Coroners and Justice Bill

I know that your Lordships will agree when I say that the Committee owes a great debt to the noble and learned Lord, Lord Lloyd, not only for the terms of his amendment but for the quality of the debate in your Lordships’ House that it has engendered. In promoting his amendment, the noble and learned Lord exhibited the intellect of a former Lord of Appeal in Ordinary, together with the experience that he has brought from sitting as a High Court judge in many murder trials. I agree with the assessment of the noble and learned Lord, Lord Lloyd, that the abolition of the mandatory life sentence is not a political option at present. It is not on the table, as the noble Baroness, Lady Mallalieu, suspected in her intervention, and will not be in the foreseeable future. The value of the amendment of the noble and learned Lord, Lord Lloyd, is that it recognises that fact. In redefining the offence of murder in its report, the Law Commission also recognises that as a fact. However, like the Law Commission report, the issue that this amendment addresses is not the mandatory life sentence but the appropriate definition of murder to which it should apply. That brings me to my first question to the noble and learned Lord, Lord Lloyd. In his amendment, to which definition of murder does he foresee the mandatory life sentence applying? In other words, what is the starting point before the court goes on to consider extenuating circumstances? Is it the existing definition of murder? I see the noble and learned Lord nodding and therefore I do not need to go on to suggest what other definitions of murder might have been in his mind. I cannot begin to trace the journey that the noble and learned Lord, Lord Lloyd, undertook that led to the final draft of his amendment, but it is an amendment of great perspicacity because he leaves the role of deciding whether there are extenuating circumstances to the jury. It is the noble and learned Lord at his most deft, if I may say so, and, for the Government, at his most challenging—because the insightfulness, as the Americans say, of the amendment is that the jury is the best possible expression of public opinion that the court could have in looking at what is an appropriate sentence in the circumstances. We are told that the great problem that we have with the law relating to murder is public opinion and that, whatever the politicians do, in the end we will always come up against this barrier But what better expression of public opinion in a case can you have than a jury? It comes much closer to the situation than any newspaper editor is able to do and, what is more, it is composed of ordinary members of the public selected at random from our society. Therefore, I hope that the Government will think about this amendment very seriously. One hesitation that I have about the amendment is whether too much discretion is left to the jury. The noble and learned Lord, Lord Lloyd, mentioned a number of possible extenuating circumstances. He addressed mercy killing, the battered wife, the particular issues to which the Doughty case gave rise and, of course, the soldier. I wonder whether these issues ought not to be expressed in the amendment and, if it ultimately succeeds, in the Bill and then the Act. I recognise the difficulties that are involved because one wonders how one can foresee a spectrum of extenuating circumstances. This is a real difficulty because, although the amendment gets over the crucial question of public opinion—that is its real ingenuity—nevertheless one has to consider very seriously the extent to which the discretion of the jury should be constrained. I know what the answer of the noble and learned Lord, Lord Lloyd of Berwick, will be. He will say that it should be left to the discretion of the judge. I find that initially an attractive solution; but I should certainly like to go away and think about it if that is his response to me.