Coroners and Justice Bill

I strongly support the noble and learned Lord, Lord Lloyd of Berwick, in his Amendment 150A, to which I have added my name. I have for a long time believed that a mandatory life sentence for murder was wrong. Murder covers an immense spectrum, from sadistic, multiple murders to mercy killing of a beloved spouse or partner. The sentencing should be given an equally wide spectrum. When the Government asked the Law Commission some years ago to report on changes to the law of murder, they expressly excluded from consideration the removal of the mandatory life sentence. This was, frankly, a surrender to the tabloid press. The Government almost certainly knew that the mandatory sentence was wrong; they must have known that the Law Commission would very probably say so; therefore, they prevented any discussion of the mandatory nature of the sentence. We were left as a result with a complex proposal by the Law Commission for new legislation about murder, creating separate first and second degrees of murder which I believe were unnecessary and which have in any event not so far been implemented—nor have the Government shown any signs of doing so. Mandatory sentences have a seriously damaging effect. They make necessary, as the noble and learned Lord, Lord Lloyd of Berwick, pointed out, the partial defences of diminished responsibility and provocation. Diminished responsibility is often used to exclude mercy killers from life sentence by an overgenerous interpretation of what constitutes diminished responsibility. This is an act of kindness by the judge and the jury, but it means that the law is being distorted. Provocation is an unsatisfactory defence, because it has developed into a complex legal principle which it is far from easy for a judge to explain to the jury. The law would be greatly simplified and made more humane by abolishing the mandatory sentence for murder and leaving what are now partial defences to be dealt with by a procedure which would enable sentencers to take them into account. My original view was that all that was needed was to abolish the mandatory life sentence and leave sentencing to the judge. However, the amendment of the noble and learned Lord, Lord Lloyd, improves on this considerably—thanks are indeed due to the professor—by involving the jury as well as the judge. That is a crucial step. It is both correct in principle and would make the change in the law much more acceptable to the public. First, the judge would have to direct the jury that it could conclude that there were extenuating circumstances. Secondly, the jury would then have to agree that there were extenuating circumstances which justified a maximum sentence of less than life. Thirdly, there would be a possibility of appeal to the Court of Appeal against an unduly lenient sentence. I would ask one question of the noble and learned Lord, Lord Lloyd, as a matter simply of explanation. I assume that the number of members of the jury required for finding that extenuating circumstances existed would be 10, 11 or 12, which is the same number as is required for providing a conviction or an acquittal. That means that in the case of a unanimous conviction by 12 jurors for murder, the rider finding extenuating circumstances would require 10 jurors to support it, not all 12. The noble and learned Lord will tell me whether that is correct. The amendment of the noble and learned Lord, Lord Lloyd, would simplify the law and make it much fairer. It should make it possible, for example, to limit diminished responsibility to cases of mentally disturbed murderers who needed to be placed in a secure mental hospital and not in an ordinary prison. The amendment should enable provocation to be eliminated as a partial defence, and it should enable people whose actions did not deserve a potential life sentence to avoid one. As I have already said, because of the necessity of consent of the jury to the process, it would be much more acceptable to the public. The amendment would make an admirable change to the law. It would remove the absolute requirement of mandatory sentence, but do so only if both the judge and the jury were satisfied that there were extenuating circumstances which justified a lesser maximum sentence. I think that at one stage the noble and learned Baroness, the Attorney-General, said that the best is the enemy of the good. I hope that that means that she thinks that what is proposed in the amendment is the best. It certainly seems to me to be the best, but I do not think that in this case it is the enemy of the good. There is a strong case for adopting the amendment and the principles behind it.