Coroners and Justice Bill

Perhaps I should make it clear that unlike the previous amendment, this is not just probing in nature. It seeks to enable a jury to bring in a verdict of murder with the rider that in the jury’s view, there were extenuating circumstances. The effect of that rider would mean that the judge would not be obliged to pass a sentence of life imprisonment, but could pass such other sentence as would be appropriate in the circumstances found by the jury. Perhaps I may start by listing some of the advantages that would flow if the amendment were to find favour with the Committee. I shall then mention the safeguards that have been built into the amendment, and finally, give the reasons for believing that the amendment would work in practice. What are the advantages? I shall limit myself to mentioning only four, but I suspect that there are many others; indeed I know that there are others. In the first place and most obviously, it would provide an answer to the case of the mercy killing. The evidence shows very little support among members of the public for imposing a life sentence of imprisonment in the case of the genuine mercy killing. That evidence is set out in the Law Commission report at paragraph 7.47 and is confirmed by the Nathan committee, which reported in 1988. Indeed, many Members of this House served on that committee. The committee members had mercy killing well in mind when they recommended the abolition of the mandatory life sentence. Perhaps I may say a brief word about the mandatory sentence. I remain firmly of the view that it ought to be abolished because it is the one single factor that makes coherent reform of the law so difficult. But I accept that, as things are for the moment, its abolition is not a practical possibility, if only because it is opposed by both of the main political parties. They oppose it for reasons that I regard as specious, but nevertheless, there it is. So we must find a solution other than the abolition of the mandatory sentence to deal with the practical problems that arise. I now turn from the Nathan report to the Law Commission report. The commission was hamstrung by the obligation imposed on it by the Government to regard the mandatory sentence as continuing. That did not make its task any easier. But at paragraph 7.48, the commission did express the view that a life sentence is "neither necessary nor appropriate" when dealing with the genuine mercy killer. Regrettably, however, it made no final recommendation on that point, because—regrettably again—it had failed to carry out any public consultation on that particular question. It gives that explanation in paragraph 7.30 of its report. However, the absence of that public consultation need not matter, because I do not myself believe, and I doubt whether any Member of this House present today believes, that there could be any doubt as to the views of the public on imposing a life sentence on a genuine mercy killer when the judge goes on in the same breath to say that he may serve no more than two or three years at the most. That makes a mockery of the law. If it be said that the life sentence is necessary for the protection of the public in such a case, I would ask: is there any known instance of a mercy killer killing twice? So what is to be done? Later on, we were to have come to an amendment in the name of the noble Lords, Lord Joffe and Lord Goodhart, in which they had proposed that mercy killing be charged as manslaughter, and not as murder. I think that amendment has now been withdrawn, but my amendment would achieve exactly the same result in practice, but by a different—and I suggest simpler—route. Its advantage is that it would not require a definition of mercy killing on the face of the Bill. It would leave that question to be decided in each case on the facts by the jury, which is where the decision belongs. My experience of trying many murder cases is that the more one leaves to the jury the safer one is. So much then for the first advantage—mercy killing. I can deal with the other advantages more briefly. The second advantage is that it would cater for those difficult cases, of which Clegg is the best known example, where a soldier or a policeman fires and kills in the agony of the moment. They may be technically guilty of murder, as the law now stands, but to have to sentence a man such as that to life imprisonment, when they will in practice serve only a year or two at most, again, makes a mockery of the law. Thirdly, the amendment would cover the case of the battered wife. The Government believe that the existing law of provocation favours the husband who kills in anger, as against the wife who kills the husband after years of suffering abuse. They say that the law needs to be rebalanced in favour of the battered wife. That was the view that the noble Lord, Lord Bach, if he remembers, expressed to me in his letter of 18 May—a view with which I very largely agree. The case of the battered wife is indeed a very deserving one, but it cannot be dealt with by rejigging the law of provocation, as we shall see when we come to Clause 44. The battered wife who makes a deliberate decision to kill her husband has not lost her self-control; nor can she be brought within it in any way by extending the existing law of diminished responsibility. On the other hand, the battered wife is just the sort of person who should be covered and would be covered by this amendment, as it would enable the jury to find extenuating circumstances. Finally, I come to the fourth advantage. There have always been awkward cases on the edge of provocation and of diminished responsibility, like the case of Doughty. A parent who has been without sleep for nights on end because of a crying baby loses his or her temper and throws the baby on the floor, with fatal consequences. What conceivable point is served by sentencing such a person to life imprisonment? One thing is certain beyond any doubt: he or she will not do it again. The thought that other parents might be deterred is clearly absurd. Doughty is just the sort of case where a jury should be able to exercise what is sometimes called the jury equity and find extenuating circumstances. I now turn briefly to the safeguards. The first and most obvious is that it would be up to the judge to decide whether there was evidence on which a reasonable jury might find extenuating circumstances. If there was no such evidence, he would say nothing about it in his summing up. If there was, he would say that it was for the jury, and the jury alone, to decide whether there were such circumstances. He would not give any indication, one way or the other, of his own view. There would, of course, be nothing to stop the jury from adding a rider where it had not been told about such evidence by the judge but the judge would not be bound by such a rider and would pass a sentence of life imprisonment in the ordinary way. The second safeguard is that in any case where the judge does not pass a mandatory sentence, he would be obliged to give his reasons. Those reasons could then be looked at by the Attorney-General, and if the Attorney-General took the view that the sentence was too lenient, he or she could refer it to the Court of Appeal. Lastly, I come to why I think the amendment would be effective. First, it is not dissimilar, although it is by no means the same as, to the old recommendation to mercy in the days of capital punishment. The Home Secretary was not obliged to accept such a recommendation, but in many cases he did. As far as I am aware, it did not cause any problem. That practice fell out of use but only because it was thought in those days to be unconstitutional for the jury to recommend mercy, which was the prerogative of the Crown rather than of anybody else. Secondly, such a system was found to have worked well in France in the days when there were minimum sentences for a large number of grave offences. It was open to the jury in France to find "circonstances atténuantes"; in that case, the minimum sentence did not apply. Thirdly, and perhaps even more relevantly, this worked well in South Africa in the days when it had capital punishment. Those are the reasons why I believe the amendment would work. Before sitting down, I should like to pay a very warm tribute to Professor John Spencer of Selwyn College, Cambridge. The ideas that I have put before your Lordships today were not mine in origin—I wish I could say that they had been—but his. I believe that they are a sensible and practical solution to many of the problems which will continue to arise until the mandatory sentence is finally abolished. If the idea finds favour with your Lordships, the credit belongs not to me but to Professor Spencer. I beg to move.