Coroners and Justice Bill

The amendment stands in the name of my noble friend Lord Thomas of Gresford. I hope that the Committee will grant me the indulgence of allowing me to be his, albeit inadequate, substitute. Rumour has it that my noble friend is in South Africa trying to persuade lions to roar three or four points louder than in the past couple of weeks. When I was a foal in a barrister’s stable in which my senior colleagues were, as they now are, my noble friends Lord Thomas of Gresford and Lord Hooson, I was taught that if someone else gives one a good point on a plate, one should move fast and make it one’s own. That is what I seek to do in moving this probing amendment. The background to the amendment lies in the successive pusillanimity of Governments of every possible persuasion. I hearken back to the old Criminal Law Revision Committee, which I suspect was possibly in place before anyone in this House was practising at the Bar. The noble and learned Lord, Lord Lloyd of Berwick, has just made a signal confession, so he will remember it well—I tempted him. For a couple of generations and more, Governments have not had the courage to remove the mandatory life sentence. We are now going to embark on a series of debates on Part 2 of the Bill concerning complications of the law designed to avoid removing the mandatory life sentence, but these are an obstacle course set up against the merits of something that could be much simpler. I say to the Government at the outset that it is high time that we no longer had the mandatory life sentence and that we had something along the lines of this probing amendment—I had hoped that we would receive it from the Government who, to their credit, introduced the Human Rights Act—which is founded on the Law Commission’s report entitled Murder, Manslaughter and Infanticide of 28 November 2006. I fear that the failure to remove the life sentence is either a lesson learnt from, or possibly a denial of, the old Burkean adage that a parliamentarian should be a pillar of what is right and not merely a weathercock of public opinion, although I am unsure as to what public opinion really now is on the mandatory life sentence. I think that if we were to ask the public a series of intelligent and intelligible questions about the mandatory life sentence, we might find that they took a different view from some of the popular papers. My real fear is that the Government may have gone below the superficiality which is usually exercised by Governments and discovered what happened to Burke when he said that in a celebrated by-election in the West Country, which history reveals he unfortunately lost. This probing amendment provides that a person shall be guilty of murder if they intended to cause serious injury to another person and were aware that their actions could result in the death of another person. Proposed new subsection (2) provides that a person shall be convicted of manslaughter if he was unaware that there was a serious risk that his actions could result in the death of another person. This is very close to the Law Commission’s recommendation in 2006. It recommended the adoption of a three-tier structure of general homicide offences to replace the current two-tier structure of murder and manslaughter. There was considerable debate on the consultation paper issued by the Law Commission prior to its full recommendations, and there was a great deal of support for its proposal from, for example, the resident judges of the Central Criminal Court. It is worth emphasising that the daily, although not exclusive, diet of Central Criminal Court judges, High Court judges and senior circuit judges—every man and woman among them—is murder cases. They try more murder cases than possibly all the other courts in the country added together. The proposal also had the support of the criminal sub-committee of the Council of Her Majesty’s Circuit Judges, importantly Victims’ Voice, JUSTICE, the Crown Prosecution Service, which saw the proposal as entirely practicable, the Criminal Bar Association, the Law Society and even those radicals, the criminal law teachers at the LSE. There were groups opposed to the provisional proposal—among them, the Higher Court Judges’ Homicide Working Party, which thought that the restriction in the consultation paper of the Law Commission made the definition of first degree murder too narrow, and that objection is reflected in the amendment. The Higher Court Judges’ Homicide Working Party thought that first degree murder should be extended beyond cases of intentional killing to cover homicides in which the offender acted on an intention to do serious injury and was recklessly indifferent as to causing death. It was the virtually unanimous view that people should not be convicted of murder, at least without a distinction between first and second degree, if they either did not intend to cause serious injury or were not recklessly indifferent as to causing death. The present law causes real difficulties. Judges are faced with verdicts of juries which have said "guilty" to murder, leaving the judge to decide whether there was an intention to kill or an intention to cause grievous bodily harm. The proposals in the amendment would enable a jury to make the choice by grading the offence at the appropriate level. Judges now have immense experience of sentencing in homicide cases. In reality, we have a rather artificial sentencing position now. Judges do not like telling lies forced on them by statute. We now have a situation in which a judge is forced to pass a life sentence because it is mandatory. Having passed the life sentence, the judge then indulges in a completely different exercise in which he or she in effect says, "This is not really a life sentence. I am now going to impose a tariff". The amendment would bring the law into a consistent position with practice and would also bring the public, in the form of juries, into the decision-making process by which the jury would qualify the act complained of and committed by the defendant. It is therefore my suggestion that this kind of improvement of the law would make a significant step forward. It would mean that those who watch homicide trials—particularly the media, since they are inclined to be so critical of what happens in court—would see that homicide cases were being dealt with in a realistic, common-sense and logical way. There would no longer be a large gap in the degree of culpability involved, as between the alternative fault elements in the current offence of murder. I was also taught in that stable that one of the virtues of cogency is brevity; so I beg to move.