The noble and learned Lord, Lord Donaldson of Lymington, tempts me to my feet; I had not intended to speak. I shall not follow the noble Lord, Lord Morgan, into the territory of Magna Carta, save to say that he is quite right. I am more concerned with the mundane matters of theft and minor felony. The great age of the jury as the bastion of liberty is in the first great age of the mandatory sentence, when one suffered the death penalty for any crime worth more than one shilling. Now we are entering what looks like the second age of the mandatory sentence. That case is beginning to acquire, again, a special merit.
It was my privilege this year to give the annual lecture at the Shakespeare birthday celebrations. The play was "Measure for Measure" and the text, of course, was mercy. It became clear to me as I worked on it that mercy, in that context, means an attention to the special circumstances of that case which distinguishes it from other cases in that mandatory category. It is necessary to look at whether there is genuine contrition, whether the crime was done professionally for profit, and whether there are mitigating circumstances that move to leniency. Those three urges to look at the evidence are a vital counterbalance to the mandatory sentence.
Juries regularly undervalued stolen goods in order to avoid a conviction of felony. In some cases, they reached special verdicts, which, until you look at the circumstances, are quite surprising. On one occasion, a man came home from work and found someone else in the act of raping his wife. He banged the man on the back of the head, which was the only accessible portion of that gentleman, and the man died. The jury reached a verdict that John Lellowe did it, the evidence having shown the presence of no such person anywhere near the scene. If we must have a mandatory sentence, we must have mercy, and the jury is its appropriate agent.
As the noble and learned Lord, Lord Bingham of Cornhill, said at the Second Reading of the Crime (Sentences) Bill in 1996, if you attempt to exclude discretion in one place, it bursts out in another. What better vehicle for discretion than the jury, which has studied all the facts of the case, unlike anybody who has merely read the transcript? The noble and learned Lord would do well to read some of the work of 17th century criminal historians, which is of very high quality.