient sentences. I do not believe that we gave sufficient time to that topic. It would be a radical change in the Scottish procedures, and if such a change were to be put forward, it would need far greater consideration than we were able to give it. The main issue is the quality of murder. The majority of murders in Britain—I seem to have spent a largish part of the past 25 years in court dealing with murder in one shape or another—seem to have been accidental or spur-of-the-moment killings. The number of killings that are deliberate, or premeditated in the sense of being planned killings, are small.

Lord Hailsham of Saint Marylebone

Is small.

Lord Morton of Shuna

I am obliged to the noble and learned Lord. The robber fires his gun only if things go wrong for him. The drunken argument flares up in a pub and someone takes out a knife and lashes out without any intent or purpose except to hurt. A domestic argument reaches a crescendo and a kitchen knife happens to be handy. Those are the types of cases. The difference between attempted murder and grievous bodily harm, or assault with severe injury as it would be in Scotland, and murder, often depends upon the chance track of a wound or the distance the victim happens to be from hospital. It is surely wrong that the difference between a judicially selected sentence and a mandatory sentence should depend upon how far the assault was from the surgeon or upon the chance result of an impetuous lunge.

One type of premeditated, planned killing, is of course mercy killing. In the genuine mercy killing, many of us would regard it as inappropriate that there should be a lengthy sentence. I strongly take the view put by the noble Baroness that mercy killing should remain murder, but that the only way to deal with it fairly is to have a discretionary sentence.

It is difficult to see why the judge should be considered the appropriate person to impose the penalty for all crimes except murder and that for murder the civil servant and the politician should be those who, in effect, set the sentence. It seems odd. And we had no basis to show that that sentence was necessarily any more right. It is not obvious that it is the risk of re-offending. The law excludes from the definition of murder precisely those killers who, because of their liability to be provoked or because they suffer from diminished responsibility, are liable to re-offend. The most dangerous person in prison, as the prison staff and governors tell us, is not the average person serving a life sentence for murder.

The action of the junior Minister in increasing the judicial tariff is dangerously obnoxious for the reasons given by the noble and learned Lord the Lord Chief Justice. In effect, in case it should be considered that the Scottish position is put forward as better, it is in fact worse because the judge never comes in at all. It is a civil servant who eventually suggests to the Secretary of State that it is perhaps now time for the case to be referred to the Parole Board and the Lord Justice General. That, in a sense, is an even worse position.

It must be right that such killings should have the sentence put on them by the judge who, if his training has failed him, can be put right by other judges in the Court of Appeal.

Lord Mishcon

My Lords, will the noble and learned Lord forgive me if, before he sits down, I ask him a question out of fairness only? Does he accept that no one suggests a separate sentence for a terrorist or conviction of a terrorist when that does not apply to our present law? Would he agree that the Scottish definition of murder would cover a terrorist? I refer to the words in paragraph 38, displaying such wicked recklessness as to imply a disposition depraved enough to be regardless of the consequences". However, the definition in regard to English law which is suggested by the committee would not cover the case that would be covered by Scottish law.

Lord Morton of Shuna

My Lords, I would not presume to give a view as to what might be covered by English law. The answer is that the Scottish definition might or might not—depending on the jury's view—be viewed as murder. It is a matter for the jury to decide. If one takes the case of a bomb left in a shop, the jury might take the view that because of the warning given half an hour before, there was not that degree of "wicked recklessness". On the other hand, they might take the view that there was.

Lord Mishcon

My Lords, does the noble Lord agree that it would be rather dreadful if, north of the Border, someone were convicted of murder when, on the same facts, he would not be convicted south of the Border?

Lord Morton of Shuna

My Lords, that must happen now occasionally. Juries are different. It might happen through a jury in Cornwall perhaps taking a different view from a jury in Scotland of the same facts. I prosecuted in a case where three accused were charged with rape. For one reason or another they were tried separately, and separate verdicts resulted. That is bound to happen.

6.31 p.m.

Lord Prys-Davies

My Lords, I apologise to the noble Lord, Lord Nathan, for not being in my place when the debate started and he introduced the report. I too understood that the debate would not commence before 4.30.

At the outset, I wish to say that it was a great pleasure to serve on the Select Committee under the chairmanship of the noble Lord, Lord Nathan. He saw to it that we did not adopt too narrow a view of our terms of reference and that we were not to be tempted in these turbulent days to turn the clock back. The noble Lord was anxious that we should travel beyond Westminster, which we did; that we should take evidence in Scotland, which we did. He was anxious that we should visit murderers serving life sentences in prison and read letters from such prisoners, which we did. He was anxious that we should take evidence from victims' relatives, which we did; and that those of us who had not attended a "lifer panel" of the Parole Board should do so.

Again, he made sure that we took full account of the requirements of the European Convention on Human Rights and how other legal systems approached the problems identified in the committee's terms of reference. For those reasons, I felt immensely grateful for the steering which he gave to the committee and also for the advice which we received from the two specialist advisers. We are grateful to our clerk, Mr. Tom Mohan, for his very hard work on behalf of the committee.

I merely wish to say a few words about three or four matters. First, do we have the right definition of murder for England and Wales? It is clear from the discussion in the House that this is obviously a complex question. It soon became evident to the committee's thinking, notwithstanding the powerful evidence that we received from the noble and learned Lord the Lord Chief Justice, that we should aim at a statutory definition. We arrived at that decision mainly for the reasons which have been advanced by my noble friend Lord Mishcon from our Front Bench. There has been much uncertainty over the past 10 years about the meaning of the offence.

From the outset, I was very conscious of the significant speech of the noble and learned Lord, Lord Edmund-Davies, in the Cunningham case which was heard in 1982. I took the precaution of asking the noble and learned Lord whether the view which he expressed in 1982 was still his view in 1988. Your Lordships will recall that he said that he found it strange that in England and Wales a person could be convicted of murder if death resulted from, say, the intentional breaking of another's arm, where the offender had not foreseen the possibility of death. He went on to say that he looked forward to the day when Parliament would set out what the law on murder ought to be.

Is the definition recommended by the Select Committee too narrow? Is it too wide? The committee was mindful throughout that the terrorist poses a threat to modern society. The committee was concerned whether or not the definition was adequate. I think all that can be inferred from paragraph 76 of the report. But we concluded that it was neither satisfactory nor desirable to distort a definition in order to deal with the reckless terrorist. I should have referred to the terrorist throughout as the reckless terrorist. I think the noble and learned Lord, Lord Chief Justice Lane, has confirmed that terrorist would in any case be liable or could be liable to life imprisonment.

The terms of reference raised another important question: should imprisonment for life remain a mandatory rather than a maximum penalty for murder? As our inquiry proceeded, I found it difficult to believe that a life sentence should be imposed in every case of murder, irrespective of the circumstances of the crime and irrespective of whether or not there was the risk of a murderer committing a second murder on being released. That points towards abolishing the mandatory sentence.

In addition, I became much impressed by the vivid evidence given by the prison officers, the probation officers and the prison governors in Scotland. These are the people who have to cope daily with life prisoners. Almost without exception and in all humanity they pressed that the life sentence for murder should become discretionary. They gave us evidence of the unsettling effects of the indeterminate sentence on life prisoners. We were told how it creates problems within the prison at a time when there is an increased burden on our prisons. Prisoners are unable to plan for a day on which they know they will be free. We are told that this leads to anxiety, frustration and deterioration in the ability of prisoners to cope.

I formed the impression—I put it no higher than that—when listening to the evidence from those in positions of higher authority and at a distance from the prisons, and also possibly when listening to the speech made by the noble Earl, that they were not aware or fully aware of the difficulties experienced by life prisoners within the prison walls. We know the committee has recommended that the mandatory life sentence be abolished. It has been said by some people that this would be a leap in the dark, primarily because it is felt that the sentences for murder would thereafter vary considerably from judge to judge. I believe that the answer to that criticism has already been given. We have the appeals system, which would ensure against unduly lenient or unduly harsh sentences.

It is clear from the report that all members of the committee were deeply concerned at the disclosure that during recent years the Home Office had increased the tariffs set by the courts. It seemed to us that in the perception of the Home Office the role of the judge is to advise and that of the junior Minister is to decide. The committee believes that it is the job of the judge, who has seen and heard the defendant and the witnesses, to decide the penalty, and that that penalty should be announced in open court and should be the subject of appeal.

I believe that the members of the committee were also deeply concerned about the complaints which surfaced from evidence given by two organisations representing families of victims of violence. They complained of the insensitivity of the trial procedure to the feelings and interests of the families. They also complained of how they were kept in the dark about the impending release of the prisoner to the community without notice. The evidence is to be found in Volume III of the report. Those complaints having been brought to our attention, strenuous efforts must surely be made by the Home Office to seek to rectify the difficulties. Perhaps the Minister can say more about the action which is being taken to meet both criticisms. The noble Earl referred to one criticism, but we have heard of two.

I should like to say something about mercy killers. I must confess that initially I wrestled seriously with the question of whether a special or a qualified defence of mercy killing should be available where a person other than a doctor or a nurse hastens the death of a terminally ill person who is in great pain, suffering and anguish, and does so at his request. In those circumstances, to bring to an end the pain, suffering, anguish and possibly the sense of hopelessness would appear to some people to override all other considerations. Such a defence was supported by two of the witnesses who gave evidence. The point was then made that the committee had not heard full arguments on this contentious issue.

I was also taken by the point that if the life sentence becomes a discretionary sentence for the crime of murder that will enable the courts to take the full circumstances of the offence into account when passing sentence. That offers a solution. The label of murder will continue to apply to mercy killing. Many will say that it should apply because the intentional killing of a human being breaches the fundamental principle of the sanctity of human life. It seems to me that that last argument must be sound. I should like to thank the House for having given me the opportunity to serve on the Select Committee.

6.47 p.m.

Lord Ackner

My Lords, it is a tribute to the relaxed efficiency of our chairman, the noble Lord, Lord Nathan, that the committee was almost unanimous. It was unanimous on the definition, which may seem surprising in view of the warmth of some of the speeches that have been made. We have often seen the noble Lord, Lord Mishcon, standing in a white sheet, but never in a kilt.

Those of your Lordships who have not had the disadvantage of a legal training may be surprised that there is this degree of disagreement and may wonder why. The explanation is very simple and, when fully understood, should reduce some of the emotion in the discussion.

Everyone is agreed that the definition of murder must include the intent to kill. Everybody is agreed that that is too narrow because, if it is limited to the intent to kill, many murderers will not be successfully prosecuted. This point is recognised by the Scottish definition which is to be found at page 16, paragraph 38: Murder is constituted by any wilful act causing the destruction of life … Note the next words: "whether intended to kill"—now we have the extension: or displaying such wicked recklessness as to imply a disposition depraved to be regardless of the consequences. The Scots therefore wish to extend the offence from the ordinary intention to kill to something additional. The English have done it on the basis that in addition to the intent to kill it is sufficient if the prosecution proves an intent to do grievous bodily harm.

Both systems are therefore agreed that the intent to kill alone is not sufficient. To satisfy both jurisdictions something extra is required. The only disagreement is how one defines the extra element which must go beyond the ordinary straightforward meaning of intent.

The approach of the Scots is very fully argued by my noble and learned friend Lord Goff in the article which is reproduced in the first volume and, I respectfully think, very cogently answered by Professor Glanville Williams. If we are to change the English law we must do it by a statutory definition; otherwise it stays where it is. We would be hotly criticised if we provided a statutory definition which lacked precision and which made it Impossible for the jury to focus on specific elements but which left them with a broad moral response.

It may be that in Scotland juries are less sophisticated or more prepared to remain silent. In England that is not the experience. Juries frequently come back and say, "You have told us that the common law is x. Would you please assist us by explaining what you mean by intent?" If we had adopted in statute the Scots' definition and the jury came back and said, "Would you kindly explain to us what 'wicked recklessness' means?" that would defy any precise definition.

When we were up in Scotland, receiving all the hospitality and more that one would expect from the Scots, we were invited to listen to a summing up in a murder case. I waited with enthusiasm to hear "wicked recklessness" mentioned, not once but several times. The High Court judge who was summing up never mentioned it at all. In its place he mentioned the word "evil" on six occasions. I wonder what it would be like if that had occurred in England and the jury sent a note asking for a definition of what was meant by "evil". That is the reason why we have not accepted, for a statutory definition, the Scots approach.

That is recognised by my noble and learned friend Lord Goff in the very article which he wrote. On page 119 of the report, five lines from the bottom of the penultimate paragraph, my noble and learned friend, Lord Goff, says: I must confess however that, having regard to the emotional content of the adjective 'wicked', and the ambiguity inherent in 'recklessness', I would prefer to describe the concept as indifference to death". So he does not want the terminology used. Let us consider what he does want used. "Could not care less" was a rather throwaway observation; that is, not caring whether the person lived or died.

Emotions are always raised by reference to the word "terrorist". Perhaps I may try to explain the situation both under English law and, subject to correction, under Scots law. Under English law the Lockerbie case would be the clearest case of murder one can think of, either under our present common law definition or the statutory one. The person clearly intended to kill. That is why he put the bomb on the aeroplane.

Let us consider the case which is referred to in order to attack either English law as it stands at the moment or as we propose it. That is the case of the terrorist who plants a bomb, let us say in a well known store, rings up and says, "There is a bomb planted. It will go off in an hour's time. I suggest you evacuate the shop immediately". An evacuation takes place but someone does not hear the warning to leave, remains behind and is killed.

Under the approach of my noble and learned friend Lord Goff the terrorist is entitled to be acquitted of murder because no one could say that he could not care less. He had gone to all the bother of telephoning, running the risk of being identified, and given a warning. Under English law it would be a matter for the jury to decide whether or not they believed his story and what they thought about it. In neither case could one predict certain conviction or acquittal. However, under the approach of my noble and learned friend Lord Goff of "could not care less" there is a complete defence: "I cared so much that I took that particular action".

Further, if we adopted the Scots' approach we should be re-introducing into English law—if not entirely, then substantially—the concept of the objective approach: what would a reasonable person have inferred, anticipated or foreseen? Parliament rejected that concept by statute many years ago. I do not know whether the noble Lord, Lord Mishcon, wants the clock put back in that regard.

In addition the approach of my noble and learned friend Lord Goff of "could not care less" would involve the reckless driver in future being convicted not of causing death by reckless driving but of murder. The drunken driver, who is an excellent example of "I could not care less", would also be convicted of murder.

Your Lordships will find at the end of Professor Glanville Williams' article on the final page of the first volume, referring to the proposal of my noble and learned friend Lord Goff, the following: Certainly the proposal would widen the law of murder, but it achieves this coverage only by a rule that makes everyone who consciously risks a lethal outcome technically guilty of murder, except that the rule is sufficiently abstruse to admit of being applied or not applied according to the condemnations or sympathies of the moment. It may be a good way of enabling judges and jurors to reach the result that they want on the particular facts without taking much thought; but it does not provide an informative rule of law". The committee was not prepared to produce a definition which did not provide an informative rule of law.

Perhaps I may deal finally with the example of the desperate father cited by my noble and learned friend Lord Goff. I am astonished to find him suggesting that under the definition we proposed—which is very similar to the current definition in common law but merely adds a slight restriction that with serious bodily injury the accused must have appreciated a risk, however small, of death—the desperate father would be convicted of murder. I am sorry that my noble and learned friend is not here so that I could read again to him the definition of intention set out in paragraph 71 on page 25: A person acts 'intentionally' with respect to … a result when he acts either in order to bring it about … The suggestion that the father wishes to bring about the death or personal injury of his child when in order to prevent its death he drops it out of the window is, in my respectful submission, totally unsupportable.

Perhaps I may now turn to the question of the mandatory life sentence, which we suggested should be abolished leaving the discretion to the judge to impose a life sentence where he thinks it appropriate. I should like your Lordships to accept that that is a very moderate proposal. I say that for this reason. If noble Lords look at paragraph 102 on page 32, they will see that in 1965, during the debates in this House on the Murder (Abolition of Death Penalty) Bill, there was a strong body of opinion that the sentence for murder should be discretionary. The opposition to the present mandatory sentence was led by the then Lord Chief Justice, Lord Parker of Waddington, who moved an amendment at the Committee stage to make the sentence discretionary. His amendment was accepted by 80 votes to 78. Eleven peers who held high judicial office voted. All but one were in favour of the amendment. That one was the noble and learned Lord the Lord Chancellor, Lord Gardiner, who I understand was anxious that such an amendment did not queer the prospect of the death penalty being abolished.

The other reason I suggest that the proposal is a moderate approach is because of what happens in practice at the moment. Your Lordships have heard from my noble and learned friend the Lord Chief Justice that immediately after the sentence is imposed, in order that the Secretary of State for Home affairs can carry out his obligation under Section 61(1) of the Criminal Justice Act 1967, he consults both the trial judge and the Lord Chief Justice as to what should be the period of the sentence—which is an indeterminate sentence, life imprisonment—which should be served to satisfy, to use rather the pompous terminology, deterrence and retribution. Punishment is a simpler word.

That period of years is fixed. Let us say that in a given case it is 12 years. Subject to the risk factor being accepted—that is, the authorities being satisfied that the prisoner is safe to be released—that is as a generality the period that will be served. So the judiciary is in many cases—in murder cases—imposing determinate sentences now. It wants to be able to continue to do that, not behind closed doors with confidential letters to the Secretary of State but in open court so that the defending counsel has an opportunity to mitigate before the judge pronounces and has the opportunity to appeal if the judge gets it wrong.

Perhaps I may make one final observation in reference to Scotland. I detected, as did others, that one of the main reasons for resistance in Scotland to a determinate sentence being available for murder was anxiety that the public might lose confidence in the administration of criminal justice by reason of excessively lenient sentences being imposed from time to time. As noble Lords have heard, there is no Section 36 of the Criminal Justice Act 1988 in Scotland. Therefore, if they have an excessively lenient sentence they are landed with it, whereas the Court of Appeal here has power to increase sentences and, as noble Lords will recall, has done so recently in two cases—an incest case and a case of causing death by reckless driving. If Scotland had that provision—I know that in some quarters they are resistant to it; there was resistance in this House—that particular anxiety would go. As my noble and learned friend the Lord Chief Justice said, a tariff will soon eventuate from guidelines from the Court of Appeal. They will be enforced by virtue of the power of appeal being given to the prosecution and of course to the defence.

That is all that I wish to observe. I commend our moderation in regard to the abolition of the mandatory life sentence and I hope that the wisdom of a statutory definition has been sufficiently made out.

Lord Mishcon

My Lords, before the noble and learned Lord sits down, I may be able to help him to come before the House in a white sheet, especially in the absence of the noble and learned Lord, Lord Goff. Perhaps I may therefore be allowed to complete the quotation of which the noble and learned Lord gave only half, from what the noble and learned Lord, Lord Goff, said on page 119. He said: I must confess however that, having regard to the emotional content of the adjective 'wicked', and the ambiguity inherent in 'recklessness', I would prefer to describe the concept as indifference to death". The noble and learned Lord ended the quotation there, but it goes on as follows: But that is just a matter of words. Let me however add this, that it must in any event be inherently desirable that the crime of murder should be the same both north and south of the River Tweed".

Lord Ackner

My Lords, I think I have made it clear that the matter of the words of the noble and learned Lord, Lord Goff—"could not care less"—is wholly inappropriate. As regards the desirability of the position being the same north and south, that point has been recognised in the committee's report. The committee has also pointed out that both jurisdictions get on very well together despite a number of marked differences in their criminal law.

7.5 p.m.

Lord Campbell of Alloway

My Lords, it is always a great privilege to follow the noble and learned Lord, Lord Ackner. It reminds me of the days after the war when we went on the Western Circuit together. I was about to take up the forensic cudgels, in the best of humour, with the noble Lord, Lord Mishcon, on the logic and content of his approach and on how it held together and where it led. But it would be otiose for me to do any such thing because, as one would expect, it has all been done by the noble and learned Lord, Lord Ackner. So the speech that I intended to make will be a much shorter speech. I also wish to shorten my speech by taking on board everything that has been said by the noble and learned Lord, Lord Morton of Shuna, and by the noble Lord, Lord Prys-Davies.

It has been a privilege and, for me, an education to work on the committee under the chairmanship of the noble Lord, Lord Nathan. The first point I should like to make—I do not think it has yet been made and certainly it is not in any speech notes that I made—is that the report contains many recommendations which may be considered separately and accepted or rejected on their merits; for example, the definition of murder, or whether there should be any definition of murder —that is terms of reference (a); or the discretionary life sentence—terms of reference (b); and decisions on release—terms of reference (c). Each of those and its component recommendations within those terms is open to consideration, acceptance or rejection by the Government on its merits.

I am particularly concerned with the new dimension which is terms of reference (c)—the decisions on release. As the noble Lord, Lord Nathan, our doughty chairman, said, there is an interaction between each of the terms of reference. For example, one will find within category (a), where we define murder, that we conclude that no categorisation of murder is possible. That interacts in its turn on terms of reference (b), which affects the discretionary life sentence. That interacts back on terms of reference (a), the attitude to mercy killing, and so on and so forth. So it was right that our chairman, the noble Lord, Lord Nathan, should have regard to the report as a whole; but the report does not have to be accepted or rejected as a whole.

I hope the noble and learned Lord, Lord Ackner, has convinced noble Lords that the question simply did not arise with the committee that, because we concluded that there should be the same conclusion on life sentence for both sides of the Border, the disparity on the substantive law of murder north and south of the Border did not, so to speak, matter. That was not the way in which we approached our duties. The difficulty was that north of the Border—and we must face that there is a different ethos—"wicked recklessness" has a certain Calvinist connotation which is well understood by both judges and juries. If one were to seek to transplant that concept of wicked recklessness into the English law of murder, it would import a source of totally unacceptable confusion. In this regard the speeches made by those noble and learned Lords, the Law Lords, must surely carry very great credence in this House.

One of the problems is that, on a very perilous analysis which the noble and learned Lord, Lord Ackner, sought to destroy, the noble and learned Lord, Lord Goff, would import down here south of the Border and into English law the concept of recklessness. That is what he wants to do in one form or another. Why? It is because he is determined to catch the terrorist. As the noble and learned Lord the Lord Chief Justice pointed out, that is a misconceived approach—I was about to say a mischievous approach but it is not —for the reasons given by the noble and learned Lords, the Lord Chief Justice and Lord Ackner. It is quite wrong to legislate for special cases. That answer and approach, and in particular the approach of the noble and learned Lord, Lord Morton of Shuna, provide the answer to the presentation of the noble and learned Lord, Lord Goff.

As the noble Lord, Lord Mishcon, was shrewd enough to observe at the outset, it was a great sorrow for some members of the committee—and that certainly included the noble Lord, Lord Morton, my noble friend Lord Windlesham who is in his place and myself—that we could not give consideration to the unitary offence of unlawful killing as it lay outside our reference. Such consideration that we gave to it took place elsewhere other than in the committee room and cannot find its place in the report. We were unanimous save for one recorded dissent—it is at pages 63 to 64. But we came to the committee without personal preconceptions.

The committee was comprised largely of laymen. Much has been rightly said to the credit of the chairman and clerk, but I should like to pay tribute to the process of your Lordships' House by which this committee was selected with so many laymen. I do not understand how it is done and believe that it is arranged through the usual channels or whatever. However, that was very helpful and welcome. As I said, we all got down to our work without preconceptions and it was a true effort and exercise of composite wisdom.

The new dimension is of the greatest possible importance having regard to the position of Her Majesty's Government under the European Convention on Human Rights. It is considered on page 48, paragraphs 182 to 188. To save time, the point made by my noble friend Lord Colville of Culross also should be taken aboard without repetition. Nonetheless, taking it aboard, the new dimension of jurisprudence affects both life sentences and fixed sentences, as was mentioned the other day at Question Time.

It is proposed that the decision-making process as to release will now be undertaken by a tribunal which has the characteristics of a court in conformity with the human rights convention. It would be wholly independent of the executive. That is crucial if we are to comply with our obligations under the convention. Such was the evidence received from Professor Trechsel from the European Commission who gave oral evidence to the committee.

That is perhaps one of the most important aspects of the report. It may be controversial because, like all government departments, the Home Office does not enjoy relinquishing power and at the moment this matter lies within the power and province of the Home Office. It should not; it should not lie within the Executive. It is contrary to our obligations. That is why I stress that new dimension, in the knowledge that it will not be a popular concept for any government to accept. But popular or not, it is right. It is inevitable. It must be taken seriously.

Furthermore, as part of the new dimension the system of private communication between the Home Office and the judiciary will end. All judicial observations on sentence would be made in open court and subject to appeal. The system under which a recommended sentence can be increased on the say-so of some junior Minister in the Home Office would end. That greatly distressed and shocked all members of the Select Committee when it was discovered exactly what happened. The noble and learned Lord, Lord Morton of Shuna, has already referred to the system in Scotland which in his view is slightly worse, if anything. But it was a matter of surprise and concern to all the witnesses who came to give evidence before the committee. Heaven forfend that your Lordships should read the evidence! But if your Lordships read it, it will be seen that witnesses were taxed with that situation. The committee asked: Did you know that this went on? Did you know that the junior Minister in the Home Office increased the sentences? They said no. We said that we did not know either when we started but that now we knew and that was the form. We showed them the evidence and asked them what they thought about it. They were horrifed.

That system will end if our recommendations are accepted. Retention beyond the period of judicial sentence would now have to be justified in all cases by the Executive before the tribunal, a High Court judge, a consultant psychiatrist, and the chief probation officer. The hearing before that tribunal would be conducted according to appropriate procedures and be subject to judicial review.

Finally, the committee recognises that the so-called mandatory life sentence at times works injustice and is seen by not only the public but those convicted, the victims and their relatives as a sham and a nonsense, which in fact it is.

7.20 p.m.

Lord Monson

My Lords, I too must start by apologising to the House and to the first three speakers for having missed their speeches. I had been informed that the debate could not possibly start before five o'clock and was more likely to start shortly before six. As a layman one is accustomed to declaring that one takes part in legal debates of this importance with considerable trepidation. The trepidation is accentuated today by virtue of the distinction of the legal speakers and the fact that almost all other lay noble Lords taking part are either members of the Select Committee or known specialists in this field. Like other noble Lords, I should like to pay tribute to the committee for the mental, and indeed physical, effort that it has put into producing this formidable and impressive report.

I enter the fray for two reasons only. The first is that I have expressed views on this issue in this House from time to time over the years. The second is a feeling of unease that there sometimes seems to be a tendency among people of great intellectual distinction to overlook, or at any rate to be dismissive of, the views of ordinary people, or to give the impression of so doing, which produces the same result. It cannot be helpful for the body politic when a state of affairs persists in which between 70 per cent. and 80 per cent. of the population firmly believes—justly or unjustly, I am quite prepared to believe that it is unjustly—that "them", the authorities, the powers that be, the establishment, the great and the good, the liberal consensus, call it what you will, are soft on crimes of violence against the person. It is crimes of violence against the person which concern the man or woman in the street: few of them lose much sleep over forgery, embezzlement or even arson unless somebody is hurt thereby. That is why one of the main recommendations, and possibly the most important recommendation, of the Select Committee is so much to be welcomed. I refer of course to the proposal to introduce determinate sentences for almost all those convicted of murder—something, I feel, that should have happened almost 30 years ago.

One matter that seems scarcely if at all touched upon in the report is the understandable confusion in the minds of most people, even highly literate and highly numerate people, arising from the mingling of what might be termed gross and net sentences. Banner headlines in the tabloids shriek, "Twenty years for bomber". What that means is that an individual convicted of planting a bomb which has killed one or more people has been sentenced to life imprisonment, the judge having recommended that he serve a minimum of 20 years in prison. The very next day the same tabloid newspaper—along with most of its readers—waxes indignant that latter-day great train robbers who, like the original ones, have used a relatively minor degree of violence, have been sentenced to 30 years in prison. That is ostensibly a 50 per cent. more severe sentence than that meted out to the murderer the previous day although the editor, if not his readers, ought to be well aware that a nominal 30 year sentence means that only between 10 and 20 years will be spent in prison, except in exceptional circumstances.

Of course some, like the noble Baroness, Lady Platt and the witnesses she cited, maintain that murder is a unique crime which merits a unique sentence. But apart from the fact that a life sentence is quite often imposed for crimes other than murder, it is an inescapable fact that the notion that "life" means nine years is deeply embedded in the consciousness of the British public. Nothing that those in authority can say to try to refute this will convince the public of anything other than that the authorities are trying to pull the wool over their eyes.

Apart from that, a determinate sentence of 40, 50, 60 or 75 years is far more dramatic and awe-inspiring, and hence far more deterrent in its value, than a life sentence can ever be. Therefore the recommendation in paragraph 201 can be welcomed unreservedly.

However, on the recommendations of paragraphs 202 to 209 inclusive, a few tentative queries may be in order. First, is it really necessary to retain life sentences even for the very worst cases of murder? Could not the same result be achieved much more dramatically and therefore much more effectively from the point of view of deterrence and of satisfying perfectly justifiable public demands for retribution by copying the United States of America and imposing 99 year sentences, subject to the normal remissions and rights of appeal? If the proposals of the noble Lord, Lord Carlisle, regarding parole in relation to the crime of murder are adopted, as one hopes that they will be, an individual sentenced to 99 years in prison would have to serve 49 years in prison before his release. That is surely enough for anybody. But if it is not enough, there is nothing to stop a nominal sentence of 120 years being imposed.

On the other hand, where life sentence is thought to be appropriate not because of the particularly heinous nature of the crime but because of a fear that the offender may possesss chronic homicidal tendencies, might not the answer be the imposition not of life imprisonment but of two sentences to be served consecutively? The first would be a straightforward determinate sentence subject to the usual remissions equivalent to what the committee terms, very usefully, a "penal sanction". After being served, the penal sanction, subject to remission. would be followed by an indefinite period of what might be termed consequential confinement or consequential restraint. I urge inclusion of the word "consequential" not because of the convenient alliteration, but because it is essential to make it clear to all that such confinement or constraint could be tagged on to the end of an existing sentence only for a very serious crime and could never be imposed in isolation.

The late John Braine, the author, once told me that the future penal system that he feared most was one in which people were sent to prison not for crimes they had committed but for crimes which some anonymous civil servant or doctor felt they might possibly commit at some unspecified time in the future. That is an apprehension that I share. Hence the absolute necessity for the word "consequential" or some synonym.

The form of consequential constraint in practice might range from the released individual having to report to the police on occasion, having to report on more frequent occasions, undergoing quasi-probation, or being confined in a secure mental hospital or an open or closed prison depending on the danger that the individual was thought to represent. Should physical confinement have to apply, the detainee should not be treated as a conventional prisoner but should have access to superior food, possibly even the occasional drink, better recreational facilities, more letters, visits from relatives, and, ideally, the ability to earn money at normal wage rates instead of the artificially low rates that normally pertain in prison. The end result would not differ very much from what is proposed in paragraphs 206 to 209 inclusive of the report. But the terminology would be different, and any residual punitive element would be eliminated.

Working backwards through the remaining recommendations, the proposal in paragraph 210—that families of murder victims should be kept informed of release conditions—would surely be warmly welcomed throughout your Lordships' House, and indeed among the public at large.

On the question of mercy killings in paragraph 200, I cannot help feeling that there is a lot to be said for the Law Commission's recommendations. I acknowledge that it is a minority point of view.

On the recommendation in paragraph 198—that using excessive force in self defence should be treated as manslaughter rather than murder—the danger would seem to be that juries who at present, one suspects, are inclined to bring in a "not guilty" verdict in exasperation at a murder charge having been brought in the first place, would be readier to return a guilty verdict if the initial charge were manslaughter. There must be some who welcome this. I do not, given the subjective nature of the word "excessive".

On the precise definition of murder, I am still undecided, having read with absolute fascination the duel between my noble and learned friend Lord Goff and Professor Glanville Williams and having listened to the contending arguments in the House today. The definition of murder proposed by the Select Committee seems on the narrow side—but that is a minority view. Paragraph 191 rejects the idea of introducing first and second degree murder as exists in the United States of America. That is a conclusion that I regret.

I believe that to members of the general public manslaughter evokes the image of a railway signalman who, having had a night out with the lads, falls asleep in the signal box, thereby causing two inter-city trains to collide at speed. Alternatively, it is the image of a baggage handler at Heathrow who, in his anxiety to clock off to meet his girl friend, omits to secure the catch of the door to the cargo hold with the result that the plane decompresses and explodes at 30,000 feet. Both crimes may lead to many deaths but those responsible are totally innocent of any criminal intent.

It is deeply distressing and wounding to the family of the victim when people who deliberately kick to death a total stranger outside a pub and are then charged merely with manslaughter when a charge of murder—even if classified only as second degree—appears to be more appropriate. For that reason I still believe that there is much to be said for the concept of two degrees of murder. After all, it works perfectly well in the United States.

Having urged more relaxed and comfortable prison conditions for those who must be detained beyond the period of "penal sanction", as defined by the Select Committee, I now balance that by making a radical suggestion which doubtless will cause many liberal hands to rise in horror—namely, that for those convicted of the most heinous and shocking forms of murder, prison conditions during the initial months or years—a psychologist would know the appropriate period—should be made less comfortable. In a nutshell, they should be made austere and rigorous and such a policy might be termed "rigorous" imprisonment.

The Earl of Longford

My Lords, does the noble Lord believe that he will find prison officers—who, we know, are average citizens and reasonably humane—ready to enforce such conditions? My experience is that today in Britain one will not find people who will carry out those brutal instructions.

Lord Monson

My Lords, I do not believe that what I am suggesting is brutal. I have not specified what I mean; I have left open the question of exactly how rigorous imprisonment should be. I do not suggest physical brutality. The noble Earl will be aware of the short, sharp shock policy—

The Earl of Longford

That failed anyway.

Lord Monson

My Lords, it may or may not have failed —

Lord Campbell of Alloway

My Lords, I thank the noble Lord for giving way. He has made an interesting and important point. However, according to the evidence that we heard, the noble Earl is right. I do not believe that prison officers would implement the regime. If the noble Lord is going to do away with the life sentence in favour of the determinate sentence, does he not in certain cases see the value, for the protection of the public, of the liability to recall which runs with a life sentence? If that is so, how does he compensate if he does away with it?

Lord Monson

My Lords, I have already proposed that there should be a period of consequential confinement. I am sorry if the noble Lord misunderstood; perhaps I did not explain myself clearly. It would have the same effect as retaining a life sentence but would have a different name and would ensure a more relaxed and easier regime as it would be for the protection of the public and not for punishment or deterrence. As regards whether prison officers would be prepared to operate an intensified version of the short, sharp, shock treatment, I do not suggest physical brutality. But the question needs to be investigated. At least I should like to be allowed to expand upon the principle and rationale behind the suggestion.

It is often argued that deprivation of liberty is sufficient punishment in itself. That is only partially true. Open prison is much less of a punishment than normal, closed prison. An up-to-date, hygienic closed prison is much less of a punishment than a rat-infested, insanitary Victorian pile. Detention in itself is not the be all and end all.

The introduction of the concept of rigorous imprisonment would have a number of advantages. First, it would take much of the heat out of demands for the reintroduction of capital punishment. I remind the House that it was public demand for the reintroduction which led to the restoration of capital punishment in several states of America. Improbable though it may now appear, it is not beyond the bounds of possibility that public opinion in this country and possibly in France will swell to such an extent that one day it is restored.

My proposal would also help to convince the families of the victims that justice was being done. It would save money and resources by enabling shorter sentences overall to be imposed for the most heinous crimes. If the recommendations contained in the report are adopted it will be necessary for a judge to impose a sentence of at least 50 years for the most vicious murders. Of that, 25 years must be served if the Carlisle recommendations are adopted. If the concept of rigorous imprisonment during the first few years were introduced a sentence of 35 years would probably be sufficient. Of that 17½ would be served; that is, two and a half years under a rigorous regime and the balance under a normal regime.

This would have the added advantage of conforming with two principles. The first is widely agreed, the second less widely so. The first principle is that punishment as opposed to deterrence and rehabilitation should always follow as closely as possible upon the crime. The second principle, which may be less widely agreed, is that it is not entirely seemly to continue to punish a mild, middle-aged man or woman for an act or acts of violence that they committed during the wild days of their adolescence. Let the punitive element therefore come at the beginning of the sentence.

I submit that the adoption of the principle of a short period of rigorous imprisonment at the beginning of a long sentence for the more abominable cases of murder would not only please the public and the victims' families and reduce the burden upon the Exchequer and prison services but would in the long term be to the advantage of the prisoners.

7.37 p.m.

Lord Macaulay of Bragar

My Lords, I add my congratulations to the noble Lord, Lord Nathan, and his committee on the comprehensive and informative report which they have produced within their terms of reference. It was a painstaking exercise which makes fascinating reading. It has produced a series of recommendations which in due course will lead to considerable debate when and if legislation follows in order to implement those which the Government accept.

I wish to dwell on a matter earlier referred to by my noble friend Lord Mishcon. It is the terms of reference under which the committee operated. It is stated in paragraph 2 under the heading "Limitation of the terms of reference": The Committee wish to make clear at the outset certain limitations of their terms of reference. First, under point (a) they were not empowered to recommend that the offences of murder and manslaughter (in Scotland, murder and culpable homicide) should be combined into a single offence of unlawful homicide". I detect a note of regret in that sentence. Perhaps in reply the noble Lord, Lord Nathan, will indicate whether the committee would have been happier if granted the facility of considering whether the crime of murder should have been eliminated in favour of homicide, justifiable, unlawful or some other such category. It appears that that limitation was an extremely constricting factor in the considerations of these important matters.

It is the existence of the name "murder", with the emotive connotations which it carries in the public mind, allied to the associated mandatory life sentence for the crime, which causes so many problems in society and in prison administration. We know that death is caused in such a variety of methods that they are almost indescribable. Every year there is something new in the methods by which people kill other people. They do so in such varying circumstances that to some of the crimes the word "murder" is attached and to others it is not. Therefore, it becomes a matter of judgment for the prosecuting authorities to decide to which cases the title should be ascribed in charging a person. Sometimes it is because of the nature of the crime itself. In some cases which are borderline and there is a sufficiency of legal evidence, with a n element of public interest involved, the prosecuting authorities feel obliged to leave it to the jury to decide whether the events should be categorised as murder or some lesser crime.

Much of the supplementary material in the appendices to the report makes reference to the various categories of homicide in other countries. It is plain from those appendices that the omission of the consideration of whether the crime of murder should continue in the law of the United Kingdom is a major defect in the final shape of the report.

Of course its absence also has an effect on the matter of sentences for causing the death of other persons and the terms of their release. That seems to me an unfortunate omission, as the question of the abolition of the term "murder" is one which comes up day in and day out on almost every occasion on which this sort of material is discussed. I can say that if the word "murder" was removed from the calendar of crime, in practical and economic terms it would have the effect that people would be prepared to plead guilty to unlawful homicide, subject to the explanation of the circumstances going before the presiding judge, when they would not put their hands up, as the saying goes, to murder because of the connotations that I have already mentioned.

This year I have conducted three unnecessary murder trials at great public expense—that does not relate to my fees but to the general expenses surrounding the matter. In those three cases there was no answer to the question of killing but in none of those cases would the accused admit that he was guilty of murder. In each case there was a trial and in each case the jury found the accused guilty of culpable homicide. That is why this matter is of extreme importance and has ramifications throughout the legal system.

The committee has heard much evidence on the question of homicide as opposed to murder. The circular letter sent out from the Council of Europe, which your Lordships will find at page 69 of the report, seeks information initially not on the question of murder in each state but whether each state from which information was sought distinguished between: different forms of the crime of homicide". That accounts for the welter of information which has been put before the commitee. It is only at question 3 of the letter that the subject of murder arises and it continues until question 6. The initial focus of the letter is on the matter of homicide as opposed to murder and it has elicited some fascinating and terrifying information from the states which responded.

Some of the sentencing policies of other countries make United Kingdom sentencing policies very light for homicide in general but, as in all these matters, there are qualifications which lessen the initial impact of the information; for example, as regards what actually constitutes a life sentence.

I have dwelt on that for some time because, as the committee has heard and received an abundance of information on the various forms of homicide as opposed to murder, it would be unfortunate if that knowledge and expertise which it has acquired could not now be fully used in considering whether the crime of murder should be retained in the criminal law of the United Kingdom. I no doubt make myself very unpopular with the members of the committee in saying that it is my view that, if it is technically possible, the terms of reference should now be widened in the light of information received and it should be asked to produce a supplementary report on that vital issue. Of course that will have an effect on the other matters considered at length in the report.

Murder has been with us in the criminal law for a long time and it may be that in modern times, with modern-day juries, the time has come to abolish it altogether. It causes problems all round. It has an emotive ring in the public ear, and even the parliamentary one, which, taken with the mandatory sentence of life imprisonment, has not always achieved justice for the individual offender. He is immediately put in a special category of prisoner. He is a "lifer". Indeed, the whole issue of murder is so deeply entrenched in our custodial system that it is still not unusual within the prison system to have prisoners, even untried prisoners, categorised as "capital" cases where they are charged with murder. That follows on as a legacy from the days of capital punishment, which incidentally was another issue which the committee was not allowed to discuss. While I ask for the committee to reconsider whether murder as a crime should be eliminated, I am not so enthusiastic that it should under wider terms of reference be asked to consider the issue of capital punishment because that is a subject on its own.

At this stage in the consideration of the committee's findings it is not possible to argue in detail for or against any of the proposals, there being 20 of them. That can be done if and when legislation is introduced. Therefore, I look at the report in general.

The committee has attempted to redefine murder for England and Wales at paragraph 76. In so doing it has eliminated from the definition what are called "reckless" killings. I find objectionable in that approach that, as is shown in paragraph 72, it would apparently exclude terrorists or anybody else who, should not be liable to be convicted of causing a prohibited result unless he intended to cause, or was reckless whether he caused, that result". There is much discussion in the report about intention and foreseeability. However, that approach seems to me to restrict the power of the prosecuting authorities, for example, to prosecute a person who had telephoned to say where the bomb was, as has already been mentioned, for murder. If the bomb is not found in time or goes off accidentally before the time and someone is killed, is the person who planted the bomb not to be charged with murder? Surely that is manifestly against the public interest and it cannot in all conscience be correct that a person who plants a lethal bomb, whether or not a terrorist, should not be prosecuted for murder on the basis that the result of the planting of the primed bomb went further than he intended. That is surely a matter for the jury to decide in the light of the explanation tendered by the accused and all the circumstances surrounding the event rather than the prosecutor pre-empting that option.

Much has been said about the Scottish definition of murder. Perhaps I may say that we have sophisticated juries in Scotland and they return sophisticated verdicts, depending on which way you want it to go whether you are defending or prosecuting. However, juries have no difficulty in understanding in Scotland what is the crime of murder.

As the second home-based Scot to speak in this debate, I should say that we in Scotland are not trying to ram the Scottish definition of murder down English judicial throats. In any event they find it hard to swallow and it would be a fruitless exercise. However, the definition is there for consideration as an element in trying to reach a meaningful definition of murder.

I believe that there has been misinterpretation of what the Scottish definition is all about. It is about two things: first, a wilful act—and I repeat "wilful". For example, if a person walks up to somebody with a shotgun, sticks it in his chest and blasts it off, one does not need the second category of "wicked recklessness". However, in the absence of that, a jury is entitled to look at all the evidence retrospectively in deciding whether the accused has displayed such wicked recklessness as to imply a disposition depraved enough to be regardless of the consequences.

In simpler terms that means that if the jury finds that the person did that act deliberately—that is, the planting of the bomb—in a place where people or property will be affected by a possible explosion, with the perpetrators not usually knowing or even caring who will be there at the time, and people are killed, the jury should be entitled to find that person guilty of murder as the law stands, and that is entirely a matter for the jury.

Much criticism has been made of the phrase "could not care less". Using that phrase is an attempt to put the matter in colloquial terminology, and that is what it amounts to. Juries very seldom come back and ask the judge what is meant by "wicked recklessness". Perhaps it is the very simplicity of the definition which is causing the problem and causing problems at the other end of the scale in the attempt to reach a statutory definition in England and Wales.

The legal system has to be careful not to get itself into situations where the public perception is that it is not doing its job in protecting the citizen and apprehending and convicting the guilty as well as acquitting the innocent. It is important that the law does not get bogged down in academic concepts which, while interesting from a jurisprudential point of view, do not get down to the basics of a reasonably simple approach to definition and the making of a decision for the jury—one which they can readily comprehend.

There should be a balancing point where the law and common sense meet. That is one of the reasons for the continued existence of the jury system. Professor Glanville Williams, in the paper already referred to, speaks rather scathingly of what he calls "jury equity" as being sometimes illusory, and bases that comment on the result of one case and one case only. There will always be cases in which lawyers, or even the public, will disagree with jury verdicts, either of guilt or acquittal, but as long as the system forms part of the criminal process that will remain so.

The Scottish definition of murder is said to be pragmatic. If so, it is none the worse for that provided that it is not unfair. Long experience in the criminal courts shows that it works and that juries tend to understand it in its pragmatic simplicity, and they always have the choice of finding that the degree of criminality and guilt in each case do not come up to the standard required for murder and to convict of the lesser crime of culpable homicide. That approach has been rejected by the committee on the basis that the word "wicked" is too emotive. It does not do to split "wicked" and "reckless" into two separate units and look at them separately. One must bring the two together. If the words "wicked recklessness" are run together, one gets the true concept of the Scottish definition. It is up to the authorities in England and Wales to make their own decisions on these matters.

The new definition, if I may venture into uncharted seas as far as I am concerned in English law, may not necessarily resolve the problems arising in earlier cases where appeals have been taken, and will merely add another layer to the definition of murder. As has already been said, inevitably it will land back in the Appeal Court for clarification. The main difficulty will be proving, by inference or otherwise, that the person charged did the act, "being aware that he might cause death". The problem in murders, particularly in what one might call spontaneous murders (some carried out with great viciousness), is that at the time it is unlikely that the criminal was intellectually considering or aware in the way defined that he might cause death. But when the act is looked at retrospectively in court it is plain, assuming that he is fit to plead, that he should have known of the possibility, for example, that by stabbing a person in the area of the heart he might cause death. Is he to be acquitted on the ground that at the time of the event he was not aware that such an act might cause death? A charitable jury might find him guillty of manslaughter, but it is difficult to see how this definition could work in all practicality.

Mention is made of intention to cause serious personal harm. Surely if the intent is to cause serious personal harm, it is difficult to draw a borderline between that and an attempt to cause death as a consequence. The present definition will lead to a fragmentation of the law and will take the definition no further.

I do not propose to take up any more of your Lordships' time on other matters which I had intended to raise but most of them have been referred to in previous contributions from others in your Lordships' House. This is a report which will cause a great deal of debate in the months to come and I look forward to the stages to follow.

7.53 p.m.

Lord Allen of Abbeydale

My Lords, at this late stage of the debate I rise with some diffidence since, although there was a time when I was involved in the kind of issues we have been talking about this evening, it is all some years ago and I am only too conscious that my personal knowledge is getting out of date. I can only hope that that fact does not show too prominently in the remarks that I shall make this evening.

We are all grateful to the noble Lord, Lord Nathan, and his colleagues for their report and the illumination it sheds on these difficult issues. They are issues which are not made easier by the fact that we do not yet have any indication of the attitude of the Government to the Carlisle recommendations about the parole system. This is a system to which the arrangements contemplated by the committee would have to be hitched, but the Minister when he spoke—which now seems some time ago—made it clear that we must wait a little longer before we know what the Government's conclusions will be. We do not know whether the Government are prepared to resile from the two decisions taken in 1983 about refusing parole to those serving sentences of more than five years for certain types of offence and about keeping in prison for at least 20 years those murderers convicted of certain categories of crime. The first of these was condemned from all round the House a few weeks ago and the second, as the noble Lord, Lord Mishcon, reminded us when he spoke, comes in for deserved criticism in this report.

There is another underlying problem of quite a different nature which has long bothered me. That is the difficulty of the trial judge in looking so far ahead when he feels obliged to impose a very long sentence or recommend a very long minimum period of detention in a murder case. I realise that not all judges find this a great problem, but some do.

There are two aspects. First, the judge does not necessarily have full information about the prisoner when he passes sentence. It can happen, for example, that an accused may be mentally disturbed—to use a neutral phrase—but he instructs his lawyers to defend him on the ground that he did not do the deed. This means that if that defence fails, evidence about his mental condition will never have been fully before the court. I well recall that in the days of capital punishment the detailed inquiries which were made about the convicted prisoner before a final decision was taken sometimes brought to light relevant information which came as quite a surprise to the trial judge when he was consulted. To be fair, one advantage of going over to determinate sentences would be that the judge would then be given information about the prisoner's antecedents before he passed sentence; a procedure which is hardly in point if the only formal sentence available to the court is life imprisonment.

The second problem relevant to the judge's decision at the trial is the difficulty of knowing how an individual is going to develop over 25 or 30 years in custody. I realise that these problems have arisen in the past mainly in respect of convictions for crimes other than murder, but this report serves to underline very clearly this possible significance for the future.

I turn to the report itself. In speaking about it I shall confine myself to England and Wales and avoid discussing the definition of the law of murder. I am bound to say that I have been inclined to the view put to the committee by some distinguished witnesses that murder is a uniquely serious offence in that it involves the intentional killing of another human being and it should attract a distinctive penalty to mark the revulsion with which society regards such a crime.

I am not sure that I agree with the point put by the noble and learned Lord the Lord Chief Justice in evidence—I know he will not mind me saying this as it is not a legal question—that that revulsion is marked by the verdict of guilty of murder rather than by the imposition of a distinctive penalty. I thought, on the contrary, that The Times put it rather well some time ago when it said that life imprisonment for murder is a penalty with an eloquent judicial symbolism in that it declares that those who deliberately take another life lose the right to the free use of their own whether in custody or when released on licence which runs until they die. That is an approach to which the Minister referred in his speech.

Having said all that, I fully recognise the force of the arguments for going over to a discretionary sentence which are so well set out in the committee's report and which have been elaborated in a number of speeches today. I am very conscious of the fact that a new element has been introduced by the power which the Court of Appeal now has to increase a sentence. Even though the right of appeal is likely to be more freely used by the defence than by the prosecution, in time it is likely to result in standards being set by the Court of Appeal for the guidance of trial judges.

I do not think that the case for doing away with the mandatory sentence is as clearcut as all that. I listened with close attention to what the noble Baroness, Lady Platt of Writtle, said this evening and I read with interest the proposition which she put to the committee, tucked away as it is in some obscurity in the minutes at page 64 of the report. It is a proposition that is aimed at maintaining the mandatory penalty. She was in a minority of one as does sometimes happen to members of her sex. But the views she advanced then and which she spoke about tonight would command support from quite a number outside the membership of the committee.

For my part I must keep an open mind until I can see the picture as a whole more clearly than I am able to at present, including the arrangements for parole on which we are still awaiting decisions and the arrangements for the release of life sentence prisoners. As I shall explain in a moment, I would like some clarification on that matter, as the noble Earl, Lord Longford, and the noble Lord, Lord Hutchinson of Lullington, and the noble Viscount, Lord Colville of Culross, have said.

Before dealing with that, if the decision is finally to give up the mandatory sentence, I am doubtful about retaining the defence of diminished responsibility. It was borrowed from Scotland in 1957 as a means of softening the impact of the mandatory sentence. Although I know it has acquired a life of its own and that it continues to flourish north of the Border, I still feel that if the mandatory sentence goes, that defence should probably go too in England and Wales.

I now turn to my questions about release. If to some extent I go over ground that has already been tilled, I make no apologies for that as I wish to put the questions in my own way in what is a very important area. My first problem relates to the case where the offence is of especial gravity. We have already had the last words of paragraph 178 read to us but I believe that the House can bear to hear them again: The Committee expect that their proposals will lead to very lengthy penal sanctions being set in the most grave cases. In some cases, this may result in imprisonment for the rest of the prisoner's life These words are slightly ambiguous but they seem to contemplate that there may be offences that are so grave that the judge will find it necessary to say that imprisonment for life means exactly what is says. As far as I can see, the report does not specify any maximum for the penal sanction and if it is to be life, and if that sentence is upheld on appeal, it follows from the committee's report that no Minister can at any stage interfere.

What then happens about remission and parole? As the noble Earl, Lord Longford, said, it is impossible to earn one-third remission on a sentence which runs until death. If the individual knows from the start that he can never be released what incentive does he have to be of good behaviour? Is it not putting a burden on the prisoner, on his family and also on those responsible for his custody greater than can reasonably be borne? It may indeed prove necessary to keep a prisoner in custody for the whole of his life. There may well be some in prison now who will never be released. But to say right at the outset that the case can never even be examined when a young man or woman may have 60 years of life ahead seems to be going too far. If the words in paragraph 178 which I have read out do not mean this I wonder what they do mean.

My second difficulty arises in the more usual case where the combined results of remission and parole have the effect that the individual can complete the penal sanction and be considered for release at a certain date; but the question of whether he can actually go out then is decided by a judicial tribunal. Incidentally, I find it slightly odd to see described as a judical tribunal a body of three of whom only one is a judge. Whether the tribunal has to be unanimous, whether the judge can be outvoted, or whether it sits in public, I do not know. Nor is this form of procedure the only one likely to be acceptable to the European Court of Human Rights. But all that is by the way.

The question on which I seek enlightenment is where the information is coming from on which the tribunal comes to a decision and of what nature it will be. The Parole Board must already have taken a view on risk before deciding that so far as it was concerned the prisoner could properly be released since it is a prime function of the board to consider what the prisoner's prospects are of leading a good life on release. It has to look to the future whereas remission looks to behaviour in the past.

I am puzzled to know just what are the considerations which the tribunal has to take into account from those which the Parole Board has to consider and where that new information comes from. Is it for the Home Secretary through counsel to make his own inquiries and then to put the case for continued detention notwithstanding the decision of the Parole Board? I wish the noble Lord, Lord Campbell of Alloway, were here. He said that it would be for the Executive to put the case for continued detention but I do not find anything to that effect in the report itself.

Will the prisoner be given legal aid to have a representative to rebut that evidence, whatever it may be and wherever it may come from? If the Home Secretary sees no objection to release, will the judicial tribunal rubber stamp the Parole Board's recommendation or is it expected to make fresh inquiries of its own and, if so, of whom?

These are not pettifogging technical details; they are matters on which we must be informed before we can grasp the whole picture. I was somewhat encouraged to know that the present chairman of the Parole Board himself does not quite see how the machinery is intended to work as described in the committee's report.

There are a great many other points which one could touch on including the risk which the noble Earl the Minister referred to of reports not being genuinely honest and frank if they are all to be made public. I have been speaking for too long. I shall limit myself to one more brief point before I sit down.

In paragraph 178 the committee says: After the introduction of a discretionary sentence for murder, the Committee anticipate that the average length of time served under a life sentence would be considerably longer than it is now". I do not think that the committee means "anticipate", but I shall let that pass. Like the noble Earl, Lord Longford, I find this passage rather ambiguous. Is the committee saying that under its proposals individuals are likely to be kept in prison longer than are prisoners at present who have been convicted of comparable crimes? There are, after all, a number who have already been in prison for more than 30 years. If the committee means that, I regret it. I cannot see why that follows from the committee's proposals. If it does not mean that, perhaps I may humbly suggest that it might have been more happily phrased.

I am sorry to end on this somewhat querulous note. I should like to reaffirm that the inquiry has been a most useful one. It has succeeded in eliciting some slightly surprising information and in throwing a beam of light on what is at present a somewhat confused and gloomy picture, even though more has to be done before we have in front of us a complete new picture sharply in focus.

8.12 p.m.

Lord Windlesham

My Lords, I too served as a member of the Select Committee under the admirable chairmanship of the noble Lord, Lord Nathan. I share the embarrassment of others in having missed our chairman's opening speech, for which I apologise.

This varied debate has been a worthy response to the report. A number of pertinent points have been raised, including those of the noble Lord, Lord Allen of Abbeydale, who has just spoken. Although it is a matter for the noble Lord, Lord Nathan, rather than for me, I am sure he would agree that we would welcome an opportunity to discuss some of these important practical questions with the new Home Secretary when he has had an opportunity to settle in, and before he decides on the Government's response to the proposals contained in the report.

To anticipate the possiblity of a meeting of that kind, perhaps I should say straight away to the noble Lord, Lord Allen of Abbeydale, that where we refer to a discretionary life sentence for murder being imposed were the mandatory sentence to be abolished, there would always be a penal sanction; that is, a fixed period within the life sentence. He should read paragraphs 177 and 178 in the light of that explanation.

Lord Allen of Abbeydale

My Lords, I have read those paragraphs four times. I cannot read that point into them as they stand. But the statement which the noble Lord has just made is of great importance. It will be of great interest to all those who have taken part in the debate.

Lord Windlesham

My Lords, that is why, in assisting the Home Office to consider the implications of our proposals, a meeting of the kind I have proposed would be constructive.

I listened closely to all the speeches made in the debate, but I listened to none closer than the opening speech of my noble friend Lord Ferrers. He avoided committing the Government, as was proper on an occasion of this sort, so it was more a matter of tone and emphasis. However, I do not think I was alone in detecting a certain coolness towards the committee's proposals. Therefore I should like to present to the House, and through it to the Government, two arguments at this stage of the debate. The first relates to the mandatory life sentence, and the second to release decisions.

The mandatory life sentence was a compromise introduced in 1965 as part of the accommodation reached on the abolition of the death penalty. We have already heard that, so far from its being sought by the judiciary, the Lord Chief Justice of the day and others who had held high judicial office and spoke and voted in the House at the time did not wish to have a mandatory penalty. They wanted the courts to have sentencing discretion for murder with a maximum penalty of life imprisonment in the same way as that maximum applied to other grave crimes. It was not the eventual outcome, however, so we have now a penalty which is unique in the sense that the court has no power to vary it. The penalty for murder is prescribed by Parliament. It is not imposed by the judge. It is unique to that extent. On the other hand, life imprisonment is precisely the same penalty which applies for a number of other grave crimes. The previous symmetry between the uniqueness of the penalty, when capital punishment existed, and the crime of murder no longer pertains.

We have been left with half that inheritance, from which a great deal of the consequent problems have arisen. A mandatory penalty must by definition apply to all convictions of murder, irrespective of the circumstances. It is this inflexibility that has undermined what should be regarded as the most severe of all the penalties known to the law. Apart from a brief and unsuccessful interlude between 1957 and 1965, the law has never recognised categories of murder. What has been the result? The consequence has been that the only way to bring about a relationship between the degree of punishment which is appropriate to the circumstances of the crime is to adjust the amount of time spent in custody. However, this process of adjustment is decided not by the judge who has seen the defendant in court and heard the case against him, but by Ministers of the Crown who may be influenced by other considerations. It is self-evident that murders vary as much as any other crime in their heinousness—hence the emergence of the tariff and the complicated way in which the tariff system has evolved and been administered.

If the trial judge is allowed, as we propose he should be, to select the appropriate penalty—whether it is a fixed, determinate sentence suitable to mark the gravity of the offence, or whether it is in certain circumstances a life sentence—the result should be a smaller total number of life sentences. As we say in the report, we envisage that the sentencing court would use the life sentence, generally but not exclusively, in two situations: first, where there is an exceptionally grave murder; "outrageous" is the word used —a crime which is deeply offensive to public opinion; and, secondly where the circumstances may not have been so grave but where there was a high element of risk, often revolving around the mental instability of the offender. The number of life sentences would be markedly smaller but—this answers one of the many pertinent points raised by the noble Lord, Lord Allen—the average period spent in custody by those sentenced to life imprisonment, because it would be used with greater selectivity, would be longer. If that happens it would contribute towards what the Home Office states is an objective of the system of criminal justice; namely, that it should command greater public confidence. Such a change would therefore be entirely in tune with what is one of the essential planks of the Government's current policies.

I turn to the second argument which I put before the House this evening. It concerns the way in which the decisions on release are taken. Here the issue is not whether to change it, but how to do so. We should be quite clear that the current procedures are simply indefensible; and no one has attempted to defend them in this debate. Nor did anyone attempt to defend them in evidence before the Committee. The Home Office must accept the fact that the procedures are untenable in the present situation.

The first problem is one of sheer comprehension. Other than my noble friend Lord Colville of Culross, who followed me at the Parole Board, and the noble Lord, Lord Harris of Greenwich, who preceded me, there are very few people in Parliament or in public life outside the Home Office, and only a handful of people in penal reform groups, who actually understand what is involved in the release procedures. That cannot be right. The process is so complex and so intricate that it taxed the collective mind of the Select Committee in a way which no other issue did.

Despite the patient, helpful and detailed explanations which we received from Home Office witnesses who gave evidence more than once, both orally and in written form, and evidence from my noble friend Lord Colville and his colleagues on the Parole Board, it became clear to the committee that the superimposition of successive procedural layers resulting from quite different pressures over a period of 20 years or so had led to an apparatus that commanded little or no support outside official circles. The most objectionable feature was only too evident to all: the setting in private of a tariff—an ugly, distasteful word, but one which is in general circulation—which served as the quantum of punishment. This, as has already been said in the debate, is disclosed neither to the defendant nor to his legal adviser; nor is it subject to representations of counsel; nor is it subject to appeal.

Let us be clear about what is the central objection to the current system. It is that it transfers the responsibility for punishing the errant citizen from the independent judiciary, where it properly belongs in our constitutional arrangements, to a branch of the Government.

There have been cases in our domestic courts over the past few years—the Handscomb case is one such that is referred to and explained in our report; and there have been some others—which have resulted in changes being made in the release and recall procedures applying to life sentence prisoners. Other cases have been brought before the European Commission on Human Rights and the European Court of Human Rights. There are four current cases which have been admitted by the Commission, which are now pending a hearing of the court next year.

It is inevitable there will be further changes. Anyone who has studied the matter is aware that there will have to be changes for the reasons which I have given; because the procedures simply do not conform either with what our own courts regard as proper practice or with the requirements of the European Convention on Human Rights by which we are bound and in which British jurists played an important part in the original drafting.

There is an alternative now to be faced. Either we can go on patching and mending, reluctantly introducing such changes as must be made to come into line with the requirements of the courts, political pressures or demands from whatever other source. That is one way, with which we are only too familiar as the result of past experience. But there is a rational alternative, which is to seek out an improved process which conforms not only with the European Convention—although I am aware that is not politically the most popular argument to bring into play—but which also corresponds with the traditions and principles of the common law. That is the path outlined in the report. I say to your Lordships that in my mind, and in that of my colleagues on the committee, there is no doubt which is the better way.

8.25 p.m.

Lord Harris of Greenwich

My Lords, it gives me great pleasure to follow the noble Lord, Lord Windlesham. I must say that I totally agree with the contents of his speech. I think that he and the rest of the House will agree that this has been one of the most interesting debates which we have had in the area of criminal justice policy for some years. There has been substantial disagreement on one issue; that is, the question of the new statutory definition of murder as recommended by the committee.

However, on the other two principal proposals—namely, the abolition of the mandatory life sentence and the question of whether judges rather than Ministers should make a decision in terms of the release of life sentence prisoners—I think that there has been strong support for the recommendation of your Lordships' committee. Before becoming involved in some of these issues I should like, in beginning the process of winding up the debate, to make one or two references to speeches which have been made.

I shall refer first to the speech made by the noble Lord, Lord Allen of Abbeydale. If I may say so, I think that it is a great pity that the committee was denied his presence as a member. He is without doubt the leading authority on the very issues we were discussing. I hope that in the future the usual channels will be far more sensitive when approached on such matters. However, I shall leave the matter there.

I very much agreed with the noble Lord, Lord Allen, in one sense. It is extremely difficult to form a final view on some of the recommendations of the committee without knowing what the Government's response will be to the report of the noble Lord, Lord Carlisle, on the parole system. Like the noble Lord, I very much hope that we shall receive a White Paper on the subject in the relatively near future. No doubt the noble Earl will be able to help us on that question this evening.

The Carlisle Committee was strongly critical of the procedure introduced by Mr. Brittan in 1983 when he was Home Secretary, in terms of creating two categories of potential parolees—that is, one where the case would be considered on its merits; and the other, the restricted category, where there would be an assumption that people would not get parole. The committee said that the policy was flawed in principle. I agree with that view.

But, I say in addition to that, that all the evidence we received showed that the second leg of the "Brittan policy"—namely, that applied to life sentence prisoners—was just as objectionable and had done grave damage to the morale not only of inmates but also of governors and prison staff. That view was repeated to us at prison after prison which we visited. Indeed I think that every member of the committee who visited prisons would confirm what I say on this particular question.

The second matter that I want to mention is one introduced by the noble Lord, Lord Mishcon. I agree with him entirely that it was a great pity that our terms of reference did not allow us to look at whether there should be one offence of unlawful homicide. We are not, however, in a strong position to complain about that because we should have raised the question when the Motion went down on the Order Paper.

The third speech to which I wish to refer at this stage is that of the Minister. The noble Lord, Lord Windlesham, and I, who have both had the opportunity to make speeches on a report of your Lordships' committees when sitting on the Government Front Bench in the past, tend to look for the code words which indicate whether the Government are attracted, or otherwise, to the proposals. I fear, like the noble Lord, Lord Windlesham, that I found that the Minister was cool on all three issues. I do not propose to become involved in the question of the new statutory definition of murder, but I did note that the Minister indicated some polite scepticism about it and went on to quote apparently with warm approval, the statement on that issue made by the noble and learned Lord the Lord Chief Justice when he gave evidence to the committee.

Strangely enough, on the second matter upon which we made recommendations—namely, the abolition of the mandatory life sentence—the Minister did not quote the noble and learned Lord the Lord Chief Justice with approval. That may give us some indication of the Government's preliminary attitude. I hope that I am wrong. Obviously the Home Secretary could not have looked into this question, given the fact that he has held his present office for only a relatively short time. However, I detected, from what the Minister said, that he and his colleagues are far from being persuaded that our proposal on that question is right. That is a great pity.

The noble Baroness, Lady Platt, who, as she said, put forward a minority report on that issue, said that she feared that public confidence would be at risk were we to move away from the mandatory life sentence. I fear that the opposite is true. There is deep public scepticism at the moment about what the life sentence means. The noble Lord, Lord Windlesham, and the noble Viscount, Lord Colville of Culross, will confirm that there is a general belief among many people, otherwise well-informed, that a life sentence means nine years. Of course it means nothing of the sort. That is an average of the length of sentence of those who have been released. There is little public confidence at the moment in the present life sentence procedure which is hardly surprising.

Let us consider one or two typical cases; first, the case of a man with a shotgun who murders a security guard when trying to rob a security van of a considerable sum of money. That is murder. There is an intent. He is rightly convicted and sentenced to life imprisonment. Secondly, we have the case of a woman in the terminal stages of a grave illness. She is dying. She begs her husband to help her kill herself. He helps her and she dies. That is murder. It is murder because there is an intent to kill. How can it be right that a judge is obliged to pass the same sentence in those two cases? That does not help public confidence; it erodes public confidence. That is one of the reasons why I believe our recommendation is right.

I move on to the third question which is whether judges rather than Ministers should decide when life sentence prisoners should be released. When he came to that point, the Minister said that, with respect to the recommendation for a tribunal, the committee might have taken the view that there was safety in numbers. That is not why we came to our conclusion. We came to our conclusion because we were appalled by the highly undesirable practice of Ministers becoming involved in that process and the way in which they were using ministerial power secretly. There was no question of a break with tradition, which is how the Minister described it. The position of Ministers in that matter, and the reason why they are involved in the first place, as they are not involved with armed robbers or people convicted of theft, is that until 1965 we did not have mandatory life sentences; we had a mandatory sentence of death.

At that stage, Ministers had to decide whether to recommend to the Sovereign that there should be a reprieve. That is why Ministers became involved in the process. The question now, a substantial period after the passage of the 1965 Act, is whether we should review that position. For a number of reasons, that is now inescapable whatever the Government want to do. That came out extremely clearly, if I may say so, in the speech of the noble Lord, Lord Windlesham.

I wish to deal with that issue at some length because it is fundamental to the committee's report. As the Minister will be aware, until 1983, under a procedure which was instituted by the noble Lord, Lord Can, when he was Home Secretary, and my noble friend Lord Hunt was chairman of the Parole Board, there was a joint committee of the board and the Home Office which considered the cases of all life sentence prisoners at the three to four-year stage. The existence of that committee has been referred to. It consisted of the chairman of the Parole Board, the vice-chairman, who was always a High Court judge, a consultant psychiatrist and two senior Home Office officials. They decided whether to fix a date for the first review of a prisoner's case by the local review committee in, say, a further four or five years' time or, alternatively, to ask that the case be referred back to them after a period of years because of the impossibility of determining, at that stage, a date when it would be sensible to refer the case to a local review committee.

My noble friend Lord Hunt and I considered that that system worked well. However, as we know, in 1983 that system was scrapped by Mr. Brittan on the grounds set out in paragraph 134 of our report. I am bound to say that I find the arguments that he advanced in favour of his new policy extremely difficult to take seriously. It was said that the committee fixed a firm LRC date in only 50 per cent. of cases. That of course was one of the advantages of the system. It was the precise reason why the noble Lord, Lord Carr of Hadley, set up the joint committee in the first place.

As for Mr. Brittan's suggestion that this sytem was unsettling to prisoners and staff, all I can say is that having visited the prisons as we did, it is impossible to overstate the hostility of prison staff and inmates to what has arisen since 1983.

In a Statement made on 30th November 1983, when announcing the abolition of the joint committee of the Parole Board and the Home Office, Mr. Brittan said that in future Ministers would decide the date of the first reference of a case to the LRC following consultations with the judiciary. He added that the first review would normally take place three years before the expiry of the period necessary to meet the requirements of retribution and deterrence.

I think we may now establish some possible motives of Mr. Brittan in abolishing the joint committee. As a result of asking the judiciary for their comments three years after conviction, rather than at the time when the Parole Board was examining the case, Ministers have become far more able to influence the length of sentences. Although of course a Home Secretary was always able to refuse to accept a positive recommendation from the Parole Board, he invariably did so on the grounds of risk and not on the issue of retribution and deterrence, the matter specifically referred to by Mr. Brittan in his Statement of November 1983. In my own experience as chairman of the Parole Board, the views of the Lord Chief Justice on tariff were accepted both by the board and by Ministers.

As we now know, that is no longer the situation. When Home Office officials gave evidence to the committee, we were told that in a substantial number of cases a junior Minister had set a tariff higher than that recommended both by the trial judge and by the Lord Chief Justice. We asked for further information and this was given to us. We can now measure the extent to which the abandonment of the joint committee system has led to a massive increase in ministerial intervention.

In a six-month period in 1984—that is the year after the introduction of the new policy, the first year of Mr. Brittan's new system—Ministers increased the trial judge's recommendation in 80 cases out of 195, in other words, roughly 40 per cent. of cases. In a similar period two years later, in 1986, they increased the trial judge's recommendation in 25 out of 78 cases, or roughly 30 per cent. of cases. Last year, they established something of a record. They interfered with the judicial recommendation in the majority of cases. As the noble Lord, Lord Mishcon, said earlier, in 63 cases out of 106 mandatory life sentences, Ministers set a higher tariff than that privately indicated by the trial judges.

The Earl of Longford

My Lords, will the noble Lord permit me to intervene? Like myself, he has been a junior Minister and he knows that they are not all that important in their department; they are treated fairly lightly. Where does one place the responsibility for these extraordinary decisions?

Lord Harris of Greenwich

My Lords, that is extremely difficult to answer. I am just putting as fairly as I can the evidence that was given to us by the Home Office. I think it is a pity that it took the appointment of the Select Committee before we discovered this in the first place. If it had not been for the appointment of this committee, we should never have known what was going on.

That leads to a question to the Minister: why was Parliament not informed about what was going on? I am sure that he will be able to tell us. When was the Lord Chief Justice told what was going on? Was he ever told, or did he find out about it from the newspapers when the report of what Home Office officials had told us was published? I very much hope that we shall receive answers to these questions.

As the House will be aware, your Lordships' committee takes the view that the question of tariffs should now be a matter for the judiciary and the judiciary alone to determine, and that this should not be revised either upwards or downwards by Ministers. Following Handscomb, that is now the law in the case of discretionary life sentence cases. We believe that this should now be applied to all life sentence cases.

The present procedures are I believe a denial of the basic principles of natural justice. A confidential letter is sent by the trial judge to the Home Office via the Lord Chief Justice. The trial judge had the advantage of having seen the prisoner and possibly heard his evidence. He makes his recommendation. As we heard this afternoon, the Lord Chief Justice has immense knowledge of dealing with life sentence cases. This year alone he is dealing with 300 cases. Therefore in his experience as Lord Chief Justice he has obviously dealt with thousands of cases. He sends his views to the Home Office.

As we now know, in many cases these views are simply ignored. Last year it was the majority of cases. By a stroke of the pen a junior Minister, who has no direct knowledge of the case, except from the summary which is prepared by the department, or of what the appropriate tariff should be, simply adds a few years to the judicial recommendation. The process is conducted in secrecy. No one knows about the criteria by which the decisions are made or indeed whether there are any criteria. The prisoner knows neither of the judicial recommendation nor that it has been altered by a Minister.

However grave an offence a prisoner has committed, he still has certain rights. One of the most fundamental is that he should be told at the earliest possible stage how many years he will have to serve to meet the requirements of retribution and deterrence. That is why it seems clear that the decision on tariffs should be announced in open court.

I come to my final point. I support the proposal that the decision on release should be entirely judicial. To answer the noble Lord, Lord Allen of Abbeydale, I would prefer it to be a judge with two assessors, but that is for Parliament to decide. It became quite clear to us, as a result or the evidence which was given to us by a senior representative of the European Commission on Human Rights, that the Government will have to move on this issue, whether they wish to or not.

Under the European Convention a decision on release has to be taken either by a judicial tribunal or by the Executive, subject to review by a judicial tribunal. In this situation, I can see no advantage in maintaining a role for the Executive. As any prisoner who is turned down for release by the Executive would automatically appeal to the tribunal, it is obvious that it would be a waste of scarce resources to introduce a two-stage process. It would be far better to establish a new judicial tribunal which would make that decision.

I end as I think the noble Lord, Lord Windlesham, did. The present situation—

Lord Allen of Abbeydale

My Lords, I am sorry to interrupt the noble Lord but again we seem to be eliciting some very valuable pieces of information which have not been set out in the report. Would I be right in thinking that it is a considered recommendation of the committee that the judicial tribunal should consist of a judge, supported by two assessors?

Lord Harris of Greenwich

No, my Lords, it is not. I indicated that that was my view of the matter. I think that questions of this sort are a matter, first, for the Home Office and then for Parliament to determine. There was no decision by the committee on the issue. I merely gave my own view of the matter.

In conclusion, turning to the speech of the noble Lord, Lord Windlesham, I agree with him. The present situation is indefensible. Change is coming. Why cannot we on this occasion anticipate it rather than waiting to be dragged once again to the European Court of Human Rights which will then have to impose its decision upon us?

Lord Campbell of Alloway

My Lords, perhaps I may intervene. Surely paragraph 185 at page 48 includes the recommendation which was called in question. I am open to correction if I am wrong and I apologise, but I think that I am right.

Lord Harris of Greenwich

My Lords, with great respect to the noble Lord, Lord Campbell of Alloway, it always gives me immense pleasure to agree with him. However, I do not think that that paragraph deals with the specific question put to me by the noble Lord, Lord Allen of Abbeydale. I indicated that my belief was that it would be better to have a judge helped by two assessors. However, it may well be that if the matter had been voted on by the committee, the members might have taken a different view.

8.50 p.m.

Lord Irvine of Lairg

My Lords, I apologise for not having been in the Chamber during the speech of the noble Lord, Lord Nathan. I was absent for the same reason as that given by other noble Lords.

It should be acknowledged that the subject of this debate has been a report of special quality, lucidly and economically written. At one level the issues that it addresses are of the highest professional technicality, providing scope for the most sophisticated levels of professional disagreement among lawyers. Your Lordships have been entertained by the difference between the noble and learned Lord, Lord Goff of Chieveley, and the noble and learned Lord, Lord Ackner.

At a more fundamental level the report addresses the ethical questions of how the legal system should respond to the taking of life by one human being of another. It has addressed the related questions of how murder should be defined and whether the mandatory life sentence should continue so as to underpin society's abhorrence of murder. The series of decisions by the courts which are set out in the report show how confused and uncertain the law has become. They are the best arguments for legislation. Was an intention to kill necessary or was an intention to cause grievous bodily harm sufficient? If either was sufficient, was constructive, not real, intention sufficient, so that if the natural and probable consequence of the defendant's conduct was that death or grievous bodily harm would result, then in law he was to be presumed to intend death or grievous bodily harm and so be a murderer? Was any intention to kill or cause grievous bodily harm unnecessary because an awareness of a high probability that the result of the conduct would be death or grievous bodily harm sufficed?

The committee has concluded that murder should be defined by statute. The noble and learned Lord, Lord Lane, warns against the dangers of over-intellectualisation of this area of the law.

The committee has proposed a definition which, it should be noted, may require two subjective states of mind. It is plain that an intention to cause death will suffice. However, if the intention is to cause serious personal harm, there must also be an awareness that death may be caused. Therefore, of this proposed definition it is fair to ask: will it resolve the old uncertainties in an acceptable way or will it do no more than institutionalise them?

The committee would also like to have the word "intentionally" defined by statute and it recommends the definition which other noble Lords have read out: A person acts intentionally with respect to a result when he acts either in order to bring it about or being aware that it will occur in the ordinary course of events". If the defendant has not been acting in order to bring about serious personal harm, then his conviction could be secured only by proving that he was aware that in the ordinary course of events serious personal harm would result from his conduct and also aware that he might cause death. The second awareness, as I understand it, requires not an awareness that in the ordinary course of events death will result but merely an awareness that death is a possible consequence of his conduct. Therefore the jury has to be satisfied that the defendant was aware that in the ordinary course of events serious personal harm would occur and also aware of the possibility of his causing death.

The definition would, I suppose, catch Smith who drove with the police officer clinging to the bonnet, but I am not so sure about Mrs. Hyam. Was she aware when she put the petrol through the letterbox and lit it that serious personal harm would occur in the ordinary course of events? Does "in the ordinary course of events" mean that which is generally likely to happen? I can foresee juries asking for guidance about what is meant by "in the ordinary course of events". The words are no doubt intended to qualify and dilute an awareness that serious personal harm will occur. If it is a balance of probabilities that is intended, the definition should say so. If it is not a balance of probabilities, I have difficulty in understanding it.

I agree with the noble and learned Lord, Lord Goff, that the definition of murder should correspond to the understanding of ordinary people; but I doubt whether I share his perception of that ordinary understanding. Public detestation of terrorists and all their doings is undoubted, but I would beg leave to question whether ordinary people, once satisfied that a particular terrorist did not intend to kill, would regard him as a murderer. I agree with the noble and learned Lord, Lord Lane, and the noble Lord, Lord Morton of Shuna, that we should not redefine murder to cater for terrorist cases.

I am conscious that I am parting company from what the law is in both Scotland and England and the opinion of the committee, but I wonder whether further consideration should be given to the fundamental point. I think that the noble and learned Lord, Lord Lane, would stigmatise it as the ultimate over-intellectualised point, but intention to kill should be the sole mental element for murder and intention to cause serious bodily harm should not qualify. Arguably, that would accord with the general conception of what murder is and ought to be. If a person intends serious bodily harm but is also aware of the risk of causing death, then that would be material from which a jury would be entitled, but not obliged, to infer intention to kill. Therefore murder would be reserved for the most serious cases of culpable homicide where there is an intention to kill.

I appreciate that the principal argument against this point has been given by the noble and learned Lord, Lord Ackner: that murder cannot be limited to intention to kill because in practise that would make the conviction of murderers too difficult. However, it should be considered how significant that is once the mandatory life sentence has gone. I agree with my noble friends Lord Mishcon and Lord Macaulay of Bragar that the report would have been a more influential document if its authors had felt able to address the question of whether there should be a single offence of unlawful homicide.

I welcome the committee's recommendation that the mandatory life sentence for murder should be abolished and replaced by a discretionary sentence so that the range of penalties for murder will be the same as for other serious crimes. If murder were confined to intentional and unprovoked killings there would be a stronger argument for retaining the mandatory life sentence in order to mark society's abhorrence of the wilful taking of human life. Even then, the mandatory life sentence would surely be a blunt instrument. A mercy killing is of a different moral order from a sadistic sex-based child murder. Where murder has a much more extended definition so that the mental element is satisfied by an intention to cause serious bodily harm, combined if need be with an awareness of the possibility of death, I would suggest that it is beyond argument that murder embraces such a multitude of diverse sins that the single mandatroy life sentence must be inappropriate. The mandatory life sentence does not underpin public abhorrence of murder because everyone knows that life does not mean life but on average something less than 10 years. Sentences modulated to the gravity of the individual case would be more likely to achieve the public abhorrence that is desired.

It must be recognised that adoption of the committee's recommendation will inevitably lead to public controversy over whether a sentence was too lenient or severe in a murder case on which public and media attention has been focused. Detailed sentencing criteria will have to be laid down. The noble and learned Lord, Lord Lane, has called attention to the need for that and pointed out that it will take time.

The Minister may recall that on a previous occasion in this House he expressed interest in the idea of a sentencing council with a strong lay element laying down sentencing guidelines. Perhaps he can say when he speaks again whether his thinking has advanced on that subject.

I should welcome in particular two recommendations of the committee which advance the cause of open justice: that the judge awarding a life sentence should give his reasons for imposing life rather than a determinate sentence and that the judge should fix in open court the period of years, or "the penal sanction" in the report, necessary to meet the twin requirements of retribution and deterrence, which period should not be subject to revision by executive diktat.

The role of the Home Office in revising upwards the tariffs indicated as appropriate by the trial judge in mandatory life sentence cases is the most remarkable of the revelations to emerge from the committee's deliberations. My noble friend Lord Mishcon called attention to it in his speech at the outset of the debate. It is a remarkable story. The noble Lord, Lord Hutchinson of Lullington, called it, rightly, scandalous. As the noble Lord, Lord Harris of Greenwich, pertinently asked—and we hope that we shall receive an answer—why was Parliament not told what was going on?

More specifically, by mere announcement to Parliament in November 1983, but without any parliamentary approval whatever, the Home Secretary fixed 20-year sentences for particular categories of murder. It would be welcome to hear the noble Earl when he replies to the debate state in terms that he accepts the constitutionality of the committee's objective that penal sanctions should be set by judges and not be subject to modification by the Executive. The point is that the duration of imprisonment should be decided by judges in an open process and not by the Executive behind closed doors, without even the authority of Parliament.

I gather, however, from what he has already said that the noble Earl is not sympathetic to the recommendations. That is a great pity. This has been a good debate which I do not desire unduly to lengthen. It has been a good debate on a report of high quality. We must hope that what emerges from it is of comparable quality. But if I, in common with the noble Lords, Lord Windlesham and Lord Harris of Greenwich, have read correctly between the lines of what the noble Earl has already said—I hope I am wrong—the auguries for action on the report are not good.

9.4 p.m.

Earl Ferrers

My Lords, I should like to agree with the noble Lord, Lord Irvine of Lairg, and the noble Lord, Lord Harris of Greenwich, that we have had an extremely interesting debate. It has been one of the best debates that we have had on one of the most serious matters.

In all the speeches that have been made noble Lords have struggled to find an answer to a complex series of questions. Murder is, after all, the most shocking of all crimes. It is not surprising that in its variety it is not easy to particularise regarding intent, sentencing, tariff or treatment. Those are all individual matters. It is therefore not surprising that it is not easy to come to a clear-cut decision.

My noble friend Lord Windlesham said that I had said nothing in my opening speech. I am grateful to him for that courtesy. He is quite right. The whole purpose of the debate has been to hear what your Lordships had to say. I was mildly miffed when my noble friend said that he did not like the tone of what I said. The noble Lord, Lord Harris of Greenwich, said that he had looked for coded words. The noble Lord, when he speaks, is as plain as a pikestaff. It might be a little more helpful to the Government if he would use a few more coded messages instead of being quite so direct. The noble Lord, Lord Irvine of Lairg, thought that it might be fun to run with that hare.

The Government came to the subject with an open mind. If I am accused of saying nothing, the reason is only that I was trying to point to one or two matters which I thought were of concern and to highlight some other views that might be put in the course of discussion. I did not intend to convey that the Government had come up with decisions but did not like to adumbrate them or that the Government were cool towards the committee's recommendtions. The committee has produced a very significant report. It is one of great importance. The Government will wish to consider it most carefully.

The noble Lord, Lord Harris of Greenwich—who had a fair old go—blamed me for the observations that I made on the position of my right honourable friend the Home Secretary regarding the release of murderers back into society. The noble Lord thought that I was disparaging when I said that it had a flavour of numbers. I was referring to the Home Secretary's responsibility for releasing back into society those who have previously committed murder.

What I said was: Those who advocate a change of this nature will have to weigh up the advantage of sharing the awesome and singular responsibility of decision-making with the disadvantage of corporate and diffuse responsibility. There is a flavour here of the safety in numbers argument". That is perfectly fair. I did not say that one was better than the other or that one was worse than the other. There is an advantage in singular responsibility; there is an advantage in corporate responsibility. However, I remind the noble Lord that, when he refers to the advantage of a tribunal making a judgment, that is a judgment of the offender. The Home Secretary is responsible for the public. He is responsible for public safety and is accountable for the actions that he takes. Even if we all think that the other is desirable, that factor must be taken into account. I am sure that the noble Lord, Lord Harris of Greenwich, will, with his generosity, understand that that is a perfectly reasonable point of view to put forward and that that matter should be taken into account.

The noble Lord, Lord Harris of Greenwich, implied the question, "How may Ministers suggest a different tariff from that which the judge states?" That matter has concerned a number of noble Lords. However, perhaps I may remind him that the judges give advice. It is not a matter of a sentence. The judges give advice to the Home Secretary and Ministers then have the discretion to keep a life prisoner in custody for as long as they think is correct. Noble Lords may say that that is wrong and should be altered. But that is what happens now. I do not think that it is unreasonable.

Lord Morton of Shuna

My Lords, perhaps the noble Earl will clarify one point. When the noble and learned Lord the Lord Chief Justice puts forward a view as to the appropriate tariff and the Minister of State, or whoever, changes it, is there any consultation with the noble and learned Lord the Lord Chief Justice?

Earl Ferrers

My Lords, that decision remains with the Minister. I am not in a position to tell the noble Lord whether such a discussion took place on every case or on any case. But whether or not it did the final responsibility is that of the Minister because it is his responsibility to ensure public safety. One must also remember that the tariff arrangement is a secondary mechanism for fixing the review date. That fixes the date upon which the review may take place. The present system allows for flexibility and does not tie the hands for many years into the future.

The noble Lord, Lord Harris of Greenwich, also asked whether what happened was announced in Parliament. The policy was announced in response to a parliamentary Question. I understood that the matter was discussed in advance with the noble and learned Lord the Lord Chief Justice who agreed with the new system to be operated by the trial judge and the noble and learned Lord would write to the Home Secretary. That is the position.

Lord Hutchinson of Lullington

My Lords, will the noble Earl explain why the noble and learned Lord the Lord Chief Justice is reported and quoted in the report as having heavily criticised the procedure?

Earl Ferrers

My Lords, if the noble Lord, Lord Hutchinson of Lullington, wants to know why the noble and learned Lord the Lord Chief Justice takes a certain view, he had better ask the noble and learned Lord because that is his responsibility.

A number of noble Lords were anxious about the definition of murder.

Lord Mishcon

My Lords, before the noble Earl sits down, perhaps he will deal with a point which I am sure he appreciates worries many of us. The noble and learned Lord the Lord Chief Justice should obviously not have been quoted in his absence, if I may say so with great respect, as having been consulted and as having approved of the procedure when, in his evidence on page 42, he says: It is unsatisfactory, to say the least, that the length of a prisoner's stay in prison should be determined or partially determined behind the scenes by someone who has not heard any representations by or on behalf of the prisoner on grounds which the prisoner does not know". There could not be a clearer condemnation of the system. It would be unfair—I know the noble Earl is always so fair—to indicate that the noble and learned Lord the Lord Chief Justice had been consulted and had approved of the procedure.

Earl Ferrers

My Lords, I understand the noble Lord's anxiety and I shall respond to it as best I can. I could not agree with him more.

If that does not satisfy your Lordships or if I have misportrayed the noble and learned Lord the Lord Chief Justice, I shall certainly inform myself and communicate with the noble Lord, Lord Mishcon; indeed, if necessary with the noble and learned Lord the Lord Chief Justice.

Lord Campbell of Alloway

My Lords, perhaps my noble friend the Minister will give way. This matter is of absolutely crucial importance. The whole of the committee was unanimous. On this point it appears that the whole of your Lordships' House is unanimous. Indeed, all the speeches have shown unanimity. It is a matter of crucial importance.

I know not, but it could well have been that when some years ago the noble and learned Lord the Lord Chief Justice was asked whether he would assent to a position, in fact he assented to that position. However, the evidence that he gave to the committee and the speech of the noble and learned Lord made it totally plain that he does not at all approve of it today. We are dealing with an issue on which we are unanimous in supporting him. Surely the Government must face it on that basis.

Earl Ferrers

My Lords, I quite understand the view of my noble friend Lord Campbell of Alloway. As I said at the start of this speech and indeed in my earlier speech, the Government are here to listen to what your Lordships have to say. I heard very clearly what your Lordships have to say. If I may say so, I am now being given proverbial stick for not agreeing with what your Lordships have to say. But at the beginning I said that I had no intention of taking up a point of view on what the Government will do because there are a number of matters that come into that consideration.

I know that your Lordships are entirely fair and are prepared to give the Government time to consider this matter, with all its difficulties. We have talked about the European Court and the report of my noble friend Lord Carlisle of Bucklow. All those matters have to be taken into account and we shall take account of them. When my noble friend Lord Campbell of Alloway says that all your Lordships are concerned about this matter, I just reply to him clearly, "I have got the message".

I could not help but be slightly amused when the noble and learned Lord, Lord Ackner, referred to the definition of murder, and said, "Those who have not had the disadvantage of a legal training might wonder what the argument is about". I am one of those who have not had that disadvantage, as he humbly put it. My experience is that those who have had that disadvantage have their argumentative prowess extended to its limit when they find themselves engaged with another person with the same training; when two of them have the same bone, as it were. We heard it this evening.

I followed the noble and learned Lord, Lord Goff, in his arguments when he said that terrorists might not intend to kill. He referred to the bomb in the shop, the bomb in the public monument, the surgeon trying to save life and the father who threw the little girl out of the window. I followed him like a dog on the end of a lead. I found his argument very convincing until the noble and learned Lord, Lord Ackner, came and blasted him out of the water. That is the interesting part of listening to noble and learned Lords who inconveniently do not take the same view.

The noble and learned Lord the Lord Chief Justice said that if the definition were accepted many of those who committed what most people considered as murder would not be convicted and that it would produce more injustice than that which it was intended to remedy. That is a matter which obviously will have to be carefully taken into account. I notice that the noble Lord, Lord Morton, said that mercy killings should also be considered as murder.

My noble friend Lord Colville of Cutross said that the risk of prisoners reoffending should not be the only criterion for release. He gave the example of the drug runner who would be extremely unlikely to reoffend. As he said, if the likelihood of reoffending is to be the criterion, they would be let out early and that would send a very bad message. I agree with that. I can assure him that when considering that point the Government will listen very carefully to the views of the practitioners and what should be included in the evaluation of risk.

He also asked whether we could not legislate to provide that somebody who kills by using excessive force in self-defence should be convicted of manslaughter instead of murder. That is quite a problem. I think that my noble friend's reference to the problems in Northern Ireland shows why we have to be very careful. Convicting a British soldier who kills by excessive force of a less serious offence than murder could easily be misinterpreted. I understand the argument that, if that soldier honestly believed that he was using only reasonable force, we might risk convicting someone of murder who in his own mind does not see that he is acting unreasonably. The counter argument is that, although we allow people to defend themselves with reasonable force, we should give them every incentive to err towards caution in how they do so. It was interesting that the noble and learned Lord the Lord Chief Justice said that we should not legislate especially for terrorists.

Lord Morton of Shuna

My Lords, may I interrupt the noble Earl? Perhaps he used the word "murder" when he did not mean it. What the noble Viscount, Lord Colville of Culross, was suggesting was that excessive self-defence should be culpable homicide or manslaughter rather than murder, as I understood the proposition.

Earl Ferrers

My Lords, that may be so. But I believe that the same principle stands. We shall certainly consider those points.

The noble Earl, Lord Longford, wanted an assurance that there is no intention of introducing a life sentence that explicitly means life. I am bound to tell him that life may indeed mean life if the risk of release is judged unacceptable. On at least two occasions recently the judge has recommended detention for life.

The Earl of Longford

My Lords, perhaps I may interrupt the noble Earl. Is he saying that that will be the new doctrine? Until now in this country, according to information received from the Home Office, no one has ever been kept in prison for life although he may have died in prison.

Earl Ferrers

My Lords, I do not know how many times I must explain to your Lordships that I am not adumbrating a new doctrine. I have tried to tell the noble Earl that a person may be given a life sentence which is reviewed and he is released when it is believed that the risk is sufficiently reasonable to let him out. However, if it is judged that the risk to public safety is not sufficiently acceptable, of course he will not be let out. That is the position at the moment.

As time is progressing I shall refer only to one other remark. It was made by my noble friend Lady Platt. She said that she was in a minority of one on the committee. I suggest that she should not be too worried by that. Whenever you are in a minority of one it is uncomfortable. If I am in a minority of one, I usually think that I have got it completely wrong, or alternatively that I am being arrogant. But when I see other people in a minority of one, I look at them with great respect for the sincerity of their judgment and the conviction of their thoughts.

I can assure noble Lords that the Government will take great note of what has been said. A great many points of importance have been made. It would have been an impertinence for me to refer to many of them, not least because it would have detained your Lordships for too long but more importantly because it would be inappropriate for the Government at this juncture to come to any conclusion even—dare I say it?—on some of the speeches that noble Lords have made. However, we have listened to them. We shall read them and imbibe the wisdom that has been forthcoming, as it was expected to be, from noble Lords who have so much experience. I refer not only to the Law Lords who have spoken but also those who advise Ministers and those who simply have an interest in the position.

9.24 p.m.

Lord Nathan

My Lords, due to the speed with which your Lordships dispatched the business concerning self-governing schools in Scotland, I made my opening remarks as it were before dawn. It is indeed over five and a half hours since I did so. The noble and learned Lord, Lord Ackner, was kind enough in his opening remarks to refer to the relaxed way in which I served as chairman of the committee.

Lord Ackner

Relaxed and efficient.

Lord Nathan

That is charming. Noble Lords will have some flavour of the nature and vigour of the debates that we had in committee from the vigour of the debates in your Lordships' House today. It would be a mistake to think that the unanimity—and I shall come to the one point of dissent —which pervaded our conclusions was the outcome of a series of compromises, as I have heard suggested. It was not so. The unanimity arose out of full and vigorous discussion, argument and persuasion. Some members gave way and some pursued their arguments to the full. That is the way in which the conclusions of the report were reached and it is a sound basis on which to operate.

I should like to refer to the members of the committee for whom I have an enormous respect not only for the continuity of their attendance at the large number of meetings but also for being tolerant but vigorous in their discussions. My remarks apply no less to the noble Baroness, Lady Platt, than to anyone else. As always, she participated in the most vigorous way and in good mood. In the end we agreed to differ.

At this hour there would be no purpose in seeking to review the many excellent speeches which were made during the debate. Some clearly require to be recorded as classics of their time and as a marvellous source of knowledge and information regarding the subjects that we have discussed.

The noble Lord, Lord Prys-Davies, was most kind when referring to the factors that I had in mind during our consideration in committee. It would be a great mistake now or when the matters arise for further debate in other surroundings to be too legalistic in a narrow sense about the questions at issue. Of course we were concerned with the law and its administration but, as has been said tonight, we were also concerned with morality, philosophy, public perceptions, penal policy, the law and the constitutional questions which arise, particularly in the context of the release mechanisms which have been so fully discussed today.

We must consider the position of the families of victims of murder. I and those who accompanied me were impressed and assisted by our visits to the prisons. We had the opportunity to meet the governors and the prison officers and to obtain their views without taking formal evidence from them. We also had the opportunity to meet a large number of prisoners convicted of murder and that was most instructive and informative. That is an area which we must bear in mind when deciding how to deal with the issue and not, as was said by the noble and learned Lord, Lord Lane, be too intellectually inclined.

We must also consider a new development—the impact of the European Convention on Human Rights on the present law and its future at which we looked and received evidence. It was most enlightening to obtain the information about crimes of murder and the penalties in other countries, not only in common law jurisdictions—that is, in the United States and in Commonwealth countries—through evidence given by the Law Commission but also in civil law jurisdictions among the membership of the Council of Europe. We found that extremely helpful and enlightening.

It is quite clear to us from this study—and no doubt also to your Lordships—that at present we are not living in the best of all possible worlds in relation to the matters which we are discussing. One might put that in the reverse order of our terms of reference. One might say, as I personally feel, that the whole position with regard to the release mechanisms is the most unsatisfactory on any basis.

We then reach the position with regard to life sentences, which is clearly not a satisfactory situation. It is giving rise to great public disquiet as to how it is working and what a life sentence really means.

We come to the vexed question of the definition of murder. I do not not believe that anyone would say that the present situation regarding that definition under common law in England is satisfactory. It may he the best which can be achieved but we thought not. Therefore, on the three matters with which we were concerned a great deal of work requires to be done. If our report has stimulated some ideas as to how those problems may be addressed, it will have served some purpose, although I would naturally hope that the proposals which we have made will be implemented in the fullness of time.

I am very glad to hear from the Minister that he has listened carefully—as I know he has—to the debate and the numerous points made. It seems to me that as we are having this debate so shortly after the publication of the report, the most we could ask, which has been accorded to us, is that the Government would listen to the observations which have arisen in a debate of this kind. It would be quite impossible for any government to reach any conclusions within a period of two weeks because it is only two weeks since the report was published.

The suggestion was made that at a suitable time a meeting with the Home Secretary may be appropriate. If these matters could be discussed with him when he has an opportunity of turning his attention to this subject, I believe that that could be a very useful development.

Therefore, I thank noble Lords for taking so active a part in this debate and trust that we shall move, not too slowly, a step further.

On Question, Motion agreed to.

House adjourned at twenty-seven minutes before ten o'clock.