§ 3.14 p.m.
§ Lord Strathclyde
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Criminal Appeal Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
§ Bill read a third time.
Baroness Blatch moved Amendment No.1:
Leave out Clause 1.
§ The noble Baroness said: My Lords, in moving this amendment and speaking to Amendment No. 2, with the leave of the House I shall also use the opportunity to speak to the starred Amendments Nos. 3 and 4 in the name of the noble and learned Lord, Lord Ackner, which I know he will speak to later. Also, for the convenience of the House, I shall speak to government Amendment No. 12 to Schedule 2, which is simply consequential to government Amendment No. 2. Finally, I shall speak to Amendment No. 13 to Schedule 2, in the name of the noble and learned Lord, Lord Ackner.
§ The Government have tabled Amendments Nos. 1 and 2 to give effect to the intention, as we understood it, of the clause tabled by the noble and learned Lord, Lord Ackner, and others, which was supported by this House at Report stage, and which is now Clause 1 of the Bill.
§ They have been tabled because the Government take the view that the Bill should not leave the Lords in a technically unsound condition. However, I should make clear to the House that the tabling of the amendments has been undertaken without prejudice to the view that the other place might take of the matter. The Government's position in another place will be for my right honourable friend the Home Secretary to deal with when the Bill is further considered there.
§ The current Clause 1 is technically deficient. In particular, it does not provide any mechanism for the hearing of an appeal or establish the powers which would be available to the Court of Appeal when dealing with such appeals.
§ Our amendment would therefore replace Clause 1 of the Bill with a clause to amend the Criminal Appeal Act 1968 in order to establish a right of appeal for persons convicted of murder against recommendations made by the courts as to the minimum period which should elapse before the Secretary of State orders their release on licence. The new clause we propose would make clear that appeal lies with the leave of the court, or with a certificate from the trial judge, and would attract the relevant procedural provisions of the 1968 Act.
§ We have taken the view that it would be preferable to create a new right of appeal rather than to define an appeal against a minimum recommendation as an appeal against sentence. The recommendation is not a sentence and we do not think that it would be right to suggest that it is. In particular, we take the view that the Court of Appeal should in these cases be able to declare a minimum period which appears to the court to be appropriate, whether this period is shorter or longer than the period originally specified by the trial judge. I had understood this to be the import of the question asked of the noble and learned Lord, Lord Ackner, by the noble Lord, Lord Monson, during our previous debate on the subject. We do not think it would be right for the court to be in a position whereby it could not state the recommendation that seemed to it to be right if that period were longer than the original minimum.944
§ We have not included a power for the Attorney-General to refer unduly lenient recommendations to the Court of Appeal. I would say that we had not understood that that was the will of the House in supporting Clause 1. It is a separate and, I suggest, additional issue.
§ That would, however, be the effect of the government new clause were the noble and learned Lord's starred amendments accepted. As I have said, this would not have been the effect of Clause 1; and our objections to such a power do go beyond the reasons I set out in opposition to the original clause.
§ As the House will be aware, the Attorney-General's power of reference was introduced in the Criminal Justice Act 1988 to ensure that in the most serious cases it was possible for justice to be done where it appeared that an unduly lenient sentence had been passed by the trial judge. While the original power has been extended to apply to some categories of cases not covered by the original provision, this has only been after very careful consideration.
§ In the case of an unduly lenient recommendation some remedy is, of course, already available without the introduction of a power for the Attorney-General to refer cases to the Court of Appeal. The final tariff is set by the Secretary of State.
§ I made clear during Report stage that one reason for thinking that the new clause, which was supported by this House, would not result in the provision of better advice to the Secretary of State was that the holder of that office would be deprived of a second judicial view in any case where the convicted person did not appeal, including those cases where a lenient recommendation had been made. I accept that he or she could obtain a second judicial view in some of those cases if the Attorney-General had a power of reference.
§ The Secretary of State finds a second judicial view very valuable. Its lack is, I believe, a necessary consequence of the decision made by your Lordships' House and cannot, with respect, be so easily overcome as the noble and learned Lord may have thought: nor, indeed, could it be the whole answer to the problem. The Attorney-General may well have a view on sentencing but he is not a part of the tariff setting process. He is accustomed to looking at sentencing matters but the minimum recommendations at issue here are rather different. Even if the Attorney-General were given such powers, unless he were to refer all cases which would be an inappropriate use of those powers, there would still be cases coming to the Secretary of State where he did not have the benefit of a second judicial opinion.
§ This amendment is therefore not the answer to the problem which I put before your Lordships: indeed, I fear that it risks adding new issues which it would be unwise to attempt to resolve in haste at this late stage in the Bill's passage.
As the amendment stands, the amendment itself and the practical procedures which lie behind it present unanswered questions. With great respect to the noble and learned Lord, we see some deficiencies in his drafting of his amendment to Amendment No. 2. It refers to,
the danger to the public of such release".
§ Those may be grounds why the Parole Board decide not to recommend release on licence of a prisoner at the end of the tariff period, but such grounds are not part of the tariff-setting process which relates to the retributive and deterrent element.
§ The amendment is in terms of an appeal by the Attorney-General. In other comparable provisions the procedure is for the Attorney-General to refer the case to the Court of Appeal.
We also have some reservations about the precision of the words,
if he considers that the recommendation substantially underestimates the gravity of the offence
though we have not yet had time to reach conclusions on that.
§ The Government are equally worried about procedural questions which neither the Government nor this House have had an opportunity properly to consider. In other cases where the Attorney-General has power to refer to the Court of Appeal, his inquiries into particular cases are triggered in practice, as I understand it, by reports from the prosecuting authorities, the reaction of victims or their families, and press reports. Such cases can then be considered by the Attorney-General in the context of established practice, including experience of comparable cases and Court of Appeal guidance, before he decides whether or not to refer the case to the court.
§ The position would be distinctly different if the noble and learned Lord's amendment were passed. The amendment would take the Attorney-General into different territory: he would not be dealing with a sentence of a court which, but for his power of reference, would be final. He would be dealing with a recommendation which is not binding on the Home Secretary.
§ That in turn raises questions about the respective roles of the Attorney-General and the Home Secretary in such a case. In the initial stages, until a body of Court of Appeal judgments built up, it is difficult to see on what criteria the Attorney-General would decide whether to refer a case. It would, I suggest, look very odd for him to take advice from the Home Secretary in such a matter: but in practice experience of tariff setting, and of the relationship between judges' recommendations and eventual tariffs in different classes of case, would be found only in the Home Office.
§ I would not want to rely too heavily on arguments relating to the Attorney-General's workload, but I think the logical consequence of the noble and learned Lord's amendment would be that the Attorney-General would need to consider a reference to the Court of Appeal in every murder case where there was no appeal against the recommendation, if only to make absolutely certain that the Attorney-General was approaching such cases entirely independently rather than linking—and some would say "confusing"—his role with that of the Home Secretary of the day.
§ There may be a way through these difficulties. My point is that we have not yet found it and, with great respect to the noble and learned Lord, his amendment 946 in relation to the Attorney-General does not give it to us. The Government have tabled amendments to give effect to the specific amendments for which the noble and learned Lord won support in this House, because we regard it as our duty to ensure that this Bill leaves this House in a workable form reflecting the decisions of this House at earlier stages of our proceedings. There was, I concede, a passing reference to the question of a role for the Attorney-General at an earlier stage but that was not an issue clearly before the House when the vote was taken and there are no amendments before the House which would confidently resolve the issue which the noble and learned Lord has raised.
§ There are too few stages left in this Bill to risk adding new issues. The Government have gone to some lengths, as I hope the House will recognise, to give effect to amendments which, as your Lordships know, we would have preferred this House not to have passed. I suggest we should confine ourselves to that.
§ The noble and learned Lord, Lord Ackner, has also tabled an amendment to Schedule 2. That amendment effectively renders redundant—as does government Amendment No. 2—Clause 1 of the Bill. If the House accepts government Amendments Nos. 1 and 2, and whether or not it accepts the noble and learned Lord's starred amendments, Amendments Nos. 3 and 4, and the amendment to schedule 2 proposed here would also be redundant. I hope, therefore, that the noble and learned Lord will agree not to press this amendment to a vote.
§ I hope that the House will accept government Amendments Nos. 1 and 2 which, as I have explained, simply seek to give effect to the spirit of Clause 1 of the Bill. The two government amendments to Schedule 2, to which I referred at the outset, are simply consequential on Amendment No. 2, and I hope that they will be accepted on that basis. I beg to move.
§ Lord Ackner
My Lords, it will not surprise the House to know that any amendment moved by the Government which is in the interests of justice will he supported by the judiciary; per contra, any amendments which are designed purely for Executive convenience are likely to be strongly resisted. I put that into practice in regard to the proposed amendment by the Government before we come to my amendment to it. I am quite happy for the essential two differences which have been added by the Government; namely, that before one can appeal leave should be obtained either from the trial judge or from the Court of Appeal. That acts as a useful filter. We did not burden our amendment with that detail but, speaking for myself, I am quite happy to accept it.
The other important difference is made in subsection (4) of Amendment No. 2, which provides for quite an unusual situation. If a defendant appeals to the Court of Appeal on the basis that the recommendation was excessive and too severe, he can end up not merely losing that appeal, but finding that the Court of Appeal says that the recommendation should have been even higher than it was. That has the nostalgic flavour of the days when one appealed to the Court of Criminal Appeal at one's danger because the court had the opportunity not only of dismissing the appeal but of increasing the sentence. It is nostalgic of the days before 947 Lord Goddard. When he presided, one would listen with intense anxiety as to the fate of one's colleagues as they addressed the court and then hoped that one would be in time, if the wind was blowing in the wrong direction, to withdraw one's appeal before the court was able to deal with it. It gave one a sense of modified triumph when one saw the look of disappointment on the faces of the judges in that court. However, that is what is being proposed and I think that that is significant for a reason that I shall develop later.
Again, speaking for myself, if a person attacks the recommendation as being excessively strong, I see absolutely no reason why the court (which is dealing with a recommendation) should not say, "Since we have to deal with a recommendation and we have guidelines on these matters, we end up saying what in our view is the right recommendation", which is something to which the Home Secretary attaches particular significance. In other words, today—unlike last week—he is saying to what extent the Court of Appeal can be of great assistance to the Home Secretary and he is inviting that assistance in a wholly unfamiliar way, as I have pointed out.
I return to my amendment. The purposes of the amendment which I moved last Monday were as follows. It achieved open justice. It got rid of the behind-the-scenes activities of the trial judge and the Lord Chief Justice who, without much material to go on, advised the Home Secretary as to the penal part of the sentence, the tariff.
Secondly, it equated, so far as it could, the procedure in regard to discretionary life sentences so that one did not have an odd contrast between the discretionary life sentence, often imposed in regard to more serious crimes, and the murder mandatory life sentence. Thirdly, as has happened in respect of the discretionary life sentence, it enabled the establishment of guidelines or clear open criteria, so that judges who are going to make, as they are obliged to essentially under the practice direction, except in rare circumstances, the recommendation after hearing argument in open court know what the criteria are and how to proceed with consistency. Those were the three aims to be achieved.
The noble Baroness has overlooked the fact that the stimulus for my amendment was not some sudden change of tack. The noble Lord, Lord Monson, asked a most perspicacious question in these terms:I wonder whether in winding up my noble and learned friend Lord Ackner will say whether his amendment will theoretically permit, in certain grave circumstances, the Court of Appeal to recommend an increase in the period which should be served before an individual can be released on licence".Before I answered that question in my reply, the House had the benefit of hearing the Minister. There appeared to be an echo of the noble Lord's anxiety in the following terms. The Minister drew attention to the cases where there would be no appeal by the prisoner against the recommendation. She said:This might be a considerable proportion of cases—and would certainly include those cases where the judge had erred on the side of an unduly lenient recommendation. This means that precisely in those cases where it would be patently right for the Secretary of State to consider imposing a longer tariff than that recommended, he would have no second judicial view to help him in reaching a decision".948 I believed, therefore, that when I replied to the question posed by the noble Lord, Lord Monson, I might, sub silentio, receive some applause from the Minister, because I said:With regard to the question which was posed to me as to whether with this amendment the Court of Appeal would have the power to increase the recommendation made by the trial judge, I would have thought the answer is clearly yes. But the procedure which would be adopted would no doubt be by process of the Attorney-General seeking to move the Court of Appeal (Criminal Division) as he does in other cases where it is alleged there has been under-sentencing".—[Official Report, 26/6/95; cols. 547–553.]In researching the matter, I found that there was a technical problem. Under the Criminal Justice Act 1988, which gives the Attorney-General his power to intervene where sentences are unduly lenient, he must find a "sentence" because he is operating against unduly lenient sentences. Therefore, given the success of the amendment that was tabled last Monday, he could not proceed to intervene unless and until one made the technical amendment so that the word "sentence", which is defined to cover a multitude of oddities in Section 50 of the Criminal Justice Act 1968, was extended yet further. Your Lordships may be interested to know that it already covers recommendations for deportation (which is not a sentence), confiscation orders and declarations of relevance under the Football Spectators Act.
Therefore, in the naive conviction that I was serving not only the interests of justice but achieving what is not always easy—that which the Government wanted—I tabled a simple amendment, which your Lordships will see is now Amendment No. 13. It reads:In section 50 (meaning of sentence), at the end of subsection (1), insert"—this will come under the definition of "sentence"—and a recommendation by the trial judge to the Secretary of State under section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 as to the minimum period".That amendment would have tied up the technicality.
I used Schedule 2 because it dealt with minor and consequential amendments to a number of Acts, including the 1968 Act, which contains the definition of "sentence". I was therefore surprised to receive a long and, as always, immensely courteous letter from the noble Baroness. It was faxed to me at home last Friday and it contained a copy of the amendment which is being moved by her today. It also dealt with the position of the Attorney-General. Perhaps I may read what the noble Baroness stated in regard to the reintroduction in our legislation of power for the Court of Appeal to increase the severity of that which is being ordered:In considering what I have said above, you will wish to note that the Government amendment"—that is subsection (4)—would ensure that the Court of Appeal was able to quash the minimum recommendation made by the trial judge and put in its place a recommendation for an alternative period. The Court would not be prevented from making a recommendation for a longer period than that recommended by the trial judge, if that seemed appropriate based on the facts of the case. Whilst the power to increase the minimum recommendation would be unlikely to be used with any frequency, we take the view that there might be cases where the Court of Appeal reached the view that the original recommendation was too lenient. In such circumstances, we do not think that it would 949 be right for the Court to find itself in a position whereby it could not ensure that the minimum recommendation made to the Secretary of State by the judiciary was the most appropriate one".That is sound thinking but, of course, it relates only to the case in which the appeal is brought by the prisoner.
The only way of dealing with the situation in which the prisoner does not appeal, and therefore puts himself at risk, is via the Attorney-General who since 1988 has had the power, with the leave of the court, to intervene where sentences are unduly lenient. So why on earth not complete the circle and say that the Court of Appeal can make it clear to the Secretary of State what in its view is the right recommendation, not only when the prisoner appeals but when he, with some sense of wisdom, fails to appeal and the Attorney-General intervenes in order to ensure that judicially—because the recommendation has been made by the trial judge—the judicial recommendation does not run the risk of misleading the public in general and the Home Secretary in particular?
Of course, that is all part and parcel, one would have thought—naive though I am—of the Government's policy of stressing how firm they are on law and order and that, so far as they can, they will not allow to be left a judicial recommendation which is clearly under-appreciating the severity of the offence or the danger to the public. That is as I thought was the case.
According to the letter of last Friday, the consideration which moved the Government to resist is stated as follows:As you know, the Attorney-General's power of reference was introduced to ensure that there was a remedy available to the Crown in serious cases when unduly lenient sentences appeared to have been passed by trial judges and where justice demanded that the sentence be increased. With an unduly lenient recommendation a remedy is, of course, already available because the tariff is set by the Secretary of State"—I intervene there to ask why the Court of Appeal should be given power to increase the recommendation on an appeal by a prisoner—I read on:and the Attorney-General's power of reference would not, therefore, play the very significant role which it does in the other cases to which it applies".The letter then states:Extending the power of reference in the way you propose would also have potentially serious implications for the workload of the Attorney-General. We could not extend the power without very careful consideration with him and a careful weighing of the merits of such an addition to his role".It does not need a careful weighing; it needs a simple telephone call to Master McKenzie, the Registrar of the Court of Appeal Criminal Division, which I made about an hour ago. For the past four years, since 1991, the Attorney-General has had the power, and therefore the right, to intervene in discretionary life sentence cases where the judge makes his recommendation in open court.
Consistent with the practice direction in 1993, the judges have been obliged to make such recommendations in all but very rare cases. Therefore, over the years, there must have been a very large number of recommendations made by trial judges. My inquiry of Master McKenzie was very simple. I asked him whether he could tell me how many applications have been made by the Attorney-General—the same judges would be dealing with the mandatory life 950 sentence cases—for leave to the Court of Appeal on the basis that the recommendations were unduly lenient. Without a moment's hesitation, because all the applications come before him, he said that there had been none.
Where is that heavy workload coming from? The same judges will be making the recommendations in the murder cases who make them in the discretionary life sentence cases. So far, their record is such that they have not apparently under-recommended or substantially under-recommended. Why should there be any difference in relation to the same judges going through exactly the same motions as regards murder cases? Why has that simple telephone call not been made?
I suggest to your Lordships again that the main consideration in the Government's thinking on this subject is Executive convenience; it is not justice at all. It was the conflict between those two considerations which lost the Government the amendment which I moved last Monday. There is a risk that the Attorney-General may not take the same line as the Home Secretary. He may move in cases in which the Home Secretary wished he did not; or when appearing before the Court of Appeal, having obtained leave, he may put forward what he considers is the right recommendation cheerfully adopted by the Court of Appeal Criminal Division. Of course I speak only from a convenience point of view. But what will then be the situation when publicly the Home Secretary doubles that which both the Attorney-General and the Court of Appeal Criminal Division have endorsed? There may be inconvenience and there may be embarrassment, but if the Attorney-General is kept out of the matter so that it is a one-sided situation, that problem does not arise.
There is a strange pettiness about the Executive's approach to this clear matter of justice. I invite your Lordships to take the view that there is no earthly reason why this amendment should not be accepted. To say that we are injecting something quite different from that which was contemplated by the House is quite wrong.
The noble Lord, Lord Monson, raised the point. I did not raise it. I plead guilty to that for two reasons: first, I did not realise the technical problems which would have to be surmounted; and, secondly, I assumed—hence the somewhat confident telephone call to Master McKenzie—that the Attorney-General would not have been very active on this subject. Therefore, it had not entered my mind that it would be necessary. But, quite clearly, from a theoretical point of view the power should exist. It exists with regard to discretionary life sentences because when the judge makes his recommendation in those cases there comes into existence an order. Because that happens, power is given to the Attorney-General under the 1988 Act to intervene in relation to any sentence since a sentence is defined by Section 50 of the 1968 Act as including any order.
As I have indicated to your Lordships, this is a simple, technical matter involving no form of major alteration. It is merely a tidying-up operation which I overlooked. I should tell your Lordships that I have spoken to my noble and learned friend the Lord Chief Justice, who endorses wholeheartedly my recommendation and my amendment.
951 The noble Baroness has criticised the drafting of my amendment but she has not criticised the drafting of the amendment to Schedule 2. For my part, she may make her choice. The amendment to Schedule 2 achieves exactly the same objective. But when the noble Baroness tabled her amendment I thought, returning the compliment, that as a matter of tidiness it would be better if everything on this subject were dealt with in one place and that one should not look for the position of the Attorney-General in the schedule but that it should be found all in one section.
I need not take the matter much further. This is not a filibustering speech, as I mentioned with regard to last Monday, but the sitting Law Lords are still, as one would expect them to be, sitting, although I have little doubt of their support. The retired Law Lords, genially known by their brothers as members of "the mothball fleet", are here in quite extensive numbers. I beg to move.
My Lords, I am not quite sure whether this is the right time for one of the mothballs to stand up to support the amendment moved by my noble and learned friend Lord Ackner. However, I shall be very brief because my noble and learned friend covered all the points that seem to me to arise. Judges, being human, may make mistakes. They may make a mistake by sentencing over harshly, or they may make a mistake by sentencing too leniently. Hence the right of the Attorney-General, again after many years of argument, to apply to the court to increase sentences which he considers to be over lenient. That is in the ordinary run of the case. But it is just as important—indeed, perhaps more important—that he should have that right when making recommendations in life sentence cases. It is only by that method that the Court of Appeal will be able to produce a body of guidelines sufficiently based upon applications made to it.
At present, in the way that the Minister mentioned, the only way that the matter of an over-lenient sentence can be rectified is if the defendant himself is rash enough to apply to the Court of Appeal, Criminal Division, to have his sentence reduced because it is too severe. If he has the sense to keep quiet and say nothing, as things stand and without the amendment of my noble and learned friend Lord Ackner, there is no method by which the matter can be considered by the Court of Appeal. It is that hiatus—and it is a dangerous one—which the amendment seeks to cure. I therefore support it.
§ Lord Lowry
My Lords, deluded by my own inexperience, when I saw the Minister's amendment I thought for a moment or two that the Government were accepting the general principle of the suggested amendment moved by my noble and learned friend last week. Of course, that was wrong. I am not being sarcastic when I say that. I realise that when an amendment goes through it is the Government's duty to ensure that it goes to the other place in the most acceptable possible form, even if they do not like the amendment itself. Perhaps I may say, in parenthesis, that I very much hope that the other place will accept this part of the Bill in the state in which it finally leaves your Lordships' House.
952 I wish to support my noble and learned friends in what they said about the position of the Attorney-General. I believe that he should be able to appeal or to refer the matter, whichever phraseology one likes to employ. He already can do so with discretionary sentences, including discretionary life sentences. Frankly I did not like that provision when it was introduced. I tried to stop it in Northern Ireland, but I did not succeed. I had a feeling that when one achieved finality, even if occasionally the accused was rather fortunate in his judge, it should be an end to the matter. However, it is not. Therefore, I believe that we should be consistent about the role of the Attorney-General. I have much more heart in saying that because the Attorney-General would be trying to get a recommendation changed and not trying to interfere with something which had achieved finality.
I have just five very short points to make. In being brief I hope that your Lordships will not, for that reason, consider them entirely insignificant. First, the role of the Attorney-General in looking at a life sentence is not quite the same as that of the Executive. That point was made very cogently by the noble Baroness when the point was last debated. Secondly, the Home Secretary is not considering only the same matters as the Attorney-General and the courts when he is coming to his final conclusion. He can take into account certain considerations and he can differ not only from the court but also from the Attorney-General without, indeed, showing disagreement.
Thirdly, the Royal prerogative can now be exercised in a way which can exhibit a difference from something which the Attorney-General, or those acting on his behalf, have been arguing in court. For example, when an accused person appeals against sentence to the Court of Appeal and the Crown presents arguments the other way, what the Home Secretary might finally do may, to the untutored mind, appear to run counter to something which the Crown had said. That, of course, is also true when the Attorney-General refers what he considers to be an unduly lenient sentence to the Court of Appeal. Admittedly, I am talking about the Royal prerogative and not about the statutory procedure in dealing with mandatory life sentences.
Fourthly, why should we not trust the Attorney-General to behave with good judgment and discretion? Why should we foresee that as a complicating factor? Further—and this relates to something that I said last week but which I believe is still relevant—is it not best that the Home Secretary should receive the greatest possible assistance before he has to apply his own mind to the subject?
Fifthly, in deference to the noble Baroness, and confirming what I ventured to say about her last week, your Lordships will have been impressed by the way in which she put the point. I believe that the noble Baroness has a much easier brief this week, but not perhaps one in which she ought to prevail. However, I agree that this is a more open question than the original question of principle. But I still think that it would be very much better if both sides were able to go further if necessary.
§ Lord Bridge of Harwich
My Lords, I have but a few words to say. It seems to me that the central issue here is very clear. Surely it must be quite illogical that the Court of Appeal should have power to increase the length of the recommended tariff, which has been made by the trial judge where the defendant has appealed, but no such power where he has not. No amount of technicality can hide that illogicality.
My noble and learned friend Lord Ackner referred with nostalgia to the days when Lord Goddard presided in the Court of Appeal, Criminal Division. I do not regard those days with nostalgia at all. At that time, the power to increase the sentence when a prisoner appealed against it was simply used in terrorem of appellants to keep down the lists. That was most unsatisfactory and that is why it went. Surely the logical thing to do, if one is to allow an increase in the recommended tariff period when an appeal is brought, is to provide some mechanism to enable an inadequately recommended tariff by the trial judge to be corrected when a defendant does not appeal.
§ Lord Allen of Abbeydale
My Lords, as a non-lawyer, I should like to say just a few words on the topic. I would prefer not to see the clause in the Bill. I find the repetition of the case for it that we have heard today no more persuasive than I found it last week. I thought the Minister's answer disposed of it pretty completely, but I know that that is not the issue today.
I would just make two points. First, I have grave doubts about the drafting. I am not a lawyer but I have had a good deal of experience of drafting Bills. I have also had a good deal of experience of the unsatisfactory result of putting things in at the last possible moment without adequate time for consideration. I sometimes think there is some merit in the procedure in the other place where one cannot amend a Bill on Third Reading.
Secondly, it seems to me that there is a much greater and clearer distinction between the discretionary life sentence and the mandatory life sentence procedure, and that in the case of the mandatory sentence the risk to which the Minister has drawn attention of confusing the role of the Home Secretary and the Attorney-General is considerable. For other reasons, too, I am against the amendment we are now considering.
§ 4 p.m.
§ Lord Simon of Glaisdale
My Lords, there is really no further argument that needs to be advanced. The case has been cogently and to my mind conclusively argued by my noble and learned friend Lord Ackner. It has been supported by a former Lord Chief Justice, and a former Lord Chief Justice of Northern Ireland. My noble and learned friend Lord Ackner says that his amendment also has the support of the present Lord Chief Justice. Further, your Lordships have heard from my noble and learned friend Lord Bridge, a former member of the Court of Appeal and—may I also say?—a former Treasury devil, so particularly cognisant of the viewpoint of the Executive.
This amendment covers the responsibility of the Home Office, the Attorney-General and the judiciary. I hope that your Lordships will acquit me of egotism if I 954 say that I support the amendment as a former Home Office Minister, a former Law Officer and a former judge. There is only one other thing that I would venture to say. The Minister seems slightly minatory about what might happen in the other place. It would be extraordinarily foolish if the Government encouraged the other place, using their Whip, to challenge your Lordships' view carried so strongly in numbers, particularly when one considers that there are 18 payroll votes in support of the Government, and, perhaps even more strongly, when one considers how the voting went in the Division Lobbies. It seems to me that the Government would be in danger of losing the whole Bill because I can conceive of no reason why your Lordships should change their view after such cogent argument and after such consideration. For the moment I support the amendment.
§ Lord Hailsham of Saint Marylebone
My Lords, I wonder whether I could be foolish enough to intervene in this interesting discussion. I was not able for family reasons to attend the debate which was held on the occasion when the Government were beaten by five votes. However, I believe that I have read every word of the debate. I had the most intense sympathy with my noble friend Lady Blatch. She was given an absolutely unrelenting brief by the Home Office with no room for manoeuvre at all and without any technical knowledge of her own to bring to her support if she wished to relent in any way. Therefore no blame attaches to her either for the result or for the fact that she did not make any concession.
I speak now not as someone with a professional background, although I suppose from the time when I was called to the Bar in 1932 to the time when I resigned as Lord Chancellor in 1987 I must have dealt, in one way or another, with 40 or 50 murder cases, even confining myself to that limited range of subjects. I think it is absolutely lamentable that the Government should find themselves—I speak now as a politician—in opposition to what is virtually a united judiciary. They really ought to listen to what has been said by this united branch of most distinguished lawyers speaking on their own subject. I have rather heretical views but I feel that the Government ought to have given way and ought to give way on the substantive issue which was discussed last time and as to which they have introduced what is virtually a drafting amendment but without commitment as to what they will do in another place. It is extreme folly on the part of the Government to disregard professional opinion to this extent.
Having said that, I want to express my own perhaps more foolish view. It all arises from the mandatory life sentence itself. If there were no mandatory life sentence at all attaching to murder—I have said this in both a judicial and a political capacity—this problem would not arise. Why is there a mandatory life sentence? Murder is not a single crime; it is a bundle of crimes of vastly different culpability and wickedness. It includes the doctor who terminates the life of a dying patient in order to save pain. It includes the case which we have seen in the newspapers today of Private Clegg—about which I shall say nothing other than to mention it—who is being let out after four years only. In my opinion he ought never 955 to have been prosecuted at all. Murder includes the wickedest crimes. There are two factors which we must bear in mind when we deal with murder or indeed homicide of any kind. The first is that murder is, as I say, a bundle of crimes of vastly different culpability. There is also a sheer lottery about it because it all depends on whether the victim dies within a year and a day. If he does not die within a year and a day, it is not murder; it is an ordinary crime of violence and the offender is subject to the ordinary discretionary laws of sentencing for any other ordinary crime.
Murder is a "result" crime which depends upon the chances of the criminal having been successful in ending the life of the victim within a year and a day. I wonder what possible justification there is in the light of those two facts for the existence of the mandatory life sentence at all. We must also remember that we are dealing in the case of the discretionary life sentence, which is a different apparatus of law, with another rather curious thing. That does not mean life. It can mean life and it has certain permanent consequences attached to it, but it is in fact a sentence of imprisonment for an indefinite period. It is not a sentence for 10, 20, 30, 40 or 50 years, or for the whole of a life.
I believe that the Government should approach the judiciary with a greater degree of respect than they have shown in this case. I do not think I have ever known such unanimity to be expressed from the noble and learned Benches as has been expressed in these two debates. I think a little more give and take ought to be displayed by the Home Office and the Home Secretary on both issues which have been discussed today. I shall not take up any more time by inflicting my variously heretical opinions upon your Lordships.
§ Lord McIntosh of Haringey
My Lords, I am on the side of the Minister in this matter. I do not believe that non-lawyers have anything to apologise for in taking part in debates of this kind. We represent a far larger number of people than do lawyers and we have a political and public position to uphold.
Perhaps a non-lawyer may intervene briefly to try to establish what common ground there is and what it is we are arguing about. We are not arguing about the mandatory life sentence. That issue is not before the House today. There are two views on the matter, but it is part of the law and it has to be accepted. I do not believe that we are even arguing about the merits or otherwise of the amendment that was carried last Monday. There can also be two views on that issue. It was carried by the House, and in my view the Government behaved perfectly honourably by seeking to clean up the amendment to make it acceptable in legislative terms to go to another place. Though I very much respect the views of the noble Lord, Lord Allen of Abbeydale, on these matters, nevertheless the issue decided last Monday is not before us today.
We are speaking today about a marginal issue. The issue is whether, in one type of case only—a mandatory life sentence where there has been no appeal against sentence—there should be an opportunity for the state (it does not matter whether it is the Attorney-General or the Home Secretary in this sense) to appeal against too lenient a sentence. I am very much opposed to excessive 956 sentences and I am rather opposed to the idea of appeals against sentences on the ground that the state believes that they are too lenient. I am encouraged in that view by the description given by noble and learned Lords of the lottery that existed in the Court of Appeal a number of years ago. I did not quite understand the noble and learned Lord, Lord Bridge, but I believe that he described it as a rule of terror. That horrifies me. I would hate to think that any amendment would take us back to that. But whatever we may think about it, that issue is not before the House today.
The question before the House today is whether we are completing the object of the amendment which was carried last week by extending it to the power of the Attorney-General to appeal to achieve a more stringent or longer sentence. In pure logic, not emotion, I do not believe that there is an answer to the case put by the noble and learned Lord, Lord Ackner. I do not believe that when he moved his amendment he had thought it out adequately, nor do I believe that he was prepared for the question put by the noble Lord, Lord Monson. I do not believe that it was implicit in what was said in that lengthy debate; but in logic, if that was what was carried last week, we have to carry something on the lines of what the noble and learned Lord has said today.
§ 4.15 p.m.
§ Lord Bridge of Harwich
My Lords, I should like to correct a mishearing of what I said. The phrase that I used in reference Lord Goddard's regime was that he used the power to increase sentences in terrorem to discourage appellants. If one appealed, one was in danger of having one's sentence increased.
§ Lord Bridge of Harwich
One uses the power in terrorem to discourage people from appealing. Perhaps it is a technical legal expression.
§ The Deputy Speaker (The Earl of Listowel)
The Question is that this amendment be agreed to. As many as are of that opinion will say Content.
§ Lord Hailsham of Saint Marylebone
My Lords, I believe that we are discussing the amendment proposed by my noble friend Lady Blatch, which I understand not to be opposed in any way. The words Not-Content which emerged from the Benches behind me—I speak not in terrorem—possibly resulted from a misunderstanding.
§ Baroness Blatch
My Lords, I believe that, as we have spoken so much about the amendment of the noble and learned Lord, Lord Ackner, the House has become rather emotionally attached to voting upon it. The amendment 957 that is before the House now is my Amendment No. 1. Therefore, I should call "Content" rather than "Not-Content".
§ Lord Ackner
My Lords, I took some instruction with regard to this matter. I understand the position to be quite simply that, having moved an amendment to the amendment—
§ On Question, amendment agreed to.
§ Baroness Blatch moved Amendment No. 2:
§ After Clause 3, insert the following new clause:
§ Recommendation in case of life sentence for murder
§ (".After section 11 of the 1968 Act insert—
§ "Appeal against recommendation
§ Appeal against recommendation in case of life sentence for murder.
§ 11A.—(1) Where under section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 a court has made a recommendation to the Secretary of State as to the minimum period which should elapse before he orders the release on licence of a person convicted of murder, the person may appeal to the Court of Appeal against the recommendation.
§ (2) Subject to subsection (3) below, an appeal under this section lies only with the leave of the Court of Appeal.
§ (3) If the court which made the recommendation grants a certificate that the case is fit for appeal under this section, an appeal under this section lies without the leave of the Court of Appeal.
§ (4) On an appeal under this section the Court of Appeal, if they consider that a different recommendation should be made, may—
- (a) quash the recommendation; and
- (b) in place of it declare the period which they recommend to the Secretary of State as the minimum period which should elapse before he orders the appellant's release on licence."").
Lord Ackner moved, as an amendment to Amendment No. 2, Amendment No. 3:
Line 9, after ("person") insert ("(or the Attorney General if he considers that the recommendation substantially underestimates the gravity of the offence or the danger to the public of such release)").
§ The noble and learned Lord said: My Lords, your Lordships have heard full argument and submissions on this amendment. On the substantive issue which we debated last Monday I quoted Justice referring in its briefing papers to the substantive amendment as being a modest but useful step towards justice. What I propose in this amendment is a minor consequential amendment. It should follow the consequences of the amendment which was passed by your Lordships last Monday. I beg to move.
§ 4.19 p.m.
§ On Question, Whether Amendment No. 3, as an amendment to Amendment No. 2, shall be agreed to?
§ Their Lordships divided: Contents, 99; Not-Contents, 111.959
|Ackner, L. [Teller.]||Barnett, L.|
|Addington, L.||Blackstone. B.|
|Ampthill. L.||Bridge of Harwich, L. [Teller.]|
|Avebury, L.||Brightman, L.|
|Banks. L.||Bruce of Donington, L.|
|Carmichael of Kelvingrove, L.||Lovell-Davis, L.|
|Charteris of Amisfield, L.||Lowry, L.|
|Cledwyn of Penrhos, L.||McIntosh of Haringey, L.|
|Clinton-Davis, L.||Mackie of Benshie, L.|
|Craig of Radley, L.||McNair, L.|
|Craigavon, V.||Mallalieu, B.|
|David, B.||Mar and Kellie, E.|
|Donaldson of Kingsbridge, L.||Marsh, L.|
|Dormand of Easington, L.||Mason of Barnsley, L.|
|Ewing of Kirkford, L.||Mayhew, L.|
|Ezra, L.||Molloy, L.|
|Faithfull, B.||Monkswell, L.|
|Falkland, V.||Morris of Castle Morris, L.|
|Farrington of Ribbleton, B.||Morris of Kenwood, L.|
|Fitt, L.||Nelson, E.|
|Foot, L.||Nicol, B.|
|Freyberg, L.||Ogmore, L.|
|Gallacher, L.||Pender, L.|
|Gladwin of Clee, L.||Plant of Highfield, L.|
|Gould of Potternewton, B.||Redesdale, L.|
|Graham of Edmonton, L.||Richard, L.|
|Grantchester, L.||Rodgers of Quarry Bank, L.|
|Grey, E.||Sainsbury, L.|
|Hailsham of Saint Marylebone, L.||Saltoun of Abernethy, Ly.|
|Halsbury, E.||Sefton of Garston, L.|
|Hamwee, B.||Shaughnessy, L.|
|Hanworth, V.||Shepherd, L.|
|Harris of Greenwich, L.||Simon, V.|
|Hayter, L.||Simon of Glaisdale, L.|
|Hilton of Eggardon, B.||Stallard, L.|
|Hollis of Heigham, B.||Stedman, B.|
|Houghton of Sowerby, L.||Stoddart of Swindon, L.|
|Hughes, L.||Strabolgi, L.|
|Hylton-Foster, B.||Taylor of Gryfe, L.|
|Irvine of Lairg, L.||Thomas of Gwydir, L.|
|Jay of Paddington, B.||Tordoff, L.|
|Jeger, B.||Varley, L.|
|Jenkins of Hillhead, L.||Waverley, V.|
|Jenkins of Putney, L.||Wharton, B.|
|Judd, L.||White, B.|
|Kennet, L.||Wigoder, L.|
|Kilbracken, L.||Wilberforce, L.|
|Kinloss, Ly.||Williams of Elvel, L.|
|Lane, L.||Winchilsea and Nottingham, E|
|Aberdare, L.||Chesham, L.|
|Addison, V.||Coleraine, L.|
|Ailsa, M.||Courtown, E.|
|Allen of Abbeydale, L.||Cranborne, V. [Lord Privy Seal.]|
|Archer of Weston-Super-Mare, L.||Crickhowell, L.|
|Astor, V.||Davidson, V.|
|Astor of Hever, L.||De Freyne, L.|
|Balfour, E.||Denham, L.|
|Belhaven and Stenton, L.||Ellenborough, L.|
|Beloff, L.||Elles, B.|
|Blake, L.||Elliott of Morpeth, L.|
|Blaker, L.||Finsberg, L.|
|Blatch, B.||Flather, B.|
|Blyth, L.||Foley, L.|
|Boardman, L.||Fraser of Carmyllie, L.|
|Borthwick, L.||Fraser of Kilmorack, L.|
|Boyd-Carpenter, L.||Gainford, L.|
|Brabazon of Tara, L.||Gardner of Parkes, B.|
|Braine of Wheatley, L.||Geddes, L.|
|Brigstocke, B.||Goschen, V.|
|Brougham and Vaux, L.||Gray of Contin, L.|
|Burnham, L.||Gridley, L.|
|Butterworth, L.||Harmar-Nicholls, L.|
|Cadman, L.||Hayhoe, L.|
|Campbell of Croy, L.||Henley, L.|
|Chelmsford, V.||Hogg, B.|
|Holderness, L.||Munster, E.|
|HolmPatrick, L.||Newall, L.|
|Hood, V.||Northesk, E.|
|Hooper, B.||Oppenheim-Barnes, B.|
|Hothfield, L.||Oxfuird, V.|
|Howe, E.||Park of Monmouth, B.|
|Huntly, M.||Plummer of St. Marylebone, L|
|Inglewood, L. [Teller]||Rawlings, B.|
|Ironside, L.||Renton, L.|
|Jenkin of Roding, L.||Renwick, L.|
|Kinnoull, E.||Rodger of Earlsferry, L.|
|Leigh, L.||Romney, E.|
|Lindsay, E.||Seccombe, B.|
|Lindsey and Abingdon, E.||Shaw of Northstead, L.|
|Long, V.||Skelmersdale, L.|
|Lucas, L.||Strathcarron, L.|
|McConnell, L.||Strathclyde, L. [Teller]|
|Mackay of Ardbrecknish, L.||Sudeley, L.|
|Mackay of Clashfern, L. [Lord Chancellor.]||Swinton, E.|
|Macleod of Borve, B.||Trumpington, B.|
|Manton, L.||Ullswater, V.|
|Marlesford, L.||Vaux of Harrowden, L.|
|Merrivale, L.||Wade of Choriton, L.|
|Mersey, V.||Wedgwood, L.|
|Miller of Hendon, B.||Westbury, L.|
|Milverton, L.||Whitelaw, V.|
|Mountgarret, V.||Wise, L.|
|Mowbray and Stourton, L.||Young, B.|
§ Resolved in the negative, and Amendment No. 3, as an amendment to Amendment No. 2, disagreed to accordingly.
§ [Amendment No. 4, as an amendment to Amendment No. 2, not moved.]
§ On Question, Amendment No. 2 agreed to.
§ Clause 14 [General provisions about references]:
§ 4.27 p.m.
§ Lord Hailsham of Saint Marylebone
My Lords, before my noble friend speaks, I do not believe that we have voted on Amendment No. 1.
§ Baroness Blatch moved Amendment No. 5:
§ Page 11, line 35, leave out from ("verdict") to end of line 8 on page 12 and insert (", finding or sentence shall not be made under any of sections 10 to 13 unless—
- (a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made,
- (b) the Commission so consider—
- (i) in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or
- (ii) in the case of a sentence, because of an argument on a point of law, or information, not so raised, and
- (c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused.
§ (2) Nothing in subsection (1) (b) (i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it.").
§ The noble Baroness said: My Lords, I understand my noble and learned friend's confusion, but Amendment No. 1 was voted on.
§ Turning to Amendment No. 5, Clause 14(1), as drafted, sets out the broad criteria for the referral of a conviction, verdict or finding by the commission to the courts. Essentially it requires that there must appear to be a real possibility that the conviction, verdict or finding will not be upheld on appeal following a reference and that there is some new element, whether argument or evidence, for the courts to consider before they should be asked to look at the case again.
§ These criteria are framed so as to enable the commission to refer possible convictions to the courts so as to discourage unmeritorious applications and references, while at the same time ensuring that cases which should be decided again by the courts are not prevented from going back there by what will be the only remaining avenue. We have always recognised that this is a delicate balance to strike; and so I listened very carefully to all that was said by your Lordships in Committee and last week during the Report stage of the Bill. As I acknowledged then, we saw the force of some of the concerns put forward by the noble Baroness, Lady Mallalieu, the noble Viscount, Lord Runciman, and others. Clearly in setting reasonable criteria for references we must ensure that references are not precluded in circumstances where injustice would result. Although, given their width, the circumstances in which a case which does not need the present criteria but will nevertheless merit referral will clearly be rare, we must ensure that such a referral is still possible.
§ I undertook at Report stage to bring forward the appropriate amendments today. My first amendment, Amendment No. 5, replaces subsections (1), (2) and (3) of Clause 14 with two new subsections. These enable the commission to refer a conviction, verdict or finding in the exceptional case where the existing criterion for there to be argument or evidence not already raised in any relevant proceedings is not met yet but there are nevertheless compelling reasons to justify its referral.
§ The second amendment is purely a drafting amendment. It effectively divides Clause 14, as amended, into two new clauses, thus making its terms clearer and easier to understand. I beg to move.
§ 4.30 p.m.
§ Baroness Mallalieu
My Lords, I rise to support the amendment and in particular to thank the noble Baroness for having listened to concerns expressed in various parts of the House during the earlier stages of the Bill. I and others were concerned that the commission might find itself in a position where it considered that there was a possibility that a conviction was unsafe and was unlikely to he upheld if referred back to the court but felt unable to do so because the evidence or argument was not new and had been raised in some form, however rudimentary or unsatisfactory, at an earlier hearing.
961 In her letter to my noble friend Lord McIntosh of Haringey, the noble Baroness, Lady Blatch, was good enough to explain the amendments that she now proposes and to amplify her understanding of the expression "exceptional circumstances" in Amendment No. 5. She stated:These could include, for example, a case where the defence had failed to represent adequately the defence's case to the court at trial or on appeal, or where the court has developed the law by accepting an argument which it has previously rejected".Those were the main worries which I and others expressed at earlier stages of the Bill. We are glad to see that this amendment makes it clear that the commission now has wide discretion to refer appropriate cases.
I accept the distinction that the noble Baroness draws between conviction cases and sentence cases and am grateful to her for bringing forward these amendments in this way.
§ On Question, amendment agreed to.
Baroness Blatch moved Amendment No. 6:
Divide Clause 14 into two clauses, the first (Conditions for making of references) to consist of subsections (1) and (2) and the second (Further provisions about references) to consist of subsections (4) to (9).
§ On Question, amendment agreed to.
§ Clause 22 [Meaning of "public body" etc.]:
§ Baroness Blatch moved Amendments Nos. 7 to 9:
§ Page 17, line 26, leave out ("mean").
§ Page 17, line 28, after ("Reserve,") insert ("are to").
§ Page 17, line 30, after ("authority,") insert ("are to").
§ The noble Baroness said: My Lords, these are purely drafting amendments designed to improve the clarity of Clause 22(2) of the Bill, which defines "chief officer of police" for the purposes of Clauses 19 and 20. I beg to move.
§ On Question, amendments agreed to.
§ Clause 29 [Minor and consequential amendments and repeals]:
§ Baroness Blatch moved Amendment No. 10:
§ Page 22, line 26, leave out from ("amendments") to end of line 27 and insert ("shall have effect.
§ (2) The enactments specified in Schedule 3 (which include spent provisions) are repealed to the extent specified in the third column of that Schedule.").
§ The noble Baroness said: My Lords, this is a minor technical amendment. It is necessary if the Bill is to comply with the rule that we point up the presence in a repeal schedule of spent provisions. It has no other effect. I beg to move.
§ On Question, amendment agreed to.
§ Schedule 1 [The Commission: further provisions]:
§ Baroness Blatch moved Amendment No. 11:
Page 26. line 22, at end insert:
("() Such a report may include an account of the working of the provisions of sections 10 to 25 and recommendations relating to any of those provisions.").
§ The noble Baroness said: My Lords, we have previously discussed whether the Bill should specify what the commission may include in its annual reports 962 to the Secretary of State on the discharge of its functions. I said at Report stage, in response to an amendment moved by the noble Lord, Lord Harris of Greenwich, that I saw some merit in making it clear on the face of the statute that the commission could comment in its annual reports, if it chooses, on the sufficiency of its own powers and procedures and that I intended to bring forward an amendment to this effect. This amendment is the result. As your Lordships see, it empowers the commission to include in its annual reports to the Secretary of State any comments it wishes to make on any matters which have caused it concern, or whatever, in relation to the working of its functions and powers as set out in Clauses 10 to 25 of the Bill; and of course it may also make any recommendations relating to any of those provisions. I think that that meets the concerns expressed by noble Lords opposite. I beg to move.
§ Lord Harris of Greenwich
My Lords, I welcome the amendment. There was a debate on this matter at Committee stage and further discussion at Report stage. Subsequently, there was an exchange of correspondence between the noble Baroness and myself. The amendment meets our anxieties. I am most grateful to the noble Baroness.
§ On Question, amendment agreed to.
§ Schedule 2 [Minor and consequential amendments]:
§ Baroness Blatch moved Amendment No. 12:
Page 27, line 26, at end insert:
("() In section 18 (initiating procedure), in subsection (2), at the end insert "or, in the case of a recommendation, from the date of the declaration of the recommendation".
() In section 22 (right of appellant to be present), in subsection (3), after "on a person" insert ", or declare a period which they recommend as the minimum period which should elapse before the Secretary of State orders a person's release on licence,".").
§ The noble Baroness said: My Lords, this amendment was spoken to with Amendments Nos. 1 to 4. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 13 not moved.]
§ 4.38 p.m.
§ Baroness Blatch
My Lords, I beg to move that the Bill do now pass.
I said at Second Reading that this Bill is a measure of great importance for it is concerned with both the pursuit of justice and with public confidence: confidence that justice is done and is seen to be done. That this is true has been amply demonstrated by our debates both today and at earlier stages in our discussions. Perhaps I may say that I was greatly heartened by the warm welcome which the Bill received in your Lordships' House and by the constructive approach which has characterised our discussions.
There have, I think, been three main areas on which our debates have concentrated: the criteria for referral, the commission's investigative powers and, lastly, openness and disclosure, and in particular the degree to which the commission will he able to disclose information to applicants.
963 The Bill places broad conditions on the power of the commission to refer convictions, verdicts, findings and sentences to the courts. Their purpose is to guide both the commission and those wishing to make representations as to the sort of circumstances in which it will be appropriate for the courts to hear a further appeal as a last resort. But the criteria must not exclude any case in which an injustice would result if it could not be referred. Following the very helpful earlier debates on this issue in your Lordships' House we have again looked at this. As a result we have extended the existing criteria in the Bill so that the commission may in exceptional circumstances refer a conviction, verdict or a finding to the courts even where the very broad criteria in Clause 14(1) (b) (i) are not met. I am grateful to your Lordships for your contributions to this debate at each stage.
A number of your Lordships have rightly stressed the importance of putting in place procedures for investigating cases which are both effective and independent. To that end, the powers in the Bill for the commission to engage the assistance of police forces and other public bodies and the commission's ability to employ professional experts of all kinds are of the utmost importance. Here again your Lordships have been instrumental in strengthening the commission's powers. The commission will have various means of investigating at its disposal, and the police will play a vital part in helping it. The extent to which the commission's own staff or those it may contract from outside will take part in investigations has been the subject of much scrutiny and much helpful discussion. The noble Lord, Lord McIntosh, and I have had a helpful further discussion since Report stage, and I am happy to confirm the position.
So far as the power to investigate is concerned, Clauses 19 and 20 enable the commission to co-opt police officers or, if appropriate, members of other public bodies. They do not require the commission to do so. The commission will be resourced and equipped on the basis that it will make full use of its Clause 19 powers to request police assistance. But its resources will certainly allow it, if necessary, in an exceptional case to do itself or to commission others to do work that would otherwise normally be done by police officers. The commission will in any case do, or commission others to do, a good deal of investigating of a kind that is not specifically police-type work.
Our debates focused very properly, too, on the accountability of the commission, which is a necessary counterpart to its independence. The Bill contains provisions that will require the commission to submit to my right honourable friend the Home Secretary an annual report on its work, together with appropriate accounts. Both will be laid by him before Parliament. The Bill also now makes it clear that its reports may include any matters which the commission may wish to bring to the attention of the Home Secretary with regard to the sufficiency of Clauses 10 to 25 once in force.
But parliamentary scrutiny is just one aspect of the openness of the commission's work for which the Bill provides. The Bill requires a statement of the commission's reasons for referring a case to be sent to 964 the court where a case is so referred and requires that statement to be copied to all the likely parties to the resulting appeal. The Bill also requires that a fully reasoned explanation of any decision not to refer to be given by the commission to the applicant. We have further provided that the commission may disclose such information as may be appropriate in the individual circumstances of the case. Thus the commission will have full power to discharge its obligations of disclosure in the interests of fairness to the applicant within the framework determined by the courts.
One issue not directly related to the main focus of the Bill has, of course, exercised this House; namely, the creation of a right of appeal against a minimum recommendation made by the trial judge under the terms of the Murder (Abolition of Death Penalty) Act 1965. I would simply remind the House, as I made clear earlier, that the amendments tabled by the Government on this matter are without prejudice to the view that the other place might take. I think that we shall rue the day if we believe in this House that we can take a view that the other place should never be critical or take a contrary view simply because of the size of the majority in this place. When a matter is considered in another place, it is considered by another place entirely on its merits, and Members are entirely free of the elected Chamber and wholly accountable to members of the public outside Parliament to take a view independently of the size of the majority in this House.
The Government are fully committed to putting in place the best—the most effective—criminal justice system that it is possible to provide. With this Bill, we have taken another major step towards achieving that aim.
In conclusion, I thank all noble Lords on the Front Benches opposite who have been so constructive and helpful during the course of this debate. I also thank my eminent adversary, the noble and learned Lord, Lord Ackner, towards whom I promise I bear absolutely no malice. I have been daunted by the sheer weight of argument and legal support that have streamed in here after four o'clock on each of the afternoons that we have met. I hope again that we have been sufficiently constructive to open up a very healthy debate in this House.
That leaves me only to thank my noble friend Lady Trumpington, who gave me enormous support on these Benches, as did my noble friends behind me. The Bill has clearly benefited from the attention that your Lordships gave to it and important improvements have resulted. The public will have reason to be grateful for the contributions made in our debates, just as I am grateful for the spirit in which they were all put forward.
§ Moved, That the Bill do now pass.—(Baroness Blatch.)
§ 4.45 p.m.
§ Lord Houghton of Sowerby
My Lords, the final stages of this Bill have been for us something of an intellectual ordeal—and possibly, if I may say so with great respect, for the noble Baroness herself. You have to be a High Court judge to understand all the intricacies of the debate through which we just went. However, this 965 Bill in its original form received the full approval of this House. I re-read the debate at Second Reading and saw how unanimous was approval for the Bill in that form. It was only when the noble and learned Lord, Lord Ackner, introduced on Report his amendment regarding life sentence recommendations that we got into controversial deep water.
I hope that the Government will not send the Bill back to this House with the new clause in it. The noble Baroness reserved the Government's position on the principle of the matter, as I understood her remarks at the beginning. However, I hope, now that this House has accepted the technical dressing up of the amendment, that it will present no technical difficulties; and I hope that it will present no difficulties on grounds of policy. After all these years of controversy about the penalties imposed on those who are found guilty of murder, this House is entitled to take any opportunity of looking at experience and of trying to bring to bear a degree of humanity, if no more, upon a very difficult subject.
I do not believe that all murderers are bad people. I believe that good people sometimes suffer from the passions and feelings of human beings which from time immemorial have occasionally governed human conduct. If we look at history in all its forms, we see the emotional reactions of the deeply embedded psyche of the living creature to a situation that dominates all attempts at reason or logical decision. One must sometimes deeply sympathise with those who get into this dreadful situation.
We can at least, however, deal with some of the consequences of the actions taken in the past by Parliament in relation to this matter. Parliament said that capital punishment should end; and it has said more than once since then that capital punishment will not be reintroduced. I am sad to hear that one of the contestants for the leadership of the Conservative Party has taken on board, in his policy manifesto, support for the return of capital punishment. I regard that as a disqualification right away. It just shows that his political thinking is no better than that which existed 50 years ago.
When we decide that we shall no longer kill those who are convicted of murder, we have to consider what are the consequences of the alternative that we adopt. Without repeating the remarks I made last week, I feel that the amendment to the Bill in its present form meets the desire for a little more humanity and a little more certainty about the sentence of life imprisonment. Life imprisonment is a sham. We all know that. Only in very extreme circumstances does anyone serve a sentence literally for life.
Therefore, we must consider what we are doing to people. They are men and women. We have decreed that they shall be treated as human beings. We must do our best to give them the opportunity to earn some respite from the horrors of prison and re-enter their previous free life. Humanity must be uppermost in all matters relating to crime, which is one of those big subjects about which it would be unfair to release on the House a lot of philosophical considerations.
966 Let me finish my pleading that the Bill as it stands now should be accepted by the Government. It should not be sent back. Despite the little difficulties over Amendments Nos. 1 and 2 we can feel that we have achieved something worthwhile in the Bill as a whole. We need have no reservations whatever about the wisdom of having put some hope in the minds of those who are sentenced to life imprisonment so that at any rate there exists a target to which they may work and, if they or those advising them feel that the sentence is excessive, there is the right to have it reviewed. That, uttered at the beginning, is the right of the prisoner. Therefore, in all the circumstances, I support the Bill.
§ Lord McIntosh of Haringey
My Lords, in case we are tempted to be too satisfied with ourselves as we come to the end of the Bill, we should remember the very serious problems with the criminal justice system that gave rise to the appointment of the Runciman Royal Commission and, following the Royal Commission, the first drafting of this Bill.
The discussion document issued last year by the Home Office mentioned three objectives for what was then called a criminal cases review authority. One was that conditions which cannot be considered safe are quashed, leaving those which are safe to stand. The second was that there must be arrangements to ensure that doubts about the safety of a conviction can be considered and resolved at the earliest opportunity. The third was to ensure consistency of approach in criminal proceedings. None of those existed before the Royal Commission—or, rather, before the rather horrific cases which gave rise to the appointment of the Royal Commission.
It is a fact that, whether or not they were IRA terrorist cases—many of them were not—there were a number of cases where the procedures before and at trial in very serious offences were inadequate, where the investigations after trial and after conviction were inadequate, where the ability and sometimes the willingness of the Court of Appeal to accept the results of those investigations and the new information were wholly inadequate, and where there was a serious question about the independence of the review procedures which exist to correct miscarriage of justice. As a result, there was a whole series of cases of miscarriage of justice, which sometimes took 15 years or more after conviction to correct. Indeed, in my view, and in particular in the Bridgewater case, there are some which have still not been corrected. Let us be in no doubt about the seriousness of the issues which lie behind the Bill and its predecessor commission.
Having said that, I pay tribute to the integrity of objective of the Government in the discussion paper last April. But before that I pay tribute to the Runciman Royal Commission, which must take precedence over all. I pay tribute to the discussion document in trying to implement the results of the Runciman Commission. I also pay tribute to those who persuaded the Prime Minister that it was possible to get the Bill into this year's legislative programme. Apparently it was only at the last minute, hut we have it and we are grateful for that. Again, I pay tribute to those who have been 967 involved in drafting the Bill, in the presentation of the Bill in this House, and in the discussions that have taken place.
The Minister referred to three particular issues. One was the basis on which the commission might refer cases to the Court of Appeal. As we have heard within the last half hour, the ability of the commission to refer cases is not to be restricted to a very simple, and possibly over-simple, form of words. There are powers to make other referrals in exceptional circumstances. My noble friend Lady Mallalieu played a most valuable part in achieving that objective.
The second issue to which the Minister referred was the investigative powers of the commission. We have always accepted that the majority of investigations should be carried out by the police or comparable bodies. After all, they were the ones involved in the original investigations. They start with greater knowledge than anyone else and it is common sense that in most cases the investigation should return to them. What has been achieved in the passage of the Bill, as the Minister rightly reminded us, is a considerable extension of the powers of the commission to direct investigations and, as she said in her reply a few minutes ago, to carry out investigations themselves. I am enormously grateful to her for the way in which she approached this issue and accepted the necessity for the integrity and independence of the commission as an investigative body to be maintained and enshrined in statute.
The third issue to which she referred was disclosure. I must confess that we have not achieved the kind of changes that we wished. It is still the case that disclosure is the exception rather than the rule in what I think of as Clauses 22 and 23 but which no doubt are differently numbered now. It is still the case that there is insufficient protection for appellants to ensure that after their trial they have access to the information that is necessary for them to put forward an effective case. But, as we understand it, disclosure is to be the central subject of a major criminal justice Bill to be introduced probably in the next Session. Nobody can say what will be in the Queen's Speech—if there is to be a Queen's Speech from this Government—and therefore I am content to leave that issue until we come to the major debates on disclosure at that stage.
I do not think that we have obtained all that we wanted on legal aid. I am sure that my noble friend Lady Mallalieu will agree on that. Nevertheless, there have been improvements in the conditions for legal aid.
The Bill started off as a well intentioned and honourable Bill. It lands up as a good Bill. This House can be proud of the changes that have taken place. I am grateful for the collaboration of noble Lords on the Liberal Democrat Benches; the noble Lords, Lord Rodgers and Lord Harris. I am grateful to my noble friend Lady Mallalieu and to Ministers on the Front Bench.
I found myself in the rather strange position of being a constant ally of the judges. That is not normally my position. Their interventions were constructive and, when I fully understood them, I tended on the whole to agree with them. I admire and respect the noble and 968 learned Lord, Lord Ackner, and his colleagues for their persistence in putting forward those points. We end up with a Bill which will satisfy the noble Viscount, Lord Runciman. For me, personally, it is a Bill which would have satisfied my late father-in-law, Tom Sargant, who was the first secretary of Justice for a period of more than 25 years. On his behalf, I am proud to have played some part in the passage of the Bill.
§ 5 p.m.
§ Lord Rodgers of Quarry Bank
My Lords, I associate myself with almost everything said by the noble Lord, Lord McIntosh, about the Bill and its progress through the House. I am grateful to the noble Baroness the Minister for dealing with what was an extremely complex Bill. I am delighted that I was not in her position, with her brief, and particularly delighted that I did not have to do battle with the noble and learned Lord, Lord Ackner. I would have done much less well than she, and I say that irrespective of whether or not I agree with the Government's position on the matter.
The noble Lord, Lord Houghton, referred to the latter stages of the Bill as being an intellectual ordeal. I prefer to think of them as having been an education. This is certainly the first experience I have had of the Law Lords in action, either retired or active. They are a formidable group and it is an interesting commentary on changes in our society that for many of us the Law Lords now speak as a radical voice whereas, once upon a time, they were essentially the voice of the status quo.
One part of the Bill in which I expressed specific interest was the question of the investigative powers of the commission. I shall look carefully at what the Minister said following her discussion with the noble Lord, Lord McIntosh. In Committee she referred to the powers of the commission as being substantially prescribed, in so far as it would not be able to undertake investigations of its own because it would have no in-house team. However, on Report she said,an investigation can be undertaken by the commission".—[ Official Report, 26/6/95; col. 581.]Those two points of view are reconcilable. I believe the noble Baroness was seeking to show that the commission had wide powers; that it would be independent; and that, although it may not have the resources to undertake an investigation on its own, it could go a long way in the direction of ensuring its terms and controlling it thereafter.
I agree that the Bill is a useful addition to the statute book. I agree also with what other noble Lords said in expressing the hope that it will return to this House in its present form and that the Government will take no lead in seeking to amend it. The Bill has made progress here and has been improved during that time.
§ Lord Ackner
My Lords, in a few words I should like to add my congratulations to those already accorded to the noble Baroness on a quite outstanding grasp of a complex Bill—and an important Bill too. She managed to achieve a great degree of co-operation and, as a result, significantly improved parts of the Bill.
969 My intervention, as I indicated at the start, was a modest one. It had nothing to do with the discretion of the Home Secretary to decide how long a prisoner stays in prison. I echo the words of the noble and learned Lord, Lord Hailsham, and express the hope that the experience of the Clegg case may perhaps have persuaded the Government that it is not a happy situation when one mixes politics with the judicial function of sentencing.
I associate myself also with the words of my noble and learned friend Lord Simon of Glaisdale with regard to the treatment in the other place of the clause resulting from our Amendment No. 2, which we debated today. Of course one does not decide whether to reject or accept what comes from this House purely on the basis of the size of the majority. Incidentally, I believe it was 16, and not as stated by the noble and learned Lord, Lord Hailsham, who was referring to an issue that I lost rather than one that I won; that is, in relation to contingency fees. One must have regard to the weight of the argument.
In this Bill the judiciary established a record. I have been in a number of debates where the number of Law Lords who voted against the Government reached 10. On this occasion, if we include my noble and learned friend the Lord Chief Justice and the noble and learned Lord, Lord Donaldson of Lymington, a former Master of the Rolls, as Law Lords, no fewer than 17 judges of that distinction voted against the Government, with not one in their favour. When one is dealing with a legal subject, if their advice is rejected in the manner which has already been threatened when this goes to another place, then it is a poor outlook for the triumph of justice over executive convenience. I hope that that situation will not occur. However, as I indicated, this was only a minor part of an important Bill to which tributes have been justifiably paid to the noble Baroness. I support the Motion.
§ On Question, Bill passed and returned to the Commons with amendments.