LORDS AMENDMENT (Hansard, 3 July 1991)

HL Deb 03 July 1991 vol 530 cc1006-37 1006

§ 2 After Clause 22, insert the following new clause:

§ Court's duty on passing sentence of life imprisonment

§ (" .—(1) Where a court sentences a person to imprisonment for life it shall state in open court—

(a) its reasons for passing that sentence; and
(b) the sentence of imprisonment the court would have passed ("the penal term") if it had not been open to it to pass a sentence of imprisonment for life and it had not taken into account the risk of serious harm to the public if the offender were to be released after a determinate number of years' imprisonment.

§ (2) The penal term shall be subject to appeal against sentence in the same manner as the sentence of imprisonment for life actually passed on the offender.").

§ The Commons disagreed to the above amendment but proposed the following amendments in lieu thereof:

§ 2A After Clause 22, insert the following new clause:

§ Duty to release discretionary life prisoners

§ '.—(1) A life prisoner is a discretionary life prisoner for the purposes of this Part if—

(a) his sentence was imposed for a violent or sexual offence the sentence for which is not fixed by law; and
(b) the court by which he was sentenced for that offence ordered that this section should apply to him as soon as he had served a part of his sentence specified in the order.

§ (2) A part of a sentence so specified shall be such part as the court considers appropriate taking into account—

(a) the seriousness of the offence, or the combination of the offence and other offences associated with it; and
(b) the provisions of this section as compared with those of section 27(2) above and section 28(1) below.

§ (3) As soon as, in the case of a discretionary life prisoner—

(a) he has served the part of his sentence specified in the order ("the relevant part"); and
(b) the Board has directed his release under this section,

it shall be the duty of the Secretary of State, subject to subsection (7) below, to release him on licence.

§ (4) The Board shall not give a direction under subsection (3) above with respect to a discretionary life prisoner unless—

(a) the Secretary of State has referred the prisoner's case to the Board; and
(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.

§ (5) A discretionary life prisoner may require the Secretary of State to refer his case to the Board any time—

(a) after he has served the relevant part of his sentence; and
(b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference; and
(c) where he is also serving a sentence of imprisonment for a term, after he has served one-half of that sentence;

and in this subsection "previous reference" means a reference under subsection (4) above or section 32(4) below made after the prisoner had served the relevant part of his sentence.

§ (6) In determining for the purpose of subsection (3) or (5) above whether a discretionary life prisoner has served the relevant part of his sentence, no account shall be taken of any time during which he was unlawfully at large within the meaning of section 49 of the Prison Act 1952 ("the 1952 Act").

§ (7) The Secretary of State may defer a prisoner's release under this section for a period not exceeding six months if he is satisfied that exceptional circumstances exist which justify such a deferment in the public interest.

§ (8) In this Part "life prisoner" means a person serving one or more sentences of life imprisonment; but—

(a) a person serving two or more such sentences shall not he treated as a discretionary life prisoner for the purposes of this Part unless the requirements of subsection (1) above are satisfied as respects each of those sentences; and
(b) subsections (3) and (5) above shall not apply in relation to such a person until after he has served the relevant part of each of those sentences.'.

§ Lord Waddington
My Lords, I beg to move that the House do not insist on their Amendment No. 2 to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 2A in lieu 1008 thereof. I shall also speak to Amendments Nos. 2AA to 2AG, 2AJ, 2B, 2BA to 2BC, 2C to 2H, 2HA, 2J, 2JA, 2K to 2P, 2PA, 2Q to 2V, 2VA to 2VC, 3, 3A, 4, 4A, 5, 5A to 5C, 6AA, 8, 8A, 9, 9A, 10, 10A, 13, and 13A.
The other place did not find it possible to go along with your Lordships' proposals that there should be a review procedure in murder cases and I believe that, having accepted the continuance of the mandatory life sentence for murder, it would also be right to accept that the question of a murderer's release should be left in the hands of the Home Secretary as part of his responsibility for the protection of the public and the maintenance of the Queen's peace. In an earlier debate I made the point that at the time of the abolition of capital punishment, Parliament not only thought it right to mark the unique nature of the crime of murder by a special punishment but made it clear that the murderer, because he had taken another life, would surrender his own in a very important respect.
He might not spend the rest of his days inside prison but the sentence would last for life and he would not be released without the consent of the Home Secretary, who would be answerable to Parliament if things went wrong. I think that that is still the right approach to adopt. The approach is, we believe, consistent with the decisions by the European Court.
In so far as non-murder cases are concerned, however, I indicated during the Report stage of the Bill that the Government would be happy to respond to your Lordships' views, and we have been as good as our word.
The amendments which have been proposed in lieu of Amendment No. 2, and to the words restored by disagreement to Amendment No. 5, introduce a new system for the administration of discretionary life sentences. This new system, which the government believe will bring our domestic practice fully into line with the requirements of the European Court of Human Rights, is in its essentials quite similar to that proposed in your Lordships' amendments—though it does not of course apply to mandatory life sentence prisoners.
It may be for the convenience of your Lordships if I briefly outline the main features of the amendments in lieu, with particular reference to the points where they differ from those proposed by your Lordships. It may also be convenient if, in doing so, I refer to the further amendments which have been tabled by the noble Lord, Lord Nathan, and others.
First, provision is made, in Amendment No. 2A, subsection (2), for the trial judge to announce in open court the term within a discretionary life sentence which reflects the seriousness of the offence. This corresponds with subsection (1) (b) of Lords Amendment No. 2, but in a form which I hope is rather easier to understand. I think it was the noble Earl, Lord Longford, who said that the language of Amendment No. 2 was incomprehensible. I think it is now clear in our amendment.
The term stated by the trial judge will be an order made as part of a sentence and so will be open to appeal in the normal way. Once that term had been 1009 served, the prisoner's detention thereafter would be based on the risk he posed to the public rather than the seriousness of the offence.
It would, under the Government's proposals, be open to the trial judge, exceptionally, not to set a term. This would be an indication that the crime which had been committed was so wicked that detention for life was justified according to the seriousness of the offence alone, irrespective of the risk to the public. Such a life sentence prisoner would therefore be in the same position as a mandatory life sentence prisoner. The question of his eventual release would be a matter for the Secretary of State.
At this point, perhaps I could refer to Amendments Nos. 2AA and 2AB which have been tabled by the noble Lord, Lord Nathan, the noble and learned Lord, Lord Ackner, the noble Lord, Lord Richard and my noble friend Lord Campbell of Alloway. They not only seek to apply the new procedures which I have just mentioned to mandatory as well as discretionary cases, but also remove the discretion which the Commons amendments give the sentencing judge not to specify a term if he considers it inappropriate to do so. I want to make it plain why that provision was inserted by the other place.
I think it would be helpful to take as our starting point the remarks of the European Court of Human Rights in the case of Thynne, Wilson and Gunnell. The court drew a clear distinction between the mandatory life sentence and the discretionary sentence; based on the reasoning which it found in the relevant judgments of the Court of Appeal. If I may quote from the European Court judgment, the court said: the principles underlying such sentences [i.e. discretionary sentences], unlike mandatory life sentences, have developed in the sense that they are composed of a punitive element and subsequently of a security element designed to confer on the Secretary of State the responsibility for determining when the public interest permits the prisoner's release. The passing of a discretionary life sentence would therefore normally indicate that there was present an element of mental instability and dangerousness in the offender which were, by their nature, susceptible of change with the passage of time. The court concluded that the lawfulness of the prisoner's indefinite detention in a discretionary case could not therefore be determined at the outset by the act of passing sentence, and that the discretionary life sentence prisoners concerned were therefore entitled, under the convention, and I quote again, to take proceedings to have the lawfulness of their continued detention decided by a court at reasonable intervals and to have the lawfulness of any re-detention determined by a court". It is this reasoning which is reflected in the Government's amendments. First, the procedures set out in the Government's amendments do not apply to mandatory life sentence prisoners. The mandatory life sentence is given not (to use the court's words) in order to provide first a punitive element in the sentence and subsequently a security element. The justification for the mandatory life sentence for murder is the heinousness of the offence alone, whether or not the offender is also judged to present a future risk to the public. It has to be imposed whether or not the 1010 offender presents a future risk. That is the nature of the mandatory life sentence, the continuance of which has now been accepted by this House.
The mandatory life sentence passed for murder does not therefore divide up into punishment and security elements in the same way as a discretionary sentence, and it follows, I think, that one cannot have a similar procedure by which the trial judge announces in open court a period relating to the punishment element of the sentence. It also follows that there is no point in time in the sentence at which its justification switches from being punishment to being the protection of the public, and at which the lawfulness of the prisoner's continued detention must be reviewed by a body having the powers of a court for ECHR purposes.
So I believe that it would actually be incompatible with the reasoning adopted by the European Court of Human Rights to apply the procedure set out in the government amendments to mandatory life sentence cases, as the amendments put forward by the noble Lord, Lord Nathan, and others seek to do.
Lord Nathan's amendments also seek to remove the discretion which the Commons amendments allow for the trial judge exceptionally not to announce in open court a period related to the punishment of the offence in a discretionary life sentence case. But again this discretion—and I should emphasise that it is not more than a discretion which the trial judge can use or not as he sees fit—is based on the reasoning adopted by the European court.
A discretionary life sentence will nearly always be imposed because there is some element of mental instability which makes it impossible to know at the time of sentencing when it will he safe to release the prisoner. In these cases, clearly the new procedures should apply. But there may very exceptionally be a discretionary life sentence which is imposed purely because of the seriousness of the offence.
I do not need to give more than one simple example; namely, that of a terrorist who sets out to blow up a jumbo jet and by merciful providence the bomb is discovered just before the plane takes off and therefore no crime of murder is committed. It is perfectly possible to imagine a set of circumstances in which a judge would come to the conclusion that the crime committed was in itself so ghastly, and the seriousness of the offence was so grave, that a life sentence should be passed, not because there was any danger of the person at some point in the sentence then becoming a danger to the public again, but because life imprisonment was necessary to mark the full horror of the offence that had been committed —the attempted murder of hundreds of people by a terrorist act.
Under the proposals in the Commons amendments, in every discretionary life sentence case in which the judge had stated a term at the time of sentencing, the prisoner would be entitled to have his continued detention after the term reviewed by an independent body having the status of a court for the purposes of the European Convention on Human Rights. We propose that that body should be the Parole Board. We thought it right to entrust the task to the Parole 1011 Board rather than some completely new body because the members of the board have great expertise and know ledge in matters relevant to assessing the early release of prisoners. We think that there would be considerable benefit in bringing their expertise and knowledge to bear on the release of discretionary life sentence prisoners.
However, in order to satisfy the European Court of Human Rights' requirement that those cases should be considered by a body having the powers and status of a court, the Parole Board will have to operate under special procedures in those cases. First, and crucially, the board's decision on release will be binding on the Secretary of State, not just advisory. More detailed procedural matters will he laid down in rules made by the Secretary of State under clause 26(5) of the Bill. The panel of the Parole Board, which will consider discretionary life sentence cases, would be chaired by a judicial member of the board and one of its members would be a psychiatrist. The prisoner would be entitled to appear before the panel and to be legally represented. He would be eligible to receive legal aid. We are confident that the procedures concerned will satisfy the requirements of the European Court of Human Rights and that it is not necessary for them to be spelt out in the Bill for that purpose. We shall come to Amendment No. 2AH, in the name of the noble Lord, Lord Harris of Greenwich, later.
If the panel concluded that the prisoner's continued detention was no longer necessary to protect the public, the Parole Board would direct the Secretary of State to release him. The Secretary of State would then be obliged to release the prisoner on licence, subject only to a power, exceptionally, to delay release for up to six months if it was in the public interest to do so.
I can understand why some of your Lordships will be concerned about that power, and that concern is reflected in Amendment No. 2AG, but there is good reason for it. The European Court recognised in its judgment that a limited power to delay release might in some circumstances be justified on the grounds of what it termed "expediency".
We believe that it may be necessary on very rare occasions for the Home Secretary to delay a life sentence prisoner's release when there are compelling reasons, such as the prospect that release at the particular time in question would cause public outrage and public danger. Again, I can give a simple example which I am sure will bring home to the House how necessary it is to have that power. The release of a terrorist at the time when a particular anniversary of the tragedy caused by his actions is being marked by a public meeting might turn a peaceful demonstration into a public riot. The Home Secretary should be able to pre vent that by delaying release for a short period, but he would use the power only in the most exceptional circumstances and he would of course be accountable to Parliament for any decisions to use that power.
The prisoner's release would be on licence and, under the Government's proposals, licences would, as now, last until the offender's death, unless he was recalled to prison in the meantime. Amendment No. 2AC, on the other hand, proposes that in 1012 discretionary cases there should be an option of waiving the licence after a certain period rather than having it continue in force until the offender's death. I cannot recommend that to your Lordships. It seems to me that that would undermine the concept that a life sentence is a sentence for life, even though a proportion of it will be spent on release on licence rather than in custody.
Furthermore, bearing in mind that the offender will have been given a life sentence in the first place because of some element of instability which makes it impossible at the time of sentencing to predict when it will be safe to release him, it seems odd not to guard against a situation in which, for instance, a sex offender, after apparent rehabilitation, shows signs of once again wanting to molest children. So long as the life licence remains in force, the offender can be supervised, additional conditions can be attached if necessary to keep him out of contact with potential victims, and ultimately the offender can be returned to prison. We would fail in our duty to protect the public from offenders of that kind if we did not retain that ability to supervise their activities and prevent their committing further offences for the rest of their days.
In conclusion, I should point out that, unlike the amendments introduced in your Lordships' House, the amendments proposed by the other place include transitional provisions for prisoners who are already serving discretionary life sentences. They will become eligible for review by the Parole Board in its new capacity once their existing tariffs have been served. The prisoners whose cases were the subject of the ECHR judgment will therefore benefit from the new arrangements. The amendments proposed by the other place also cover a number of other cases not dealt with in your Lordships' amendments, including prisoners sentenced concurrently to more than one life or determinate sentence, and prisoners transferred from other jurisdictions to serve their sentences in England and Wales.
Your Lordships will see from that explanation that the Government and the other place have accepted the wisdom of your Lordships' view that the opportunity should be taken in this Bill to bring our law and practice on discretionary life sentences into conformity of the requirements of the ECHR. That in itself is a notable achievement for your Lordships' House. The Bill, and our law and practice hereafter, will be the better for those changes which have been made at your Lordships' behest. By accepting the amendments made in the other place and not insisting on your Lordships' amendments on the mandatory life sentence and on life sentence procedures, your Lordships can ensure that the Bill becomes law without delay, so that those and the other important changes introduced by the Bill may be implemented as soon as possible. I beg to move.

§ Moved, That the House do not insist on their Amendment No. 2, to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 2A in lieu thereof.—(Lord Waddington.)

1013

§ The Deputy Speaker (Lord Strabolgi)
My Lords, I must now call Amendment No. 2AA as an amendment to Commons Amendment No. 2A.

§ 4.45 p.m.

§ AS AN AMENDMENT TO COMMONS AMENDMENT No. 2A

§ 2AA Line 2, leave out subsection (1) and insert:—

§ ("(1) This Part applies to a person sentenced to—

(a) life imprisonment, whether or not for an offence the sentence for which is fixed by law; or
(b) during Her Majesty's pleasure or for life under section 53 of the 1933 Act; or
(c) custody for life under section 8 of the 1982 Act.

where the Court by which he was sentenced ordered that this section should apply to him as soon as he had served a part of his sentence specified in the Order.").

§ Lord Nathan
My Lords, I beg to move Amendment No. 2AA. My Amendment No. 2AA stands in the names of myself, the noble and learned Lord, Lord Ackner, and the noble Lords, Lord Richard and Lord Campbell of Alloway. I shall speak also to Amendments Nos. 2AB, 2AC and 2AG. There are therefore four substantive amendments to which I shall speak. They have been grouped together for convenience of debate, but I should make it clear that none of them is dependent on another and each therefore can stand on its own feet. I shall therefore move them separately in due course. The remainder of the long list of amendments that have been grouped together are consequential and I need not refer to them further at this stage.
I preface my remarks by saying that it will certainly come as a disappointment to many of your Lordships as well as to myself that the amendments to the Bill, adopted so overwhelmingly by your Lordships' House, have been rejected by another place. It is rare, if not unique, for a substantive amendment to be introduced after Third Reading in both Houses, especially when the subject has for long been known and under discussion. However, I draw comfort from the Commons amendment that is now before us. It is designed to bring the law and practice of this country into conformity with the ruling of the European Court of Human Rights on discretionary life sentences in the case of Thynne, Wilson and Gunnell. It embodies provisions for the court to determine the penal term and for an independent tribunal (the board) to determine questions relating to release.
My purpose in moving these reasoned amendments is to invoke the support of your Lordships' House as a revising Chamber —which, after all, is one of its main functions—to improve the drafting and to ensure compliance with the ruling of the European Court of Human Rights. The amendments also include provisions to extend their application to all life sentences for similar reasons, to which I shall refer later.
I turn first to Amendment No. 2AG which would delete subsection (7) of the Commons Amendment No. 2A. Subsection (7) provides that: The Secretary of State may defer a prisoner's release … for a period not exceeding six months after the board has directed that he be released. A key feature of the decision in the Thynne case is that 1014 questions of release of discretionary life prisoners shall be determined by a court or a court-like body which is independent of the Executive.
The problems which can be confronted and to which the noble Lord the Leader of the House referred —problems about riots and so forth on release of a prisoner—apply not only to those who are sentenced to life imprisonment. They could well apply to others also. If that argument were to prevail, it must be applied across the board to the release of all prisoners and not just to life prisoners or, indeed, discretionary life prisoners. The existence of a power for the Secretary of State to defer for six months a release ordered by the board would, in the opinion of many who are well qualified to speak, be a direct contravention of the Court's ruling. Amendment No. 2AG is designed to rectify that situation.
Secondly, I refer to subsection (3) of Commons Amendment No. 2A, which provides that any release of a discretionary life prisoner shall be on licence. The judgment in the Thynne case makes it clear that in the case of a discretionary life prisoner (which was the subject of the decision) a court—or in this case the board—must have power to bring the licence to an end. That is the background to the amended paragraph (3) (b) contained in Amendment No. 2AC. Noble Lords will note that under Amendment No. 2AC the revised subsection (3) (a) provides that in the case of any other prisoner—that is to say, a mandatory life prisoner—the licence shall continue until death. So the distinction is clearly made there.
I come now to Commons Amendment No. 2A subsections (1) and (2) which adopt the principle that the trial judge shall determine the period during which the life prisoner shall remain in custody as punishment. The function of Amendment No. 2AB is to clarify that and to ensure that it applies in all cases. It seems to me that if the point made by the noble Lord the Leader of the House were to be pressed forward, then the court should determine that it was not to be a fixed period during which the prisoner was to be held in prison but indeed for the remainder of his life. That would be preferable to inserting a provision which, on the face of it, looks as though the court has an option whether or not to exercise the power and to make the order. If the court had that option (which, on the face of the clause as I read it, it has), the criteria according to which it should exercise that option would have to be clearly defined.
Finally, I refer to Amendment No. 2AA, which would make the Commons amendment, subject to the other amendments to which I referred, apply not only to discretionary lifers but also to those awarded a mandatory life sentence. The reasons for proposing Amendment No. 2AA are principally two. First, although the Thynne case related to discretionary life sentences, it is widely felt that when the case of a mandatory life sentence comes before the European Court of Human Rights it will apply the same principle that it has established for discretionary life sentences.
The United Kingdom played a significant part in creating the European Convention on Human Rights and therefore the establishment of the court. The 1015 convention reflects much which lies at the foundation of English law. England has been regarded over the centuries as the cradle and indeed the bastion of the rule of law. It is therefore particularly distressing—I know that this view is shared in all quarters of your Lordships' House—when this country is condemned for failure to maintain its heritage. That was the situation in which we found ourselves: condemned in the Thynne case and indeed the Weeks case before it. It is surely appropriate that every step should be taken now to ensure that the condemnation in Thynne does not recur when the case of a mandatory life sentence comes before the court, as I am advised that it shortly will.
There is a further point of great significance. Your Lordships' House considered at an earlier stage of the Bill the very wide range of offences, and the circumstances in which they may be committed, in which a life sentence, be it discretionary or mandatory, may be awarded. Under the Commons amendment the provisions relating to the term of imprisonment as punishment and for release apply —for instance, in the case of a convicted rapist sentenced in the discretion of the court—to life imprisonment. On the other hand, under the Commons amendment it is clear that in the pathetic case of a husband who kills his wife at her request when she is suffering from some terminal and painful disease, and is therefore guilty of murder, will not come within those provisions. He will be dealt with as at present by decisions made in secret by the Home Secretary or, more frequently, by a junior Minister; decisions which were so strongly condemned by your Lordships at an earlier stage of the Bill.
Approving our amendments in your Lordships' House will enable them to be considered by another place. To do so does not create conflict or confrontation but would, I hope and believe, promote the substantial step forward represented by the Commons amendment. It is in that spirit that I put them before noble Lords and hope that they will commend themselves to your Lordships in all quarters of the House. At the appropriate time I shall move as required each of the amendments which has been grouped with this one. For the present I confine myself to Amendment No. 2AA. I beg to move.

§ Moved, That Amendment No. 2AA, as an amendment to Commons Amendment No. 2A, be agreed to.—(Lord Nathan.)

§ Lord Richard
My Lords, I rise to support this amendment. I shall do so very briefly indeed. There is a veil of secrecy which governments like to try to maintain in as faintly transparent a form as possible about the way in which Ministers approach the very difficult It instances of people sentenced to life imprisonment. The veil has been lifted a little—I am not sure to what degree intentionally—within the past few years and some figures have been given to the Select Committee.
The fact of the matter is that in most cases Home Office Ministers required prisoners to serve longer minimum periods than trial judges considered appropriate. As the House knows, the present procedure is that when someone is sentenced to life 1016 imprisonment for murder the trial judge makes a recommendation as to how long the person should serve. That recommendation goes to the Lord Chief Justice, who considers it and makes his own recommendation. It is then forwarded to the Home Office. There is therefore some kind of judicial action —or at least, judicial thought—given to the appropriate time during which an individual sentenced to life imprisonment for murder should stay in prison.
If the position is, as these figures seem to show (perhaps I may give them in a moment) that Ministers required prisoners to serve longer minimum periods than trial judges considered appropriate, then I am bound to say that I find it an extraordinary and disturbing position and one which the House should not lightly accept.
Between 1st April and 30th September 1988 minimum periods were set for 106 persons sentenced to life imprisonment for murder. In 63 of those cases Home Office Ministers laid down longer minimum periods than the trial judge recommended. In 34 cases they accepted the trial judge's recommendation. In only nine cases out of 106 they set lower minimum periods than the trial judge. More recently published figures indicate that of 274 mandatory life sentences considered in 1990 Ministers set a longer period than that recommended by the trial judge in 90 cases and a shorter period in 43 cases.
The point is simple and can be made briefly. It is wrong in principle for Ministers to lengthen sentences by Executive decree in this manner. Unlike a judge, the Minister makes his decision without having heard the evidence in court. The effect of the decision is that it is a sentencing decision. It is a decision taken by the Executive in the absence of any great knowledge of the case. The Executive has not been present and heard the evidence. It is a decision taken behind closed doors as to how long someone should spend in prison. That decision having been taken behind closed doors, the prisoner cannot appeal against it. Frequently he does not know about it until he tries to apply for parole. Then, by some strange process of mathematical calculation, he may be able to work out when he is likely to be released.
Similarly, decisions for or against the eventual release of life sentence prisoners and on the recall of such prisoners on licence can result in further lengthy periods of imprisonment; yet those decisions also are taken by an executive process whereby the parole board makes recommendations to Ministers. The amendment proposed by the noble Lord, Lord Nathan, ensures that decisions on the release and the recall of life sentence prisoners will be made by a process which, unlike the current system, will satisfy the requirements of natural justice. I hope that we all agree that those of our fellow citizens who are sentenced to life imprisonment for murder are entitled to treatment firmly based and clearly seen to be based upon the principles and requirements of natural justice. In my view, the present position is not so based. The half-way house that the Government propose is not so based.
1017 The noble Lord the Leader of the House sought to erect an edifice to justify the present position based upon an argument that murder is the most heinous of crimes and therefore demands different treatment. That, frankly, is nonsense. I shall not go through the arguments again. Many of us have practised in courts or have sat as a judge. The noble Lord, Lord Waddington, has practised in the courts at some stage of his political and legal career. He knows as well as any of us that one cannot simply say murder is murder and is therefore the most heinous of offences. Sometimes it is not. Sometimes it is a pathetic offence committed for humanitarian motives. To treat all murderers in a similar category and to give a discretion to the Home Secretary to decide when they should be released is something which I find offensive. The amendment of the noble Lord, Lord Nathan, and others goes some way towards rectifying that situation.

§ Lord Campbell of Alloway
My Lords, I also support the amendment. Superimposed on the text of the Bill is a four-tier drafting process which tends to obscure the nature of the essence of the disagreement as it now arises between the two Houses. There are the Lords amendments; there are the Commons proposed amendments and new clauses; there are the Lords proposed amendments and the Commons proposed new clauses; and there is a Lords amendment to a Lords proposed amendment, Amendment No. 2AH. That interesting, if somewhat perplexing process of law making, is worthy of the pen of A. P. Herbert and the satirical revelries of the honourable Mr. Justice Cocklecarrot.
However, we have to get right away from the misconception that the release of life prisoners be left to the will of the Home Secretary, because he is answerable to Parliament. That is a total misconception. Surely we have to accept that the question of release is a judicial function and not an Executive function. We have to set our face against the lengthening of sentences by Executive decree behind closed doors, to which the noble Lord, Lord Richard, referred. It is simply no longer acceptable.
I shall return to the argument of my noble friend the Leader of the House in one moment. The broad principle is no longer open to question in view of the reasoning of the Court of Human Rights. It should not be open to question anyway, apart from the reasoning of the Court of Human Rights, for the reasons given by the noble Lord, Lord Nathan.
What is the essence of the disagreement as it now arises? It is not in the same context as it arose before between the two Houses. I mention that to clear the air. First, another place wishes to confine the machinery for early release of life prisoners to discretionary life sentences, whereas the Lords proposed amendments apply to all life sentences. Surely it is wrong in principle and unacceptable in practice that in our country we should have a disparate regime on release of life prisoners as between the mandatory sentences or sentences where the term is not set, on the one hand, and the discretionary sentences on the other. It makes no sense. I join issue 1018 —respectfully of course, but totally—with my noble friend the Leader of the House on his interpretation of that Court of Human Rights decision. If we maintain this nonsensical disparity, assuredly, as I read the decision—I am open to correction of course—Her Majesty's Government will find themselves again in the pillory in the Court of Human Rights as regards mandatory sentences with a case which is on its way at present.
The second essence of disagreement—I have time only to deal with the essence—is that another place proposes that the machinery for release shall be the parole board, an advisory institute, with power in the Secretary of State to defer release for six months after the board directs release; whereas the Lords proposed Amendment No. 2AH (to which we shall come in a moment; it is relevant to the essence of disagreement) requires the board when exercising those functions to consist of a High Court judge as chairman with two other members, and to act as a judicial tribunal independently of the Secretary of State. Amendment No. 2AG, referred to by the noble Lord, Lord Nathan, removes the power of the Secretary of State to defer release for six months.
I found the concepts of public outrage and public riot a little dramatic and rather far fetched. I do not accept that questions of release should be left entirely to the will of the Secretary of State. If the Parole Board is to discharge its functions in accordance with the reasoning of the Court of Human Rights, surely it is utterly essential not only that it should act but that it should be seen to have acted judicially and independently of the Secretary of State and the Executive. That requirement should appear on the face of the statute.
Apart from wishing to forestall criticism of the Government, whom I support in other contexts, at the Court of Human Rights, I believe that if the amendments which I support were carried into the Bill it would tend to mitigate one of the most serious causes of unrest in our prisons according not only to the findings of your Lordships' Select Committee but to an express finding in the Woolf Report. As was said by the noble Lord, Lord Nathan, there is no hint of confrontation with another place; no insistence on any Lords amendments that have been disagreed by another place; no question of any lost Bill; and no question of any pressure. All that we ask is fair consideration by another place of these amendments in the new context in which they arise in the light of your Lordships' debate today. Surely, that is a reasonable stand to take, so that we may afford before Royal Assent a uniform, simple, intelligible procedure for the release of life prisoners consistent in all respects with the reasoning, as I understand it, of the Court of Human Rights. It is a procedure which is seen as fair, not only by your Lordships but also by the general public, to the victim, and, according to the evidence that we have received, to the prisoner.

§ 5.15 p.m.

§ Lord Morton of Shuna
My Lords, I too support the amendments. That will come as no surprise to your Lordships as I am a member of the Select Committee. 1019 I wish to ask two questions. As I understand the Commons amendment, the present procedure for life sentences for murder remains as it is and the new procedure applies only to the discretionary life sentence. I speak as a Scottish judge and not as an English judge. I understand that the English judge will write a recommendation in secret as regards the mandatory life sentence but under these provisions will make a recommendation in public as regards the discretionary life sentence. Is there logic in telling a prisoner receiving a discretionary life sentence, who will probably be mentally disturbed, what the punitive period is but keeping it secret from the person who everyone in the court knows is never likely to commit that offence again? Why is it necessary to keep the punitive element secret from the person convicted of murder? That appears to be one question totally unanswered in the Commons amendment.
The second question is covered neither by the Commons amendments nor by the amendments proposed to them. It is: is there to be a right of appeal against the punitive element in a life sentence?

§ Lord Ackner
My Lords, the reason why murder is not the most heinous of crimes is that unlike many other countries we have no categories of murder. That fact only has to be stated to make one realise that murder covers a wide range. On the other hand, the Government are intent on taking this uncategorised crime and putting it into, so to speak, a hermetically sealed compartment. The noble Lord, Lord Waddington, said with almost the nostalgic ring of an advocate, 'Consider the ultimate finality of the crime". That is known in the profession as a good jury point but when analysed it is not over full of substance.
There is a terrible finality in relation to the victim who is killed by reckless driving. There is a terrible and equal finality to the victim of manslaughter. In the case of manslaughter the intention to kill or to cause grievous bodily harm will be identical in many cases. The only reason why murder is not the right category is that the offender has managed to set up provocation or diminished responsibility. Therefore, the justification for this categorisation is totally wanting.
As a member of the judiciary I am anxious that the quality of the administration of justice in our country is not laughed at. There is now to be a new regime, not because the Government have seen the light, which necessitates according little more than the principles of natural justice to a prisoner, but because the Court of Human Rights has said so. That is quite rightly so. The new regime will give the discretionary life sentence prisoner the right to hear how long the penal element is and, I imagine, a right to appeal. That was proposed by the Lord Chief Justice. It will also give him the right to make an application to be released when that period has ended, to be represented and to have legal aid. All those aspects are most sensible. However, that regime is not to be accorded to the subject of a mandatory life sentence. Why on earth not? It is a sound, sensible, straightforward process that takes the art of sentencing away from the Executive where it should never be and entrusts it, together with all other sentences, to the judiciary.
1020 Thinking back, I feel a deep sympathy for whoever is retained on behalf of the Government to argue their case before the Court of Human Rights. He must justify that absurdity. No doubt it will be pointed out that there are examples other than those provided by the noble Lord, Lord Nathan. I was going to instance the unsuccessful terrorist. But the Government wish them to be put into a separate category although the life sentence imposed upon the terrorist is clearly imposed because he remains, at least for many years, a continuing danger.
Let us take the case of an arsonist who has managed to burn down several houses, just avoiding, by chance, killing a number of people. He will be the subject matter of a discretionary life sentence. He will be accorded all those privileges wrung out of an unenthusiastic government and only forced into this Bill by your Lordships' initiative. Let us compare him with an elderly gentleman who, because he must live in an urban area where the prospect of being mugged is very high, unlawfully but I think understandably, carries with him a swordstick—and there has been a recent case. He is attacked by a very large but unarmed assailant. He unsheathes his swordstick, runs his assailant through and kills him.
I ask your Lordships to accept that in the circumstances that is using more force in the operation of self defence than is reasonable and that that, in law, however wrong it may be, is murder. Therefore, that man goes down for murder. He is not to be told how long is the penal period and he is not to have any right of appeal in that regard. He is not to be able to apply to any judicial body to be released. He can have no representation. He is in the hands of the bureaucrats and the politicians.
That is why I rise to speak to your Lordships. I believe that that is an insult to the quality of justice which we are here to administer in this country.

§ The Earl of Longford
My Lords, any resistance to the House of Commons raises the question of whether a matter of principle is involved. I find that there is a very serious issue of principle involved with regard to this amendment. I do not say that a question of conscience is involved in whether a life sentence or a determinate sentence should be passed for murder. However, as to whether we treat those serving mandatory life sentences humanely involves a very deep question of principle.
I recognise that the Government and Members of the House generally have a very high regard for the protection of the public. However, there is also the question of whether an individual should be treated humanely in accordance with the ethics of a Christian country or even a humanist country, if such a country came into existence. Therefore, I believe that it would be monstrous, for reasons already adequately set out, to say that those serving discretionary sentences should be able to go before a tribunal, be represented and so on, but that the same treatment should not be accorded a different category of life prisoner.
I suppose that there are other Members of this House who, like me, are in contact with life prisoners. I shall not dwell on that at great length. The other day I was asked whether I felt anything in common with 1021 one of those gentlemen who had committed terrible crimes. I said, "I have everything in common with him. He is a member of the human race". That is true of all your Lordships.
That is how I see the matter. One must think not only of the public but also of the treatment of the individual. Hardly anyone is in favour of flogging the individual although that may be a far less severe penalty than keeping him in prison for many years. However, there are those who are ready to lock up people indefinitely. To put it crudely, I believe that that is wicked.
Let us take the immediate issue before us. I know of one prisoner who has served 25 years for two rapes. He has never had access to a tribunal and has never been given any reason for the length of his sentence. Under the new beneficent proposals of the Government, possibly improved as they should be, he should come before a tribunal, be given representation and so on. That is the case of the man serving 25 years for rape.
I know another man who has been in prison for 25 years for murder. Equally, that prisoner has had no opportunity of putting his case before a tribunal. None of those minimum conditions of humanity is observed and if the Government have their way that will continue. It will continue to be a hole in the corner decision reached, almost certainly in this case, on political grounds.
I regard this as an issue of principle and conscience. I shall certainly support the amendment moved by the noble Lord, Lord Nathan.

§ Lord Hailsham of Saint Marylebone
My Lords, the Government have made a definite advance in the amendment which my noble friend has proposed. To some extent we can give ourselves the credit for that because the amendment would never have been proposed if we had not taken the line that we did about mandatory life sentences. That very definite advance is due to the action of this House. The House of Commons has made a considerable advance in proposing the amendment to us as an alternative to our original view.
Having said that, I wish that I could persuade my noble friend and the Government to take a more sensible view about mandatory life sentences and the unique heinousness of murder. Perhaps I may give one or two reasons for saying that. Many have been rehearsed and I do not wish to take up too much time. First, let us reflect upon the fact that the laws of Scotland and of England with regard to homicide are not identical. Let us then consider that neither the laws of America nor those of most of Europe are identical with our own law of murder. Either everybody else is out of step and we alone are in step or murder is not a uniquely heinous offence. There is no escape from that dilemma.
I shall give one or two examples. Before doing so I wish to deal with the European Court, which was referred to by the noble Lord, Lord Nathan. It is quite true, as my noble friend said, that the European Court has distinctly not yet decided upon the separate question of mandatory as distinct from discretionary 1022 life sentences. However, for the life of me I cannot believe but that the European Court will be asked to decide that very point in the near future. If I were a betting man, which I am not, I should wager at least 20 to 1 that the court will decide that the same principles apply to the mandatory life sentence as apply to the discretionary life sentence. In that case, this country will once again be put in the humiliating position of having to legislate because it has broken the European Convention on Human Rights.
My noble friend is entitled to his opinion that I am wrong about that. It is a matter of opinion and it will remain so. However, I wonder whether it is worth yet another humiliation, even if there is a respectable risk of it. I thought I heard my noble and learned friend Lord Ackner rather share that view.
Let us consider a few cases because there is a grey area surrounding murder. First, let us consider the defence of necessity in the case of Dudley and Stephens, regarding the edible cabin boy. That was decided in the middle of the 19th Century. It was ultimately decided that the defence of necessity was not available in cases of murder. And, although that was the period of the heyday of capital punishment, the two accused were only made to serve either six or 18 months. That is the uniquely heinous offence we are asked to accept as a matter of principle. I cannot do it. It seems to me to be nonsense.
Let us consider the cases of duress. Lynch in the House of Lords was decided in the last decade. Duress was allowed on a charge of being an accessory before the fact in a terrorism case where a man was forced, under threat of a pointed gun, to drive the murderers to the place where the deed was actually committed. It was followed by the case of Abbott in the Privy Council, which decided that duress was not available to the perpetrator of the murder. Lynch, in its turn, was overruled by this House in its appellate capacity in the case of Howe and Bannister. It decided that duress was not available in cases of murder at all and that Lynch was wrongly decided.
It may be that we are all fools. I am quite prepared to accept that as a logical possibility. The only other conclusion is that murder is not a uniquely heinous offence. Enormous grey areas exist—which I shall not paint in; they were referred to by my noble and learned friend Lord Ackner and others—in cases involving, for instance, provocation. The grey areas between manslaughter and murder are almost infinite. In all gentleness I say this to my noble friend: either as a judge or as counsel I have probably been involved in not less than 50 murder cases at some time or other in my misspent life. I have prosecuted and defended in cases where the charge was murder but it was agreed on all sides that it was proper for the prosecution to accept a plea of manslaughter, which does not carry a mandatory life sentence, and in which the person concerned was sentenced to a period of imprisonment which did not amount to more than a few years.
I remember a case I defended in which a man was charged with murder. In the end the prosecution accepted a plea of manslaughter. I made the following plea in mitigation, "My Lord, if this case had been tried by the magistrates, as it ought to have been, there 1023 would have been a very small fine imposed and that would have been an end of the matter". The judge let the man off and placed him on probation.
When we are dealing with an area such as this, to say that we are dealing with a uniquely heinous offence is absolute rubbish. I do not want to torpedo this Bill and I do not know what the results of the voting will be. But the idea that a mandatory life sentence should be excluded from the ambit of the, in many ways, excellent advance made by the Commons in the first series of its amendments on the Marshalled List, is one that cannot for a moment be entertained. Murder is not a uniquely heinous offence and there is no rigid distinction between murder and manslaughter which can be set up on that basis.

§ 5.30 p.m.

§ Baroness Platt of Writtle
My Lords, it is with heartfelt relief that I heard this afternoon of the retention of the mandatory life sentence by your Lordships' House for the crime of murder. I am sure that that is the right decision. We now come to the consideration of Commons Amendment No. 2A, and Amendments Nos. 2AA to 2AJ and many others subsequently being proposed by Members of this House as amendments to Amendment No. 2A. I am not a lawyer and I find the language of the amendments on pages two and three difficult to elucidate. I thank my noble friend for his clarification.
My understanding, as far as it goes, is that the other place, in its Amendment No. 2A, is allowing that in the case of a discretionary life prisoner the part of the sentence decided by the judge at the time of trial to deal with retribution and to act as a deterrent should be stated in open court and be subject to appeal. I welcome that Commons amendment wholeheartedly. I believe it is referred to as the "relevant part". However, I do not believe that that is defined.
When that part of the sentence allowing for remission and parole has been served, the board will assess the risk to the public in terms of possible future violent offences and decide the terms of release or further detention to protect the public. I welcome that wholeheartedly. It is good practice because, having suffered his punishment, the prisoner is encouraged to reform to prove that he is no longer a risk to the public in order to obtain release, whether under supervision or on licence. It is therefore a positive incentive to good behaviour. If taken seriously it could result in a reduction of the prison population while continuing to safeguard the public, which everybody welcomes.
The amendments proposed by the noble Lord, Lord Nathan, and others, take the provision a step further in that they make it applicable also to those sentenced for murder under the provision of the mandatory life sentence. That is logical. Once again it would be a positive incentive to reform and the safeguard to the public would continue. If the risk remained and the prisoner was still of a violent turn of mind at the end of the "relevant part" of his sentence, he would not be released. If he were released and it was felt that he might commit another violent offence after release, either under supervision or on licence, he 1024 could be recalled to prison by the Home Secretary at any time during his life. That is the real protection to the public of a life sentence.
I have doubts about some of the detailed amendments, particularly Amendments Nos. 2AC(b), 2AG and 2AH, or indeed if the Home Secretary continues to be accountable to Parliament for the prisoner's release. But I ask my noble friend the Lord Privy Seal to look at the general gist of these amendments; that those receiving a mandatory life sentence, like those receiving a discretionary life sentence, should be sentenced in open court, such sentence to include a statement of the minimum period for retribution and deterrence, which should be subject to appeal. That is the most important part of the amendments before the House this afternoon.
After that "relevant period" has been served, with remission, the decision as to whether or not the prisoner constitutes a risk to the public and can be released under supervision or later on licence should be made based on the prisoner's subsequent behaviour. That would place all lifers on a par, which seems to be fair and logical, and would give the prisoner a positive incentive to reform and cease his violent behaviour. If the prisoner did not reform, he could only look forward to a long period in prison in order to protect the public; for some, that could mean literally imprisonment for life. I hope that my noble friend will seriously reconsider his views on the incompatibility of this amendment as I feel that it would result in a much more just situation in the future, when this important Bill is enacted.

§ Baroness Phillips
My Lords, I should like to point out that cases have been quoted during the course of this debate, but as a mere lay magistrate I have always understood that it is very dangerous to quote examples. However, I suppose if noble and learned Lords do so, that is different. I always feel that they have a doubled-edged sword; they can come here and make comments on the laws which they will administer. Other Members of your Lordships' House are not in quite the same situation. It is rather like the grocer deciding the parliamentary rules that will go with his particular profession—but that is by the way.
So far as I am aware, I do not know any murderers. Sadly, I did know two victims. I noticed that the noble Lord, Lord Nathan, used the case of the husband who killed his wife at her request. Since she is dead we cannot actually check that. That is my first point. I did once ask the opinion of my son-in-law who has been a general practitioner for many years. He said: "During a long time in practice I have known many people who ask for poor old auntie, poor old mother, or poor old father to be put out of their agony, but I have never known a patient to ask me to put them out of life". I respect what he said. He was not making that up. He has nothing to gain. He also said, "In any case, why should I commit murder three times a week to please the state?". Therefore, we must be very careful.
It is very easy to plead in court that the victim was violent. The victim is dead. Then we come to the case quoted from my own locality. I do not know which noble Lord referred to that case, but he did not seem to know the end of it. In fact, that person was not 1025 convicted of murder; he was convicted of manslaughter and I think he was finally put on probation because it was proved that he had acted in his own defence. Therefore, in quoting cases and when making laws we must be very careful to be accurate.
It is my view that murder is not difficult to decide. As I understand it, the question is: was it premeditated? That should not be very difficult to decide. My noble friend Lord Richard nods his head. Obviously the Law Lords have found something else to bring in. When I listen to their explanations I can see how, as a magistrate, I become confused. That is what they are paid to do. I knew at the beginning what the crimes were, but after I had listened to a defence for an hour I was not quite sure. Therefore, they achieved their object.
Murder is a very serious offence. It is an offence in which the victim cannot have anything to say. Therefore, we have to treat it differently. I can only say that both the cases that have been quoted do not seem to be very valid when called in aid to vote against the amendments of the House of Commons. I am sure the noble Lord, Lord Nathan, will say that he did know such a case. I am merely saying that if a person is dead it is very easy to say that he or she wanted to die. Most people do not want to die; they will hang on until the very last moment, even if they are in great pain. It is sad, but it is often easier for the person who is looking after them to say, "Poor thing. She wanted to die". I have a brain surgeon in my family and I am keeping out of his way. If I am admitted to his hospital I shall have all my organs removed, no doubt for the benefit of mankind.
However, to be serious, it should not be difficult to determine murder. It is much more difficult to determine some other crimes. But surely in this day and age, this crime should have much more straightforward implications that we can call in aid. I see that my noble friend Lord Richard is nodding his head. He has obviously had to defend quite a number of murderers. Perhaps he will tell us how he did that.
I believe that the Commons amendments meet the case and that it would be foolish to prolong the debate on such a point.

§ 5.45 p.m.

§ Lord Hutchinson of Lullington
My Lords, I should like to enter into this debate on one point, and one point only, and to do so briefly. We have been discussing the great principles of justice. We have been discussing the principles which will ensure that those who receive the most serious sentence known in our calendar are treated with openness, fairness, judicially, according to principle and not secretly, unfairly, bureaucratically and politically according to the whim of some Minister.
The whole of this debate rests on one case—that of Thynne and Others—which has been referred to by most speakers. Thynne is not just a case; Thynne is, in fact, a human being. Thynne is a man who has been in prison for 16 years on a discretionary life sentence —and not for murder. He is a man whom no one can 1026 describe as mentally disturbed or a danger to the public. It is equivalent to a determinate sentence of 24 years.
A number of us have been for years fighting for the justice of his case. Having been blocked by our courts and the Home Office we have had to go to the European Court of Human Rights with the greatest difficulty and at a great length of time. Eventually, in October last, as your Lordships know, Thynne was vindicated. The case had been made over and over again that he should be entitled to have this unending sentence reviewed judicially, in public, and reviewed in circumstances in which he could make his case and know why he was being kept for this inordinate time. That court said, "Yes, you were right all along".
One can imagine the effect of that decision on Mr. Thynne. After all these years he had, through his lawyers, triumphed. What is the reaction of the Home Office to that situation? Its reaction to that defeat is set out in a letter from the noble Lord's previous department, the Home Office, four months after that decision. The Home Office stated: This judgment does not have any immediate effect on Mr. Thynne's case. In the meantime, his case will continue to be dealt with under the existing arrangements. It has been decided that his case should be referred to the local review committee at his local prison in February 1992 as the first stage towards a further review by the Parole Board". Another two, three, or four years is the result of this man going to the European Court of Human Rights. That looks very much like a bunch of sour grapes.
I do not know what the House thinks of that reaction. It is—is it not?—a reflection of the small-mindedness and of the inflexible determination of the Home Office to cling on to its own decisions and its own procedures. I suggest that it underlines the importance of voting for the amendment of the noble Lord, Lord Nathan. I ask the noble Lord the Leader of the House, when he replies to this debate, to tell the House whether the Home Office will now, immediately, release this man, Mr. Thynne, about whom we have heard so much in this debate.

§ Lord Harris of Greenwich
My Lords, I shall try to be brief. I speak as a former chairman of the Parole Board and not as a person who has had any experience in the courts. I very much agree with the view of the noble Baroness, Lady Platt. She and I, and indeed the rest of the Select Committee, did not agree on mandatory life sentences but I am glad to say that we now find ourselves on the same side of this argument.
The noble and learned Lord, Lord Ackner, dealt with the rather unhappy situation which he will face, assuming we are unsuccessful this afternoon. Counsel for the British Government in the case that will come before the European Court of Human Rights will have to explain why there are two wholly different release procedures—one for people sentenced to mandatory terms and one for those who have received a discretionary term. I do not know how counsel will begin his argument. Will he use the "murder is a heinous offence" argument? I do not think he will get very far with that.
Perhaps I may put the problem to the noble Lord, Lord Waddington, in terms of how the Government's position will be perceived by those both in this country 1027 and outside it who follow matters of this kind with care and attention. At the beginning of his speech the noble Lord. Lord Waddington, said, in respect of the discretionary life sentence case, that one of the issues that will have to be dealt with by the tribunal which is to be set up—the word "tribunal" is not used in the government amendment but in reality there will be a tribunal within the Parole Board—concerns the risk that will be posed to the public by the release of that man or woman. That is precisely the issue that will come before the tribunal.
But what does the noble Lord believe happens at the moment when issues are being discussed by the Parole Board in regard to mandatory life sentence cases? It is precisely that issue. The Parole Board does not spend its time arguing about what is the appropriate length of the penal term. It discusses exclusively, in regard to mandatory life sentence cases, the risk that would be involved to the public were that man to come out of prison. I do not begin to understand—with great respect, the noble Lord the Leader of the House did not satisfy me or, I suspect, many other noble Lords—how one can possibly differentiate between those two groups of offenders. The concern is precisely the same.
In fact the position is even worse than that. Speaking on the basis of my own experience as chairman of the Parole Board, I can say that in a number of murder cases the character of the crimes was truly appalling; in other cases people who had been convicted of murder had committed offences of a kind which would create a degree of public understanding as to why the offence had been committed. However, when one considered the case of manslaughter on the ground of diminished responsibility one was often considering some of the most dangerous people in custody. What I do not understand is how one can possibly justify having a tribunal for the most dangerous people in custody but allow Ministers to deal with all the other cases. There seems to be no logical or rational basis for such an argument. Accordingly, I very much hope that the House will agree with the amendment which we are now debating.

§ Lord Waddington
My Lords, I do not know whether it was some diabolical plot on the part of the noble Lord, Lord Nathan, which persuaded him to start off with what many might think his worst rather than his best point. I urge the House to think carefully about these arguments concerning deferment of release.
On one point we can all agree—in its judgment the European Court of Human Rights said that in certain circumstances release could be delayed. It said that release could be delayed on grounds of expediency. What precisely is meant by expediency is a very difficult question to answer, but no one will argue that the European Court of Human Rights did not say that release could be deferred in certain cases on grounds of expediency. I merely pointed out that it seems only sensible to recognise the danger that could occur if a person's release coincided with some demonstration or the like. My noble friend Lord Campbell of Alloway thinks that that is entirely fanciful. I should 1028 have thought that it was a commonsensical illustration of what could occur. With the greatest respect to your Lordships, it hardly seems to be a very good argument to say that, because a person who has a determinate sentence cannot have his release deferred, therefore one should not defer the release of a lifer. That is like saying, "We are in an awful mess with regard to people who have determinate sentences which is leading us into great difficulty; we shall make quite sure that we get ourselves into precisely the same difficulty in the case of lifers". I cannot see much force in that kind of argument.
It was then argued by the noble Lord, Lord Nathan, that it was wrong that the court should have power to bring the licence to an end in order to satisfy the European Court of Human Rights. I have taken certain advice on that. The Home Office does not think that there is anything in the judgment of the European Court of Human Rights which can be interpreted in that way. The issue before the court was the lawfulness of the prisoner's continued detention. The court at no time examined or even commented on the question of how long licences for released prisoners should last. If my advice is correct I do not think that the noble Lord can sustain the argument that the amendment carried in another place is faulty for that reason.
Then one comes to the crucial amendment, Amendment No. 2AA. It is said that the European Court of Human Rights will eventually apply to mandatory life cases the same principles which it has applied to discretionary life cases. All I can do is repeat what I said in my opening speech. That was certainly not the argument advanced by the European Court of Human Rights in its judgment. The European Court of Human Rights said precisely the opposite. The court said that the principles underlying discretionary life sentences, unlike mandatory life sentences, have developed in the sense that they are composed of a punitive element and subsequently of a security element designed to confer on the Secretary of State the responsibility for determining when the public interest permits the prisoner's release. The court drew a clear distinction between the mandatory life sentence, when the term was decided at the time of the sentence, and the non-mandatory life sentence, when it was recognised that a life sentence had to be passed because it was impossible to assess at that stage what should be the length of time for which the person should remain in custody because of mental instability or some other defect in his character.
The noble Lord, Lord Richard, said that the Home Secretary had required people to stay in prison longer than had been recommended by the judges in their cases. The reason for that—there is no secret about it —is that Ministers take into account other factors in setting the tariffs in murder cases. One of the reasons for departing from judicial advice in particular cases is to discharge a policy which has been stated quite plainly to Parliament. I think, for instance, of the policy announced by one of my predecessors as Home Secretary, Sir Leon Brittan, in 1983, when he said that certain categories of murderer, including those who commit terrorist murders, murders of police or prison 1029 officers or sexual or sadistic murders of children, should serve at least 20 years in custody. I do not see that there is anything wrong in a Home Secretary coming to Parliament and saying, "I believe that sadistic murderers of that sort and people who murder police officers must expect to remain in prison for 20 years". That is a policy decision made by the Home Secretary. It may differ from the tariff which has been recommended to the Home Secretary by the trial judge.
I see that the noble Lord, Lord Richard, wishes to intervene. I am happy for him to do so.

§ 6 p.m.

§ Lord Richard
My Lords, I am much obliged to the Minister. Does he not realise that, if the Government decide that sort of issue as a matter of policy, their proper course should be to present a Bill before Parliament and put it through the legislative branch of our system? They should not do so by trying to influence judges to pass sentences which judges themselves would not pass; or, alternatively, trying to produce the same result by executive action.

§ Lord Waddington
My Lords, I do not know whether the view just expressed by the noble Lord, Lord Richard, was one expressed by the party to which he belongs at the time the announcement was made in 1983 by the Home Secretary of the day. I cannot recall that that announcement was greeted by great dismay, shock, horror and cries that it was unconstitutional and usurping the powers of the judges. I know certainly that it was widely welcomed by the public, who felt very strongly at the time that a clear marker should be put down that people who murder police officers should remain in prison for a very long time; indeed, for a minimum of 20 years.
I see that my noble friend Lord Campbell of Alloway wishes to intervene. I give way.

§ Lord Campbell of Alloway
My Lords, I am much obliged to my noble friend. I think that it would be most unfortunate if this, which is essentially a non-political problem of very great consequence, should be put into the field of politics. My noble friend the Leader of the House appears to have misunderstood the whole essence of the argument which has been advanced in support of these amendments.

§ Lord Waddington
My Lords, in my own defence, I must point out to my noble friend that I was replying to an intervention by the noble Lord, Lord Richard. I think that I was entitled to say that I did not believe there was much substance in his criticism of a decision taken by a former Home Secretary in 1983. It was a peripheral point and one which I would not have raised. It arose as a result of the noble Lord's intervention.
It has been said that there is no justification for the difference between the mandatory and the discretionary life sentence. But of course there is justification for the difference. It is inherent in the mandatory life sentence. My noble and learned friend Lord Hailsham said that murder was not a uniquely heinous offence 1030 and that to say so was rubbish. However, with respect to my noble and learned friend, he was really arguing the case against the earlier amendment. Parliament has marked murder as a heinous offence and a uniquely heinous offence by the mandatory life sentence which has now been agreed to by this House. Therefore, my noble and learned friend mounted a very strong argument against the mandatory life sentence—one which has been rejected—but no argument against the government amendment which recognises the fact that Parliament has drawn the sharpest possible distinction between murder cases and other cases and has said that it believes that murder is a unique offence. That is why there must be a unique penalty; namely, the mandatory life sentence.
I shall deal now with one of the lesser points raised by my noble friend Lord Campbell of Alloway. He said that in his belief there ought to be a High Court judge at the head of the tribunal or court which was dealing with these review matters. I have discussed the matter with my noble and learned friend the Lord Chancellor. He feels strongly that very experienced people—for example, judges—on the Parole Board can carry out that function. He believes that he would find it very difficult to operate the system if it had to be operated entirely by High Court judges.
I see that the noble Lord, Lord Hunt, wishes to intervene. I will gladly allow him to do so.

Lord Hunt
My Lords, I am most grateful to the noble Lord for giving way.
Perhaps I may remind the noble Lord that, from the very beginning when the Parole Board was set up in 1967 and throughout the time that I was its first chairman, the board always chose High Court judges—and I am looking at my noble and learned friend Lord Roskill for confirmation—to deal with life sentences in an advisory way. Surely that applies even more strongly when a tribunal which has executive powers is to be created within the board.
I should like also to remind my noble and learned friend Lord Roskill that, within a matter of months of the board being set up, we found a pretty scandalous state of affairs in the Home Office. We found a great pile of dossiers relating to forgotten men in the room of the then under-secretary. It was two High Court judges—indeed, the only two whom we had on the board—who cleared the backlog. In 1972 it was, of course, a High Court judge, no less, who, with other members of the board and under the chairmanship of the chairman of the Parole Board, formed a joint committee with the Home Office.

§ Lord Roskill
My Lords, as the noble Lord, Lord Hunt, has mentioned my name, perhaps I may add to his remarks. Under his chairmanship of the board in 1967, the noble Lord, Lord Jenkins of Hillhead, appointed me the first vice chairman and the first High Court judge to sit on the Parole Board. The other was the late Lord Justice James. Every single case of life sentence which came before the Parole Board was, I think I can say without exception, always dealt with by a panel of which a High Court judge was a member. Moreover, if the noble Lord, Lord Hunt, was not able 1031 to be present, either Lord Justice James or myself would be in the chair. I believe that I am right in saying that that process has continued throughout.
Perhaps I may also refer to a point which I intended to make but which the noble Lord, Lord Harris of Greenwich, took out of my mouth. We never considered at any stage whether we were dealing with a mandatory life sentence or a discretionary life sentence. The question was, subject to the issue of the penal element: "Is it safe to release this person?" I am most flattered that the noble Lord, Lord Hunt, recalled the mess that the Home Office was in and the work which had to be carried out by the judges, and others, to clear the arrears.

§ Lord Waddington
My Lords, I have to tell your Lord ships that we are not now considering whether or not there was a mess in the Home Office some years ago; we are deciding a very narrow point as to whether Crown Court judges should be able to preside over the courts which are reviewing these cases. I am advised by try noble and learned friend the Lord Chancellor that there will be a great deal of work to do and many reviews to be undertaken. That is the essence of the matter. If that is so, it will put an intolerable burden on the High Court judges if they are the only ones to carry out the work. I must point out to the House that Crown Court judges now sit on Parole Board lifer panels. That seems to be a perfectly good reason for them to carry out this work.
The noble and noble Lord, Lord Morton of Shuna, talked about judges writing in secret in mandatory life sentence cases. That is certainly a very good question; indeed, why should such a recommendation be kept secret? However, with the greatest respect to him, that is not the matter we are discussing today. What is at issue is whether in a mandatory life sentence case a judge should make to the Home Secretary a recommendation which the Home Secretary would then be able to take into account, but not necessarily follow; or, alternatively, whether there should be the complete review procedure. That is the issue we are discussing today.
The noble and learned Lord also asked whether there is a right of appeal. The answer is that under our scheme—that is, under the amendments carried in another place—there will be a right of appeal because it will be an order of the court.
I turn now to the points raised by the noble and learned Lord, Lord Ackner. He did not like my jury point. I certainly do not blame him for that. However, it is still correct to say that there is a terrible finality about murder. Obviously, there is a terrible finality about any death including one caused by an accident or a natural death. But murder is different because the person brought about that terrible finality as a result of an intentional act.

§ Lord Hailsham of Saint Marylebone
My Lords, I am sorry to interrupt my noble friend, but will he not say I hat there is the same finality in a bad case of manslaughter?

§ Lord Waddington
My Lords, of course there is, but again Parliament has recognised the distinction 1032 between the two offences. If the House wishes to bring forward recommendations to redefine the crime of murder, which of course was something considered by your Lordships' Select Committee as a possibility, that is one matter. We might get out of many of these difficulties if some day we were to address the problem of the definition of murder. With the greatest of respect to my noble and learned friend, it hardly seems to be a good argument against these amendments that we do not have the right definition of murder. Sometimes it is not entirely easy to justify why one person is convicted of manslaughter and another is convicted of murder.
I agree with the noble Earl, Lord Longford, who said that individuals had to be treated humanely. That is so, but the Home Secretary has the final responsibility for the protection of the public, and that is why, in mandatory life sentence cases, he has to decide whether a person is released or not, and he is responsible to Parliament for that decision.
My noble and learned friend Lord Hailsham said that the Government have made a definite advance by producing the amendments which would set up a review procedure in non mandatory life sentence cases. I am grateful to him for having said that. It is right that at the outset we made it plain that we had to react and change our law to bring it into conformity with the decision of the European Court of Human Rights. Your Lordships put a spur behind the Government and made the Government act more quickly than they otherwise might have done.
The noble Baroness, Lady Phillips, is not in her place. She, by my lights, was again on the side of the angels. I am grateful to her for her contribution. She made a good point: we are too keen to talk sympathetically about mercy killings when the relaxation of our attitudes might cause danger to vulnerable people. That is something we should bear in mind in the future.
The noble Lord, Lord Hutchinson, talked about the case of Thynne. What the court said was, not that he should be released or that he had served too long, but that his case should be reviewed and that there should be a system for that review other than that which is at present in existence. It is important to make that point. Stories have gone around that that man is somehow being illegally detained and kept in longer than is justified by the gravity of the offence that he committed. That remains to be seen. So far, the Parole Board has taken the view that he has not been kept in longer than is justified by the gravity of the offence that he has committed, but it may well be that when he comes under the new system a different view will be taken.
The noble Lord, Lord Harris of Greenwich, said that a case involving a mandatory life sentence prisoner was due to come before the European Court of Human Rights. I know nothing about that case. I have had no details of it from the Home Office. I merely repeat what I said before—that in the case of Thynne and Others the European Court of Human Rights drew the clear distinction between mandatory life sentence cases and other life sentence cases. In those circumstances, I ask your Lordships to take the 1033 view that we have made a great advance with these amendments in another place. A good scheme for the review of discretionary life sentence cases is presented to your Lordships. That good scheme provides, as the judgment of the European Court of Human Rights allows for there to be, in special circumstances, a short delay before a person is released. I do not believe that there has been any criticism by noble Lords today that the scheme put forward in another place does not meet your Lordships' concerns in that respect.
The only concern left for your Lordships is whether the review procedure should apply to mandatory life sentence cases as it does to non-mandatory life sentence cases. Those arguments have been rehearsed and rehearsed again. No purpose would be served by my re-emphasising that Parliament has said that murder is a unique offence and that it is right that there should be a different way of dealing with such cases from cases where a life sentence is passed, not to mark the heinous nature of the offence but because the judge cannot make up his mind at the time of sentencing whether it will he safe to release the person into the community in 10 years, 15 years, 20 years or whatever the period may be.

§ 6.15 p.m.

§ Lord Nathan
My Lords, I am happy to endorse what the noble Lord the Leader of the House has said, and which I said when I opened my remarks; namely, that I very much welcome the Commons Amendment, and that the reasoned amendments that I tabled were designed to improve the amendment put before us. I have no doubt that that is a step forward.
The noble Lord referred to what he thought was my weakest point. I do not believe that it was my weakest point. I thought that it was my simplest point, and that it would be better to start with something simple, because, despite what the noble Lord has said, if an order is made, and it will be an order, that a person serving a discretionary life sentence be released, as the situation presently stands with the Commons Amendment, it is extraordinary that by Executive action, the Home Secretary, or perhaps a junior Minister as has occurred previously, should defer that release for a period. That is not compatible with the position which I believe is basic to English law: that when, for instance, a person has served his determinant sentence, no Secretary of State or Minister in the Home Office, can say, "Oh no, you shall not be let out for another six months".
Reference has been made to the possibility—if I may put it this way—of hell and damnation being let loose by reason of the release of a person at a particular time. I cannot see that that is applicable, as is suggested, in the case of a discretionary life sentence any more than it would be in the case of a terrorist or other person who created a great disturbance who was sentenced to some determinant sentence. I put forward that proposition, first, because I thought that was a simple one and because that argument did not seem to make much sense. It seemed to be a desire to hang onto power by one's teeth. It was not a sensible thing to provide for. Secondly, there seems to be a 1034 difference of view about whether, in the case of a discretionary life sentence, it is requisite, under the decision in the Thynne case of the European Court of Human Rights, that there should be a provision under which the licence upon which such a prisoner may be released could be terminated so that he was free thereafter.
My reading of the case is that such a provision is necessary, because Article 5(4), which is in such classic terms as representing the provisions of English law that it might have been—perhaps it was—drafted in the Lord Chancellor's office here, says that a representation may be made to the tribunal to be created—in this case the Board —for termination of the sentence, or rather, in this case, termination of the licence. That was the ground upon which I put the proposal forward.
I turn to the questions which have been most canvassed, and rightly so, because they impinge on real questions of principle upon which we all feel strongly on one side or the other. It is interesting that in this debate, as in others on this difficult subject, a distinction has been drawn between a discretionary life sentence and a mandatory life sentence. The truth is that a life sentence is a life sentence. In the discretionary case, it is awarded in the discretion of the judge. In the mandatory case, the law prescribes that he shall sentence a person to life imprisonment. The relevance is that, as I am informed by those who are knowledgeable on the subject, when questions of release of people sentenced to life imprisonment come before the life panel, whether the life sentence is mandatory or discretionary is not under consideration. The crime as a result of which the prisoner is sentenced to life, and his release after coming before the Parole Board, are the matters in question. In the discussion which has taken place, there has been a tendency to regard the mandatory life sentence as a special creature, but I do not think it is.
I do not intend to review the powerful and interesting speeches that we have heard. It is not my place, nor have I the capacity to do so. One point that is very much in my mind is that Parliament resolved and decided that in the case of murder there should be a mandatory life sentence. That decision was made in 1965. So far as I am aware, Parliament has never, except by implication, decided upon the process by which the term of imprisonment should be determined, nor on how the release should be effected. As I understand it, these practices have grown over the years like Topsy and only came into the open in about 1983 when Sir Leon Brittan, as he is now, was at the Home Office.
Regretfully but firmly I agree with the Commons and with the noble Lord the Leader of the House that we should not press our amendment concerning the abolition of the mandatory life sentence. However, I do not believe that the other two elements are by any means so sacrosanct. The Commons have taken a great step forward by introducing their amendment and I have no doubt about that. However, its effect is limited. We always seem to be creeping forward as slowly as we can—as some say, being dragged screaming into the 21st century. We can never take the 1035 bold step, the big view of what is the right course, taking account of the case of Thynne, but also of what is right and appropriate.
It is particularly significant to me, as the noble Baroness, Lady Platt, knows, that she should support the views that are being expressed on the penal term and release. As a member of the Select Committee, she expressed her views clearly and strongly in favour of retention of the mandatory life sentence. She expressed those views today and I recognise the sincerity and genuineness of her views. It is significant that she should feel as she does. It is unfortunate that we should move so slowly in this direction. Past history is that we have lost a succession of cases. We have been dragged down, and this is a sorry sight for us.
I speak now only to Amendment No. 2AA, concerning the decision to be taken. A vote in favour does not torpedo the Bill. If it is approved by your Lordships it will present the Commons with the opportunity of considering these amendments. If they so decide, they can reject some or all of them. This is not a matter of confrontation, it is this House exercising its proper function as a revising Chamber. I believe that the time has come to take the opinion of the House.

§ 6.25 p.m.

§ On Question, Whether Amendment No. 2AA, as an amendment to Amendment No. 2A, shall be agreed to?

§ Their Lordships divided: Contents, 134; Not-Contents, 83.

1036

Division No. 1
CONTENTS
Ackner, L.	Galpern, L.
Addington, L.	Gisborough, L.
Airedale, L.	Gladwyn, L.
Banks, L.	Glasgow, E.
Beaumont of Whitley, L.	Graham of Edmonton, L. [Teller.]
Birk, E.
Blease, L.	Greenway, L.
Bonham-Carter, L.	Grey, E.
Boston of Faversham, L.	Hailsham of Saint Marylebone, L.
Bottomley, L.
Brain, L.	Halsbury, E.
Brightman, L.	Hampton, L.
Bristol, Bp.	Hamwee, B.
Campbell of Alloway, L.	Hanworth, V.
Carmichael of Kelvingrove, L.	Harris of Greenwich, L.
Carnock, L.	Havers, L.
Carter, L.	Henderson of Brompton, L.
Cledwyn of Penrhos, L.	Hilton of Eggardon, B.
Cobbold, L.	Holderness, L.
Cocks of Hartcliffe, L.	Hollis of Heigham, B.
Darcy (de Knayth), B.	Holme of Cheltenham, L.
David, B.	Hooson, L.
Dean of Beswick, L.	Houghton of Sowerby, L.
Desai, L.	Howie of Troon, L.
Donaldson of Kingsbridge, L.	Hunt, L.
Dormand of Easington, L.	Hutchinson of Lullington, L.
Ennals, L.	Hylton, L.
Erroll, E.	Hylton-Foster, B.
Ewart-Biggs, B.	Jauncey of Tullichettle, L.
Ezra, L.	Jay, L.
Faithfull, B.	Jenkins of Hillhead, L.
Fisher of Rednal, B.	John-Mackie, L.
Fortescue, E.	Judd, L.
Fraser of Kilmorack, L.	Kirkhill, L.
Gainsborough, E.	Kitchener, E.
Gallacher, L.	Lawrence, L.

1036

Layton, L.	Rochester, L.
Listowel, E.	Roskill, L.
Lockwood, B.	Russell, E.
Longford, E.	St. Albans, Bp.
Lovell-Davis, L.	Seear, B.
McIntosh of Haringey, L.	Sefton of Garston, L.
Mackie of Benshie, L.	Serota, B.
McNair, L.	Shackleton, L.
Mallalieu, B.	Shannon, E.
Masham of Ilton, B.	Sharples, B.
Merrivale, L.	Shaughnessy, L.
Monkswell, L.	Shepherd, L.
Monson, L.	Skelmersdale, L.
Morris, L.	Stedman, B.
Morris of Castle Morris, L.	Stockton, E.
Morton of Shuna, L.	Stoddart of Swindon, L.
Mountgarret, V.	Strathcarron, L.
Munster, E.	Taylor of Blackburn, L.
Murray of Epping Forest, L.	Taylor of Gryfe, L.
Nathan, L. [Teller.]	Templeman, L.
Newall, L.	Thurso, V.
Nicol, B.	Tordoff, L.
Pender, L.	Underhill, L.
Perth, E.	Varley, L.
Pitt of Hampstead, L.	Wharton, B.
Platt of Writtle, B.	White, B.
Prys-Davies, L.	Wilberforce, L.
Raglan, L.	Williams of Elvel, L.
Rea, L.	Willis, L.
Redesdale, L.	Winstanley, L.
Richard, L.	Winterbottom, L.
Robson of Kiddington, B.	Wyatt of Weeford, L.

NOT-CONTENTS
Alexander of Tunis, E.	Killearn, L.
Arran, E.	Kimball, L.
Astor, V.	Lane of Horsell, L.
Bellwin, L.	Long, V.
Beloff, L.	Mackay of Ardbrecknish, L.
Belstead, L.	Mackay of Clashfern, L.
Bessborough, E.	Macleod of Borve, B.
Blake, L.	Mancroft, L.
Blatch, B.	Marlesford, L.
Boardman, L.	Mottistone, L.
Boyd-Carpenter, L.	Mountevans, L.
Brabazon of Tara, L.	Nelson, E.
Brigstocke, B.	Norrie, L.
Brougham and Vaux, L.	Oppenheim-Barnes, B.
Caithness, E.	Orkney, E.
Cavendish of Furness, L.	Pearson of Rannoch, L.
Cockfield, L.	Plummer of St. Marylebone, L.
Coleraine, L.	Rankeillour, L.
Colnbrook, L.	Reay, L.
Colwyn, L.	Renton, L.
Constantine of Stanmore, L.	Renwick, L.
Davidson, V. [Teller.]	Rodney, L.
Denham, L.	Romney, E.
Denton of Wakefield, B.	Sanderson of Bowden, L.
Dudley, E.	Savile, L.
Eden of Winton, L.	Selborne, E.
Elliott of Morpeth, L.	Shrewsbury, E.
Ferrers, E.	Stevens of Ludgate, L.
Flather, B.	Strathclyde, L.
Fraser of Carmyllie, L.	Strathmore and Kinghorne, E.
Gainford, L.	Sudeley, L.
Glenarthur, L.	Swinfen, L.
Gray of Contin, L.	Tranmire, L.
Harmar-Nicholls, L.	Trefgarne, L.
Harvington, L.	Ullswater, V.
Henley, L.	Vaux of Harrowden, L.
Hesketh, L. [Teller.]	Waddington, L.
Hives, L.	Wade of Chorlton, L.
L. Hooper, B.	Wedgwood, L.
Howe, E.	Wise, L.
Jeffreys, L.	Wrenbury, L.
Jellicoe, E.

§ Resolved in the affirmative, and Amendment No. 2AA agreed to accordingly.

1037

§ 6.33 p.m.