Coroners and Justice Bill

My Lords, I draw attention to the practicalities of the amendment and to the consequences of the trial if we go down this route. I fully support the amendment—it is completely correct—but, as the noble and learned Lord, Lord Mayhew, said, cases will come forward with an infinite variety of circumstances. I find it possible to conceive of a case where the defence ran with diminished responsibility, giving three sets of circumstances that combined to produce extenuating circumstances sufficient to comply. The jury could be convinced by two of those circumstances but not at all by the third. That is implicitly provided for in subsection (3) of the proposed new clause, although whether it has that aim, I know not. It states: ""Where the jury has so found, the judge shall not be obliged to pass a sentence of life imprisonment but may pass such other sentence as he considers appropriate having regard to any extenuating circumstances found by the jury"." The jury could therefore make a finding to the effect that, "We can find on A and B but we do not find a third element". That leads me to another train of thought: the role of the prosecuting counsel in this part of the case. There are people here with huge experience—I did do criminal law in my younger days but I have not done it for ages—who can explain the role of the prosecuting counsel. As the defence marshals the evidence which, on its case, will lead to the judge making a direction in favour of a finding of extenuating circumstances, I assume—although others with more experience may contradict me—that the prosecuting counsel will be able to test that evidence as it comes forward. That would necessarily lead to some prolongation of the trial, but one would have to accept that if this is the route down which we are going to go, or we will be going, I hope. Presumably, as the prosecuting counsel is not concerned with the actual sentence, he would not be able to make submissions as to whether the totality of the extenuating circumstances as found by the jury amounted to something sufficient to give a lead to the judge giving a proper direction in accordance with subsection (1). I will just say that there could be foreseeable difficulties—