Coroners and Justice Bill

My Lords, this is yet another elephantine Bill. There is far too much in it; indeed, we have far too much legislation generally. I disagree with the noble and learned Lord, Lord Falconer of Thoroton, on this subject, although I agree with everything else that he said today. It seems that departmental Ministers feel the need to show their power and importance by getting as much legislation as possible through Parliament, whether or not it is needed. I will confine what I say to the part of the Bill that deals with justice, leaving out coroners. What I will say is not entirely in line with the official policy of my party. I will take up three issues. The first of these is the new provision on murder in Clauses 42 to 46. Murder covers an enormously wide range of evil, from sadistic multiple murder to the mercy killing of a beloved spouse or partner. I have felt for a long time that to cover the width of this crime, there should not be a mandatory life sentence. In that, I agree with the noble and learned Lord, Lord Mayhew. The Government have absolutely refused to consider this. Not only that, but when they asked the Law Commission to review the law of murder, they refused to allow it to consider the removal of the mandatory life sentence, which meant that it originally provided a wholly incomplete report. The Government did so presumably out of fear of what the Mail and the Sun would say. In the case of mercy killings, a life sentence is usually avoided by a dubious but merciful interpretation of the law on diminished responsibility, as set out in Section 2 of the Homicide Act 1957. That is likely to be made more difficult by Clause 42 of the Bill, with a new test of diminished responsibility that is likely to be more difficult to meet than the existing one. Clauses 44 to 46 also replace the other partial defence to murder of provocation, now to be altered and called "lack of control". The definition of provocation has always been difficult for juries to understand. It creates an artificial dividing line where, in reality, none exists. The abolition of a mandatory life sentence would enable the defence of provocation to be abolished and diminished responsibility to be limited to cases of serious mental abnormality, where detention in a secure mental hospital would be appropriate. The effect of this would be to leave issues such as provocation—and many such cases are now treated as ones of diminished responsibility—to sentencing by the judge. The second issue is the provisions of Clauses 49 to 51, which cover assisted suicide. I declare an interest as a member of the organisation Dignity in Dying. I am ordinary member, not an office-holder, though my wife is a member of the board. I was an enthusiastic supporter of the Bill of the noble Lord, Lord Joffe. My personal belief is that assisting the suicide of a person who has a few weeks or months to live, and will suffer great pain and distress during that period, is not and should not be a crime. I should like to see the Bill moving in that direction. It does not. It is a matter of serious concern that the Bill does not merely restate the existing law, but goes beyond it. My concern is with new Section 2 of the Suicide Act 1961, which has been inserted by Clause 49 of the Bill. That new section extends the crime of encouraging or assisting suicide expressly to cases where the defendant has encouraged the suicide of people not known to him or her. That is a potential threat to freedom of speech on this issue. It is not just my view, but that of the Joint Committee on Human Rights. Paragraph 1.165 of its report says: ""We consider that the breadth of the offence remains uncertain and has the potential to have a chilling effect on a range of activities involving reference to suicide or the provision of information or support around end of life decision making. We consider that this chilling effect could engage the right to freedom of expression and the right to respect for private life … and would require justification"." I do not believe that it is the Government’s aim to prevent serious public discussion of issues relating to suicide and proposing, if necessary, a change in the law. The Government’s intention, quite rightly, is to stop the repulsive practice of people using their websites to encourage teenagers and young adults to commit suicide. I understand that. However, it seems to be all too possible to interpret Clause 49 as extending well beyond that. For example, the moving BBC television programme that dramatised the journey of Dr Anne Turner to Zurich, with the assistance of her children, to enable her to commit suicide could well be viewed as encouraging others to follow the same path. Indeed, the noble Baroness, Lady Finlay, indicated that that has happened in at least one case. Nevertheless, such programmes should, in my view, unquestionably be legitimate. We cannot insist on silence on such important issues. Clause 49 should be modified to ensure that it extends only to the unacceptable behaviour that appears on some websites and had tragic effect in Bridgend. I agree with the noble and learned Lord, Lord Falconer, that the Bill is not the right occasion for debating a full-scale change to the law of assisted suicide. That would need separate legislation. I also agree with him that we should debate changes to the law concerning travel abroad to countries where assisted suicide may be legal. I will not go into that in more detail, because I am sure that it will come up later. The third issue has not been touched on at all so far in the debate, and that is the problem of indeterminate sentences. They were introduced by the Criminal Justice Act 2003 and subsequently modified by the Criminal Justice and Immigration Act 2008. Indeterminate sentences may be given for specified offences involving violence. When someone is convicted of such an offence, the judge may be expected to impose an indeterminate sentence. This overrides the upper limit of sentence provided by law and is akin to a life sentence because the prisoners do not know what their final release dates will be. At the time of the conviction, the judge imposes a minimum tariff, but to obtain release after the minimum tariff has been reached prisoners must satisfy the Parole Board that they have corrected their violent behaviour. This usually requires prisoners to attend training courses. The problem is that these courses are simply not available. The result is that prisoners remain in prison long after their tariff has expired, not because of their misbehaviour in prison, but because they have not been able to attend those courses. The consequence of this is obvious and damning. A briefing paper by the Criminal Justice Alliance gives startling figures. As of 12 February, there were more than 5,000 prisoners serving indeterminate sentences. In fact, 1,487 of those had already passed the date of their minimum tariff, but as of 15 January—only four weeks earlier—only 47 recipients of indeterminate sentences had been released on licence. That is about 3 per cent of those eligible for release. This shows that the treatment required to obtain release is either totally ineffective, hopelessly underfunded or both. Indeterminate sentences met devastating criticism earlier this year in a report by the Chief Inspector of Prisons and the Chief Inspector of the National Probation Service. Degree of violence or a bad previous record rightly lead to longer sentences and always have done. The introduction of indeterminate sentences may have been well meant, but it has been not only a failure but an extremely expensive failure. The scheme should go. Finally, I strongly support the speeches of the noble Baroness, Lady D’Souza, and others on the proposal that non-residents who are present in the United Kingdom should be liable for genocide and other serious crimes under international law whenever committed. That seems to have the almost complete support of Members of your Lordships’ House.