Murder/Manslaughter Charges (Hansard, 9 February 1995)

§ The Minister of State, Home Office (Baroness Blatch)
My Lords, my right honourable friend the Home Secretary is considering the recommendation as part of the review of the law on murder, which he announced on 24th January in response to the concerns expressed by this House sitting in its judicial capacity in the case of Private Clegg.

§ Lord Carver
My Lords, I am grateful to the noble Baroness for that encouraging reply. Does she agree it is regrettable that in the almost 15 years which have passed since that recommendation was made nothing has been done to put it into effect? The result has been that members of the Armed Forces, when called upon to act in aid of the civil power, have continued to find 304 themselves liable to prosecution for murder, with its statutory penalty of life imprisonment, when they reasonably believed that they were doing their duty.

§ Baroness Blatch
My Lords, both the Government of the day and subsequent Governments have taken the view that it was not necessary to review that aspect of the law. The Private Clegg case has clearly thrown that issue into relief. My right honourable friend now believes that it is timely to review the situation.
Perhaps I may also make the point that the Criminal Law Revision Committee, the Law Commission Report in 1989 and the Select Committee of the House of Lords which considered murder and life imprisonment were not referring only to security forces. Their considerations encompassed all aspects of security and non-security personnel.

§ Lord Harris of Greenwich
My Lords, does the noble Baroness agree that if the Government had accepted the recommendation of the House of Lords Select Committee and the decision of this House when it debated the issue, the problem regarding Private Clegg would not have arisen in the first place? Is she not aware that the real problem relates to the mandatory life sentence? It means that a mercy killer and the person who destroyed the aircraft over Lockerbie are regarded in precisely the same manner?

§ Baroness Blatch
My Lords, I do not agree with that. First, it would be quite wrong for me as a politician at the Dispatch Box, or for this House, to second guess the judiciary in these matters. Whether that situation raised a problem for Private Clegg, or whether the recommendation would have made a difference, we know that at both the first appeal in the Northern Ireland Court of Appeal and subsequently at the House of Lords appeal the judges questioned having at their disposal at least the flexibility of the lesser charge of manslaughter. That is the matter now being looked into.

§ Lord Gisborough
My Lords, does the noble Baroness agree that the mandatory sentence takes justice out of the hands of the court and puts it into the hands of the police? The sentence depends entirely upon the section under which the police prosecute.

§ Baroness Blatch
My Lords, no, it certainly does not put the matter into the hands of the police. This young man went before the courts; a judgment was made; and subsequently the appeal judges in both appeals said that they would have liked to have at their disposal at least the possibility of considering—that is all it was—the lesser charge of manslaughter.

§ Lord Ackner
My Lords, I am sure that the Minister will agree—but I must formally ask her whether she does so—that, had the recommendation of the Criminal Law Revision Committee and of your Lordships' Select Committee been implemented, the following would have been the consequences. First, the whole range of sentencing options from life imprisonment downwards would be available to cover the situation being discussed, thus making it possible to fit the sentence to the crime—the "just deserts" philosophy urged by the Government during the passage of the Criminal Justice 305 Bill 1991. Secondly, the period actually served in prison would have been determined judicially on relevant facts, in public, and subject to appeal; whereas, as the matter now stands, it is determined by a politician, in private, upon undisclosed facts with no appeal. If the noble Baroness so agrees, why has it taken this length of time to remedy the situation?

§ Baroness Blatch
My Lords, that range of options would have been available to the court. That was the question raised by the Northern Ireland Court of Appeal and the House of Lords' judges in their summing up. My right honourable friend has responded to that.
All I can say is that in the intervening period, between the report by the Criminal Law Revision Committee and today, the Government took the decision not to review the issue. In the light of the Private Clegg case, they have now decided to review the issue.

§ Lord Merlyn-Rees
My Lords, underlying the question by the noble and gallant Lord, Lord Carver, and supplementary questions, is the role of soldiers in Northern Ireland since they first went there when the RUC was overwhelmed. I do not suggest that the Army withdraws from Northern Ireland. However, given the change in the RUC's strength and role, has the time not come to consider whether British soldiers should be on street corners in Belfast facing that situation?

§ Baroness Blatch
My Lords, I cannot answer that question in this context. What I can say is that the soldiers on the streets of Northern Ireland are, as are soldiers anywhere, bound by the yellow card rules of engagement. As I have already said, there is to be a review. The status of the yellow card rules of engagement will be taken into account in the course of that review.

§ Lord Wigoder
My Lords, is not the present situation regarding the use of self-defence totally insupportable when a person who is recognised as having the right to use force in self-defence finds himself with only two choices: doing nothing or of using force which, by its very nature, is bound to be excessive?

§ Baroness Blatch
My Lords, I am not a lawyer, but I understand that in the case of Private Clegg it was possible to pray in aid self-defence or provocation. That was open to the courts to consider. My understanding is that the issue was properly considered and the conclusion of the courts was that it was not an action in self-defence. Therefore, as I said earlier, it would be inappropriate for me, or indeed for this House, to second guess such a judgment, or the judgments of the appeal courts.

§ Lord Hailsham of Saint Marylebone
My Lords, clearly one sympathises with my noble friend in her present situation because of her lack of legal qualification.

Noble Lords
Oh!

§ Lord Hailsham of Saint Marylebone
My Lords, am I wrong? I apologise at once, unreservedly, if I am wrong. However, still feeling sympathy with her, notwithstanding any mistake I may have made, may I 306 ask her whether, in the case of Private Clegg, four shots were fired, three of which were in self-defence, and whether the fourth shot was decided not to be so? Is that not an absurd situation? Is it not absurd that anyone of that age, in a battle scenario, faced with that situation in the dark, should be charged with the abominable crime of murder?

§ Baroness Blatch
My Lords, tempting though it is to get into the debate raised by my noble and learned friend, I really must not. I believe that to do so would be improper, with or without knowledge of the law. However, the specific point raised by my noble and learned friend is precisely why this area of policy is to be reviewed.

§ Lord McIntosh of Haringey
My Loris, the noble Baroness referred to a government review. Will she include in that review the more numerous cases of domestic violence which involve the issue of justifiable force? Will she also consider looking again at some of the judgments involving cases between husband and wife?

§ Baroness Blatch
My Lords, the focus of the review has been triggered by the specific case of Private Clegg. However, as I have already said, the three major reports which addressed the issue did not confine themselves to the security forces. I would expect the review to take that consideration into account.

§ Lord Craig of Radley
My Lords, in view of the close interest which members of the Armed Forces clearly will have in the review, will the Minister assure the House that the views of chiefs of staff will be obtained in the course of that review?

§ Baroness Blatch
My Lords, I am not sure that I am in a position to give a personal guarantee that that will take place. I believe that it is essential that their views are taken into account. However, I have to make two points. First, the issue does not exclusively relate to security forces. Secondly, because that specific case is the focus of the inquiry, I believe that that will happen. If I am wrong in my answers, I shall write to the noble Lord.