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Report (2nd Day)

Coroners and Justice Bill – in the House of Lords at 3:07 pm on 26th October 2009.

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Amendment 37

Moved by Lord Redesdale

37: After Clause 27, insert the following new Clause—

"Amendment of Treasure Act 1996

After section 8 of the Treasure Act 1996 (c. 24) (duty of finder to notify coroner) insert—

"8A Duty to notify coroner of acquisition of certain objects

(1) A person who—

(a) acquires property in an object, and

(b) believes or has reasonable grounds for believing—

(i) that the object is treasure, and

(ii) that notification in respect of the object has not been given under section 8(1) of this subsection,

must notify the Coroner for Treasure before the end of the notice period.

(2) The notice period is fourteen days beginning with—

(a) the day after he acquires property in the object; or

(b) if later, the day on which he first believes or has reason to believe—

(i) that the object is treasure; and

(ii) that notification in respect of the object has not been given under section 8(1) or subsection (1) of this section.

(3) Any person who fails to comply with subsection (1) is guilty of an offence if—

(a) notification in respect of the object has not been given under section 8(1) or subsection (1) of this section; and

(b) there has been no investigation in relation to the object.

(4) Any person guilty of an offence under this section is liable on summary conviction to—

(a) imprisonment for a term not exceeding the relevant maximum;

(b) a fine or an amount not exceeding level 5 on the standard scale; or

(c) both.

(5) In proceedings for an offence under this section, it is a defence for the defendant to show he had, and has continued to have, a reasonable excuse for failing to notify the Coroner for Treasure.

(6) If the office of Coroner for Treasure is vacant, notification under subsection (1) must be given to the Chief Coroner.

(7) In determining for the purposes of this section whether a person has acquired property in an object, section 4 is to be disregarded.

(8) In this section "investigation" means an investigation under section (Investigations concerning treasure) of the Coroners and Justice Act 2009.""

Photo of Lord Redesdale Lord Redesdale Liberal Democrat 3:08 pm, 26th October 2009

I shall confine my remarks to Amendments 37, 52 and 53. I believe that the noble Lord, Lord Renfrew, will speak to Amendment 69 in this group, so rather than steal his thunder I shall say only that I support the amendment.

The amendments that we propose deal with a major problem that has existed for a considerable period for archaeologists and others dealing with cultural objects. The Treasure Act 1996 was meant to sort out many of these difficulties, but it is still the case that objects that we believe to have been illegally excavated are available in the market or are being sold without proper provenance. Of course, the real value of these objects is knowing where they came from in the first place; it is not the beauty of these objects or the fact that they are artworks, although some are extremely beautiful and have value—they are often displayed as works of art in salesrooms and shops. What gives them their real value is their provenance; what matters is where they come from and what they can tell us about archaeological sites.

There is a real issue in this country about nighthawking. I say for those who do not know that this is the practice of going out at night with metal detectors in order to dig up objects from sites where there is no legal justification for doing so. A particularly good paper on the subject has recently been produced by English Heritage. Indeed, some of our historic monuments have been defiled by people digging up coins or metal objects for their monetary value, which completely destroys the historical value of the site.

Amendment 37 seeks to deal with this problem. When I brought forward the Dealing in Cultural Objects (Offences) Act—it started as a Private Member's Bill in another place—its purpose was to deal with the flood of objects coming in from Mesopotamia and the illegal excavations that took place after the Iraq war. We have the same problem in this country and in Europe, with a large number of objects being taken from the ground. Other countries within Europe have dealt with this issue and I hope that the Minister will have some positive words to say about how it is being dealt with here.

In the consultation on the amendment, there was some difficulty over human rights. However, there is a real issue about the human rights of those people who buy or find themselves in possession of objects that turn out to have no provenance and are therefore of questionable value. There is also cultural significance in the fact that the human rights of everyone in the country are being lowered by the destruction of our historical heritage.

There is a great deal of benefit in the amendment. I shall not go into it in great detail, but I am particularly concerned about one area. While we are concentrating on those people selling objects, there is a real issue about the internet creating a new marketplace. Objects are being dug up, put on display and sold to those interested not only in a local shop down the road but in a global market. This is causing real problems.

Amendments 52 and 53 are important, because a slight problem has been caused by the helpful changes to the Bill. There is an issue about how the legislation has been drawn up to create a duty to inform the coroner. Many people who do metal detecting take their objects to finds liaison officers. I commend the Government's work in establishing and supporting the Portable Antiquities Scheme based at the British Museum. Any noble Lord wishing to study the value of this scheme should read the fine Treasure reports, the next one of which is just about to be launched. However, if a metal detectorist takes advice on an object from the portable antiquities officer and the portable antiquities officer forgets for some reason—often they are overworked—to declare this to the coroner, the finder of the object becomes liable under the legislation, not the finds liaison officer, and could find themselves in difficulty.

This kind of issue may never come to light. However, as we have found, some objects may have a particular value not only in their metal content but in their historical value and cultural interest. If such an object was later found to be of great value, a dispute could be brought before the coroner and the offence spotted. Of course, it is not only the metal detectorists who have a fiscal interest in the object found; the landowner also does. I hope that the Government will agree that this small amendment could solve a potentially unfortunate consequence of good legislation. I beg to move.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour 3:15 pm, 26th October 2009

My Lords, I am grateful to the noble Lord, Lord Redesdale, for tabling the amendments, to which I have added my name. I am also grateful to the Government for the progress that we have so far been able to make in strengthening the provisions of the Bill that relate to treasure: agreeing after all that there should be a coroner for treasure; allowing time beyond six months for prosecutions for non-reporting of treasure; and giving the coroner power to require finders actually to deliver treasure. I am grateful also to Ministers for meeting some of us not just once but twice.

In Committee, the Government did not accept that the duty to report a find of treasure should be widened to anyone who comes into possession of it and has reason to believe that it has not previously been reported. This is an important matter, which is why we have tabled it again as Amendment 37. It was in the Government's own draft Bill in 2006.

As I understand it, the Government's reservations are twofold. They have explained that they are worried about the impracticality of monitoring and enforcing such a duty. In Committee, we attempted to explain why we thought that those fears were misplaced. As to human rights, we should certainly ensure that the amendment does not offend the ECHR, but I believe that it does not. We had a searching discussion about this issue at our meeting and our reasons for thinking that it does not offend the ECHR were set out in greater detail in subsequent correspondence. I would now add only the observation that the Treasure Valuation Committee has flexibility in allocating reward money so that up to 100 per cent of it could in principle be provided to somebody who came into possession of treasure and reported it. These matters should be considered case by case, with no preconceptions. On that basis, I think that we can satisfy the human rights requirement.

I shall not repeat what I said in Committee about the worrying indications of abuse that the British Museum's monitoring of the eBay website has brought to light, but I shall just highlight one finding of the British Museum survey. In 26 per cent of cases, the vendor stated that he had no knowledge of where the object was found, from which it is obvious that there are vendors who are buying items that may be treasure without performing due diligence. My noble friend acknowledged in Committee that there was an "undoubted problem". He suggested that education and persuasion were the way forward, but I have to say that there are people for whom education and persuasion simply will not work. Amendment 37 is therefore important in requiring best practice and ensuring that the trade is more transparent.

The case of the Staffordshire hoard shows the intense public interest in archaeology. Let us suppose for a moment that the person who found the Staffordshire hoard, that metal detectorist, had not been scrupulous—he was indeed perfectly scrupulous and followed to the letter all the procedures set down under the Portable Antiquities Scheme—or let us suppose that the whereabouts of the site had been prematurely leaked, as all but happened with the BBC. We can imagine that people might have been feeding these important and precious objects through to dealers who were not going to ask any awkward questions in exchange for ready cash. The Treasure Act provides no protection against this. If either of those eventualities had occurred, there would have been enormous public outrage. I cannot believe that my noble friend the Minister wishes to leave important archaeological finds at risk in this way.

With the law as it is, we can at best say that the duties on third parties—people who buy, inherit or are given antiquities—are unclear, but we know for sure that, with the vagueness and the weakness of the existing legislation, landowners are being defrauded and important objects are being lost to museums.

How did it come about that important antiquities looted from the national museum in Afghanistan were dispatched to London? In 2004, customs officers intercepted hundreds of them, fortunately and to their great credit. I do not think that there can be any doubt that they were on their way to dealers in this country. London has the second biggest market in antiquities in the world, estimated to account for some 30 per cent of global turnover. The Government have a major responsibility in this field. The market in antiquities in this country needs policing, but if it is to be effectively policed there must be a watertight legal regime.

I cite one piece of unacceptable practice in the London antiquities market. In 2006, Bonhams, the auctioneers, chose to display a number of artefacts from the Sevso hoard of Roman silver and invited many people to come and see them. These objects had entered the market without any proof of their legal origin, no direct evidence of the circumstances in which they had been excavated and no details disclosed about dealings in them in the period following their discovery. There was no secure history of their ownership and no proper provenance for them. Ethically, they should not have been in the market. It was incontrovertible that they had been illegally removed from their place of origin; no country would have authorised their excavation unsupervised, their export for commercial gain or their exposure to the market, as occurred. In its invitation, Bonhams asserted that these pieces of silver were,

"suitable for exhibition in the world's greatest museums".

To acquire or exhibit items from the Sevso treasure would have been to violate all the responsibilities that a museum properly has. Bonhams was cocking a snook at the British Government and all their efforts to suppress the illicit trade. How long are the Government prepared to tolerate this kind of behaviour?

These instances and the statistics produced by the British Museum exposing cavalier attitudes, or worse, within the trade show the need for Amendment 37 and for a new offence of dealing in undocumented archaeological objects that would be created by Amendments 68 to 73. The Government have a responsibility to clean up this scene and it is urgent that they should do so. My noble friend may say to the House that we should await their review of the Dealing in Cultural Objects (Offences) Act. However, that review was promised as long ago as 2006 and we still have not had it. Perhaps my noble friend will be able to tell us this afternoon when the fruits of that review will be made available. Meanwhile, this Bill and the amendments that we have proposed provide the ideal opportunity to deal with some of the starker needs.

Finally, Amendments 52 and 53 to Clause 39, as the noble Lord, Lord Redesdale, explained, would correct an omission in the Treasure Act. The Act requires finders of treasure to notify the coroner directly. In practice, 97 per cent of finders report their finds to one of the finds liaison officers employed under the Portable Antiquities Scheme. That was what took place in the case of the Staffordshire hoard and that practice is in accordance with the Treasure Act code of practice. The problem is that the Government's code of practice is inconsistent with the law. Amendments 52 and 53 would regularise current practice, which works well and is entirely acceptable in itself, empowering the coroner for treasure to designate suitable persons to receive reports of finds of treasure. In that way, finders would be assured that they had fulfilled their legal responsibilities. I emphasise to my noble friend that there is real concern among the archaeological community and the metal detectorists about this anomaly in the law.

The requirement that the coroner for treasure should consult the British Museum in these amendments is consistent with the practice created by the Treasure Act, which appoints the British Museum in Section 9 to specific responsibilities. If my noble friend says that new regulations under the existing Treasure Act would solve the problem, I must respectfully disagree. The problem resides in the drafting of the Treasure Act itself; it is the primary legislation that needs to be amended.

If these amendments were passed, they would not bind the Government to maintain all the existing arrangements of the Portable Antiquities Scheme, although I hope that the scheme's success has been so well proved by now that neither this nor any future Government would wish to unravel it. The amendments would also ensure that the coroner for treasure was not burdened with an excessive workload, which was an anxiety that Ministers expressed at earlier stages of this legislation. There are no public expenditure implications in these amendments. I hope that the Government will be able to accept them.

If my noble friend finds that he is unable today to commit himself to accept all these amendments, because the Government have not completed their own internal discussions, I hope that he will tell the House that we will return to these matters at Third Reading.

Photo of Lord Renfrew of Kaimsthorn Lord Renfrew of Kaimsthorn Conservative

My Lords, I support the amendment tabled by the noble Lords, Lord Redesdale and Lord Howarth of Newport. The Minister will recall that at an earlier stage of the Bill, I paid tribute to the effective activities that the Government have undertaken in trying to restrict the market in illicit antiquities. It is all the more sad, therefore, that a glaring loophole has emerged in the working of the legislation relating to treasure, which Amendment 37 seeks to close, as the noble Lord, Lord Redesdale, described.

It has become clear that many finds of treasure are still going unreported. Why is that? At present, only the actual finder has a legal obligation to report the discovery of treasure. It is quite clear that dealers are, in some cases, selling new archaeological finds without undertaking due diligence to ensure that they have been through the treasure process. There is no legally enforceable obligation at present on them to do so. Monitoring of eBay sales confirms that that is so. There is a major trade in unreported treasure. I will not speak at length about this because it has been well covered by the noble Lords, Lord Redesdale and Lord Howarth of Newport, but this is a necessary amendment to ensure that the Treasure Act works well in practice

The noble Lord, Lord Howarth of Newport, has dealt with Amendments 52 and 53, so I will proceed at once to Amendment 68. This introduces a broader group of amendments with the same purpose of reducing the trade in looted antiquities—illegally excavated antiquities—with the ultimate end of preventing or reducing the looting process. It is not restricted to finds made in the United Kingdom: the looting of archaeological sites for gain continues all over the world.

London is still a clearing-house for looted antiquities. Some auction houses continue to offer goods for sale without any indication of provenance and without any secure documentation. We thought that that might stop with the passage of the Dealing in Cultural Objects (Offences) Act in 2003, but can the Minister confirm that there has so far been not a single prosecution under that Act? Amendment 68 requires that a person dealing in an archaeological object should produce evidence to show that the object has not been unlawfully excavated. That places a duty on the vendor of knowing and stating the recent history of the antiquity. It will no longer be sufficient to say that it fell off the back of a lorry or was found in the vendor's attic.

Time is short, so I will omit my observations on the example of the Sevso treasure because that has been well covered by the noble Lord, Lord Howarth, and I agree with everything that he said. The second case to which I shall refer is as scandalous but less well known in view of intimations of libel action by the lawyers of Mr Martin Schøyen, a Norwegian shipowner. He purchased a major series of 654 Aramaic incantation bowls that had been imported into this country in the 1990s in dubious circumstances and lent them for study to a London university. When the university realised that they might be looted antiquities, it rightly set up a committee of inquiry on which I had the honour of sitting under the chairmanship of the distinguished lawyer, Mr David Freeman. We determined that they had indeed been looted from Iraq, or more precisely concluded,

"on the balance of probabilities that the bowls were removed from Iraq, and that their removal took place after 6th August 1990", and was therefore illegal. We recommended,

"the return of the incantation bowls to the Department of Antiquities of the State of Iraq".

A copy of that report is in the Library of the House.

Despite that, I am sorry to say that the bowls were not returned to Iraq: they were returned to the custody of Mr Martin Schøyen. Under the new clause proposed in Amendments 70 and 68, lending and borrowing would both be dealing in terms of the Bill. It would be an offence to deal in undocumented archaeological objects in such a way—and so it should be: it is scandalous that the heritage of Iraq has been treated in this way.

My final case is simple and I shall be brief. On 15 October this year, Bonhams the auctioneers withdrew from its London antiquities sale at the request of the Italian Government some 10 antiquities, among them items formerly owned by the now sadly notorious dealer Mr Robin Symes. I understand that the Italian authorities had already made representations to the Home Office about several warehouses in London containing antiquities formerly in his ownership—many of them, it is alleged, illegally excavated in Italy.

What is an auctioneer in this country doing, selling antiquities without a documented provenance? It is scandalous that this practice continues, and to put an end to it is one purpose of this amendment. There are serious matters here, which demand government attention. I shall be very interested to hear what the Minister has to say.

Photo of Baroness Trumpington Baroness Trumpington Conservative 3:30 pm, 26th October 2009

My Lords, some people may believe in ghosts and others may not. You might be forgiven for thinking that the ghost of the late Lord Perth is wandering around the Chamber this very afternoon, because the Act of which this amendment is part was entirely due to his efforts. I was lucky enough three times to take a Private Member's Bill for treasure trove through this House and eventually—by rather foul means—managed to get the Government to introduce a government Bill. It is very interesting that this is the first time that an amendment to that Act has been moved, and I have great pleasure in supporting it. I can think of nothing which causes worse relations than what one might call stolen treasure trove.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

My Lords, I wholeheartedly approve of the thrust of these amendments. It is surely entirely laudable and proper that recognition should be given to the immense public interest that is involved in all these matters. We are dealing with something that is part of the community's most essential heritage.

I rise with some apology to make a very narrow legal point. The opening words of Amendment 37 are:

"A person who— acquires property in an object".

It is the word "property" that I quarrel with. It suggests to me, as a retired lawyer, the question of ownership or some other identifiable estate in that object. The question of property is surely, ultimately, a matter of title. That, of course, is something that might have to be decided at a later stage, so it would be premature to refer to it as acquiring property at that point in time. The noble Lord, Lord Howarth, referred once to property and three times to possession. I think that what is dealt with here is possession. If I am wrong, I apologise. It may be that a form of words dealing with both possession and the acquisition of an interest that is something short of property would be more appropriate.

Photo of Lord Henley Lord Henley Shadow Minister, Justice

My Lords, my noble friend Lady Trumpington was quite right to draw the House's attention to the work of the late Lord Perth in his various attempts to get a Treasure Act on the statute book. I am very glad that she also drew attention to her own activities, which I think she described as having been by fair means or foul—something that she was very good at in ensuring that the Treasure Act got on to the statute book back in 1996.

The noble Lords, Lord Redesdale and Lord Howarth, and my noble friend Lord Renfrew have set out their arguments comprehensively. The Government have already introduced in Committee some amendments concerning treasure, which were, I think, welcomed by the Archaeological All-Party Group, of which I think all three noble Lords are members. The current amendments, as I understand them, deal with metal detecting—not something with which I am familiar, but I appreciate the problems that are raised by the secondary market in found items in particular. The amendments seek to remedy these by placing a duty to report treasure on those in possession of objects as well as those who find them. On the subject of possession, we should all note what was said by the noble Lord, Lord Elystan-Morgan. I am sure that the Minister will comment on that small legal point and tell us whether the amendment should be further altered at Third Reading, to place a duty to report treasure on those in possession of objects as well as those who find them.

We on these Benches are sympathetic to the arguments put forward. However, we would like to hear from the Minister. In Committee, he suggested that the Coroner for Treasure will have the power to issue a notice requiring a person to produce an object to him for inspection, examination or testing. We would like the Minister to expand on that, so that we may consider whether the power is necessary to meet the concerns of the noble Lords who tabled the amendment, who may then consider whether they want to pursue it at this stage or come back to it later.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, the House is well served by Members who are in the Archaeological All-Party Group. They serve an important purpose both outside and inside the House, and I am grateful to all of them for having spoken in the debate today. The amendments address concerns about the small minority of unscrupulous people who seek to gain from dealing in objects of cultural value. We accept that there are problems with the investigation and prosecution of these individuals. I hope that noble Lords will accept our assurance that the Government are committed to reviewing the situation.

Amendment 37 would impose a duty on acquirers of objects that they believe to be treasure to report the object to the Coroner for Treasure. There are issues around making this duty both workable and compatible with the European Convention on Human Rights. However, we believe that the issues are not insurmountable. The "narrow legal point"—to use his own phrase—raised by the noble Lord, Lord Elystan-Morgan, from the Cross-Benches, will also be taken into consideration in what I say later about what we will do with Amendment 37.

Amendments 52 and 53 seek to extend the matters to be addressed by treasure regulations made under Clause 39. As we have heard, there is concern that people following the Treasure Act code of practice would report their find to a finds liaison officer, in contravention of the reporting duty in the Treasure Act itself. We have looked at the current version of the code of practice and can see that it is possible that finders would be confused about where they should report finds. The delivery of objects thought to be treasure will be covered by the power to issue a notice under paragraph 1 of Schedule 5 to the Bill. The current review of the Treasure Act code of practice will assist in clarifying both these points.

After extremely helpful meetings with the noble Lords, Lord Renfrew and Lord Redesdale, and with my noble friend Lord Howarth of Newport, I am looking at the issues again as a matter of urgency. Noble Lords will understand that I can make no promises: I may or may not be able to offer movement on the matter. However, if noble Lords will agree today to withdraw Amendments 37, 52 and 53, we will explore what might be possible at Third Reading. I will let them know what stage we have reached in good time before Third Reading, in case they choose to take certain actions as a result of what I say.

I cannot be as helpful with Amendments 68 to 73, which would introduce a new criminal offence of dealing in undocumented archaeological objects. The new offence would add to the existing offence of dishonestly dealing in a cultural object that is tainted. That offence was introduced in the Dealing in Cultural Objects (Offences) Act 2003. The introduction of the Act showed our commitment to address the problem by facilitating the prosecution of people who trade in objects looted or stolen from buildings and excavations both here and abroad, and its provisions have an important deterrent effect. There may well have been no cases at this stage, but we believe that it has had a deterrent effect and has raised awareness of the importance of the need to make appropriate checks when acquiring items of cultural importance.

I know that the noble Lords to whom I have referred support the provisions of the 2003 Act as the national heritage of many countries is at stake. Our reluctance to accept these amendments is that we are always wary of introducing yet another new criminal offence unless there is a proven need to do so. The proposed new offences would extend to objects which have been excavated in countries other than England and Wales, which is outside the scope of the treasure system.

In addition, the duty under the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 is met in the United Kingdom by the offence under the 2003 Act, to which I have already referred, as well as the offence of handling stolen goods under the Theft Act 1968. Many professional associations now have codes of practice to which their members agree as a way of demonstrating their commitment to acting fairly, ethically and honestly. As we have heard, the Department for Culture, Media and Sport will review the operation and effectiveness of the 2003 Act. I am afraid that I cannot give a precise date, but the review will take place as soon as resources permit following consultation on the treasure code of practice, which will take place next year.

To be fair, noble Lords involved in this debate have already recognised that the provisions in the Bill dealing with treasure are a significant advance. I hope that they will be happy not to press these amendments on the understanding that, as far as we can, we will return to this matter at Third Reading, particularly to Amendments 37 and 57.

Photo of Lord Henley Lord Henley Shadow Minister, Justice

I have an important question about timing. It has been put to me that the usual channels are concerned that we will not finish Report stage on Wednesday and might have to continue until Thursday. That being the case, it is possible that Third Reading will also be a day later. I therefore hope that the Minister will accept that there will be an extra day for the Government to consider these matters before they have to make up their mind. Timing gets very tight between Report and Third Reading and they will have to make up their mind on what to do.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I am grateful to the noble Lord, but we hope, as I am sure does he, that Report stage will finish this Wednesday, so that Third Reading can without more ado take place on the day already in the green paper. I take his point. However, if there is no date for Third Reading, it is proposed that it should be as soon as possible under Standing Orders after Report. We are conscious that Thursday is a possibility, but it is not one that we would want to take up.

We hope that noble Lords will feel able not to press their amendments on the understanding that we will return to this matter at Third Reading, when I hope that I may have welcome news for them.

Photo of Lord Redesdale Lord Redesdale Liberal Democrat

My Lords, I thank the Minister for his help at this stage and in our consultations to look at this matter. Obviously, on the undertaking that he has given, we will wait for his reaction at the next stage. The point made by the noble Lord, Lord Henley, that we might have to marshal our forces on a Thursday if we do not get the result we want is one to take into consideration. However, seeing the noble Baroness, Lady Trumpington, looking quite so forceful, I do not think that that will be as difficult a job as one would imagine.

During the debate, the noble Lord, Lord Elystan-Morgan, raised the issue of ownership and property. Perhaps I could ask the noble Lord, Lord Renfrew, to give him a five-hour dissertation on this very vexed issue; and he might regret raising his small legal point.

The reason we believe that this is so important is in the test that I would have for anybody who says that this is a minor point. The test would be—I open this up to anybody—to find the telephone number of the legal adviser to eBay between now and Third Reading. If your Lordships can achieve that small task, I shall obviously take it on board that this issue is irrelevant. However, if your Lordships cannot, then I expect those noble Lords to be with us in the Division Lobby if this is rejected. However, on that basis, I beg leave to withdraw the amendment.

Amendment 37 withdrawn.

Schedule 5 : Offences

Amendment 38

Moved by Baroness Butler-Sloss

38: Schedule 5, page 132, line 35, leave out from "Part" to end of line 40 and insert "may authorise a police officer or any other specified person to enter and search any land specified in the authorisation and shall record such authorisation in writing"

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench 3:45 pm, 26th October 2009

My Lords, Amendments 38 to 40, to which I speak, are new amendments, as is Amendment 50, which is consequential upon the earlier amendments. The Coroners' Society is extremely concerned at the likely loss of the power to search and seize relevant material at an early stage, when the coroner's officer has gone to the scene of a death. It is generally the duty of the coroner's officer to remove the body. At that time, he is likely to look at what is around it and ring the coroner—sometimes in the middle of the night—to ask, "Should I remove this material?". He can get an immediate okay on that.

It is fair to say that there is some doubt over whether coroners actually have that power under common law; the fact is that they have used it. The effect of paragraph 3 of Schedule 5 is to take away from individual senior coroners the right to instruct the coroner's officer, or the police, to seize material that is neither needed for health and safety regulations, nor needed for a potential crime. That is because such a removal of relevant material will require the written consent of the Chief Coroner. One only has to think of when, in the middle of the night, someone rings up the police or the ambulance, who always rings the coroner's officer, who arrives to find a dead body. The police say, "We think that this is a suicide, and we have no power to remove any material"—because under the Police and Criminal Evidence Act they are able to move nothing that is not needed for a crime. It may not be a situation in relation to health and safety.

I am told by coroners that there are various occasions on which they would need to remove material. The Government have serious reservations about these amendments and think that they are not necessary because they would be seldom needed and can be met either by the police or by health and safety officers. That is not the view of the coroners, who are the people on the ground who require the material to be able to deal appropriately with the inquest.

Briefly, because I do not want to waste time, I shall go through some occasions when the coroners would want to do this and where no crime was likely to have occurred. They include, for instance, a suicide note, which the widow may not wish them to take away; in the absence of consent under Schedule 5, they would be unable to do so. They might wish to remove a rope or other ligature, in order that tests could be done to see whether the marks on the neck meet its shape. Again, if it is an obvious suicide the police would not remove the ligature or take away the suicide note. These are actual events that have occurred.

There may also be mobile phones showing text suicide notes, where there is some doubt; computers, with emails and visits to relevant websites; correspondence, where there may be threatening letters from financial institutions, or personal correspondence showing a state of mind, or bank statements showing considerable indebtedness and the possibility that that is why the person has taken his or her life. There may also be utility bills showing that the gas is about to be cut off. If the gas is about to be cut off, that is not a matter for the police or for health and safety regulations, but it is highly relevant to the inquest.

There are two other examples, one of which is medication prescribed for the deceased. It is often useful for the coroner if the tablets that are left are counted and a comparison made with the dispensing date. Lastly, where the deceased was using an air tank, the air tank of a companion in a diving accident can be checked to see whether the nature of the contents is relevant, as both may have been filled with the wrong air mixture. These are not necessarily matters where other organisations will have the power to remove the relevant material. It is hardly likely that the Chief Coroner will be telephoned in the middle of the night, and the need to get the written consent of the Chief Coroner or one of his deputies may lead to valuable evidence being lost.

Coroners say that they need such evidence and they are very concerned that it will be lost. They are judicial officers but under the Bill they would not have the powers of a lay magistrate, who can issue a warrant. However, coroners are unable to do so, and such a power is required to be in primary legislation. If I may respectfully say so, it seems that the Government underappreciate a real need that coroners have, and I ask the Minister to think again about the points that I have made. I beg to move.

Photo of Lord Henley Lord Henley Shadow Minister, Justice

My Lords, I rise to comment briefly on the amendment and to say how grateful we all are to the noble and learned Baroness, Lady Butler-Sloss, for introducing it. This point was not discussed at any previous stage of the Bill either here or in another place, and she highlights a real concern on which we would very much welcome hearing the Government's views. Certainly, we will make up our minds on this matter once we have heard what the Government have to say about it.

However, I ask the noble Lord to confirm that there have been a number of cases where what was first thought to be suicide was some time later alleged to be murder. In the time between such a case being thought to be suicide and someone later thinking that it was a murder, some vital evidence was either lost or destroyed. That made it far harder to proceed with the investigation into what became a murder inquiry and, in some cases, may have led to a conviction but without all the appropriate evidence necessarily being available. Therefore, we want to hear what the Government think about this and, as I said, we are grateful to the noble and learned Baroness for raising it, although it is a pity that this has come up so late in the Bill.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

My Lords, I respectfully suggest to the House that the case put forward by the noble and learned Baroness is wholly unanswerable. I am not at all sure, and certainly do not pretend to have the background knowledge to know, whether all residual powers under common law have disappeared in this case. It seems to me that they have and that therefore the powers that exist are those specifically spelt out in statute. If I am wrong, nothing is lost. It means that the status quo is still there and that, by double-banking it with the adoption of the amendment, nothing at all will be lost. However, I have a substantial suspicion that those common-law powers have gone and that the system will now be extremely cumbersome and self-defeating so far as concerns its object.

The object of a coroner's hearing is to determine cause of death. That is the basic question under common law as it was and as it is now under statute. Therefore, it is axiomatic that any piece of evidence, particularly physical evidence, that fails to be preserved when it could have been defeats the very objective of the hearing. In many cases, as indeed the noble and learned Baroness has pointed out, it would be purely by accident that such evidence is overlooked. Once it has disappeared, there is no way in which it can be recovered. In other cases, there may be bad faith when persons who have an interest in the ultimate finding of a coroners' court would be motivated to remove certain objects.

The system under statute is cumbersome and self-defeating, while the defective system under common law that still operates works. One is not asking police officers to be given wide powers, although magistrates' powers, to which the noble and learned Baroness, referred, in parallel circumstances are certainly comparable. We are asking for a power to be exercised under the imprimatur, as it were, of a senior coroner. I cannot see that that in any way infringes any principle, whereas if the amendment were not carried, it would place at risk the whole validity of an examination.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

One does not want to increase the number of persons who can authorise entry, search and seizure, but the noble and learned Baroness has made a strong case that the coroner should be able to do so in certain cases—probably a limited number—without having to go to the senior coroner for written authorisation. I therefore support the amendment.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I understand that with this group of amendments, which I am grateful to the noble and learned Baroness for moving, she is aiming to ensure that coroners have the powers of search, entry and seizure that they need to obtain evidence. We wholeheartedly endorse that sentiment, as it is vital that no important evidence is lost. I shall attempt to do my best to assure her that the Bill's provisions are adequate for their intended purpose.

The noble and learned Baroness is concerned that when the Bill comes into effect the police may for some reason stop removing evidence from the scene of death as they may conclude that items, such as suicide notes or drug paraphernalia, cannot be removed without either the owner's consent or authorisation from the Chief Coroner. She is concerned that this may lead to evidence being lost or destroyed. Her amendments therefore explicitly give coroners powers to authorise a police officer, or any other specified person, to enter and search land and seize anything or inspect and take copies of documents. They remove the requirement for the Chief Coroner or a nominated senior coroner to authorise every use of these powers. Amendment 50 makes the decision to authorise such entry and search appealable to the Chief Coroner.

We have a number of concerns, which I shall mention shortly, but I take this opportunity of offering a meeting before Third Reading—which will have to take place this week, and there is no reason why it should not—with the Coroners' Society of England and Wales, myself and my officials and, I hope, the noble and learned Baroness, to see whether we can come to some kind of accommodation on these matters. At present, I am bound to oppose the amendment, which I do not want to do unless it is absolutely necessary. It is better to come to some kind of agreement, although I make no promises. It seems as if our Third Reading debate may be almost as long as Report at this rate. These are serious issues; they must be if the Coroners' Society has concerns, and we want to resolve them peaceably rather than walking though the Division Lobbies.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

I am grateful to the Minister for the olive branch, even if it is eventually cut off the tree.

First, I take the point made by the noble Lord, Lord Henley. I am extremely sorry that the amendments came so late—they did not come from me. The Coroners' Society realised that this was a lacuna in the other points that it has been making. I am very grateful to those who have supported me on these amendments. With the view that the Minister is prepared to talk to officers of the Coroners' Society, I beg leave to withdraw the amendment.

Amendment 38 withdrawn.

Amendments 39 and 40 not moved.

Amendment 41

Moved by Lord Bach

41: Schedule 5, page 134, line 15, leave out "(criminal conduct)" and insert "(or section 70 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18), section 70 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or section 42 of the Naval Discipline Act 1957 (c. 53))"

Amendment 41 agreed.

Amendment 42

Moved by Lord Bach

42: Schedule 5, page 134, line 27, leave out first "may" and insert "must"

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 4:00 pm, 26th October 2009

My Lords, I shall speak also to Amendments 46 and 48 in the name of the noble Lord, Lord Ramsbotham.

Paragraph 6 of Schedule 5 heightens the profile of coroners' reports to prevent future deaths, by putting the existing provision, which is currently contained in coroners rules, into primary legislation. These reports by coroners aim to improve public health and safety by identifying and publicising action which the coroner considers should be taken to prevent future deaths.

As currently drafted, the Bill stipulates that the coroner "may" make such a report if he or she is of the opinion that action should be taken to prevent the occurrence or continuation of circumstances creating a risk of other deaths occurring in the future, or eliminating or reducing the risk of death created by such circumstances.

In Committee, the late Lord Kingsland contended that it was not sufficient to confer a power on the coroner to issue a report where he or she had formed such an opinion and that in such situations the coroner ought to be under a duty to make a report. Our initial concern was that requiring a coroner to issue a report in certain circumstances could, perhaps, fetter the coroner's judicial discretion. However, having considered this matter carefully, we agree that if the coroner has formed such an opinion, we can fully understand that he or she should then have a duty to make a report. Accordingly, our Amendment 42 replaces the discretionary "may" with the obligatory "must". I believe that that is what Lord Kingsland was seeking when he raised this matter in Committee and we adopt his suggestion. I commend the amendment to the House and I beg to move. I shall respond to the amendment that I hope will be spoken to by the noble Lord, Lord Ramsbotham.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I am extremely grateful to the Minister for his comments and in particular for replacing "may" with "must". I discussed the matter with the late Lord Kingsland and am aware of a frequently expressed concern. It is that in relation to Schedule 2 deaths, particularly those in custody, it takes some time to have an inquest. That frequently means that afterwards, when lessons learnt are discussed, it is alleged that during that passage of time the Prison Service may have introduced changes and that there is therefore no point in referring to a matter that took place, say, four years ago. Frequently, that is proved to be wrong because it is not always the case that the Prison Service has done what it says, or has imposed what it says ought to be in place.

It would therefore seem incumbent on a coroner, irrespective of what the Prison Service might have done, to make his report and recommendations based on the incident itself because it is the incident which will be picked up by senior coroners, the Chief Coroner and ultimately in the reports made to the Lord Chancellor.

Clause 32 states:

"The Lord Chancellor must publish each report given under this section and must lay a copy of it before each House of Parliament", which is where Amendment 48 comes in, because I would like added to that the words,

"and take any action he or she considers appropriate in response to the report".

It may well be that in the body of the reports coming from senior coroners and the Chief Coroner are lessons learnt which should be imposed on the Prison Service, on the Police Service, on the Armed Forces or on special hospitals, through their various Secretaries of State. Therefore, the amendment is intended to refine the proposal in the Bill, rather than to propose anything new. The analysis referred to in Amendment 46 is, as I said, very much based on what we hope that coroners will report, so that all the lessons are learnt and there can be a general improvement in the systems which are subject to investigation. I therefore commend the amendment.

D

Please extend my thanks for the use of positive language and the change from "may" to "must" will have a huge impact on how lessons are learnt. Shouldn't we be looking at changing all policy to must in so far as is reasonable to expect?

It appears guidance and guidelines are often left for 'consideration' and therfore often fail to get implemented too.

Submitted by Dee Speers

Photo of Lord Alderdice Lord Alderdice Liberal Democrat

My Lords, I simply give some support, because Amendments 46 and 48 are in my name and that of my noble friend Lord Thomas of Gresford as well as in that of the noble Lord, Lord Ramsbotham. One of the really important roles of the coronial service is investigating and inquiring into not just particular deaths and how they occurred but how we can prevent such things happening in future. A coroner may produce a verdict and assume that it is so blindingly obvious that he does not need to take the matter further, but there is an incumbent duty on him to carry that forward and report it to those who can do something about it. Therefore, we are extremely grateful to the Minister for tabling his amendment and placing it under the section on the prevention of other deaths. We regard that as extremely helpful.

Photo of Lord Henley Lord Henley Shadow Minister, Justice

My Lords, I briefly intervene to say on behalf of my late noble friend Lord Kingsland that we, too, are very grateful for the concession from the Government. As my late noble friend pointed out in Committee, one of the primary benefits of the coronial system is its capacity to learn from mistakes. Therefore, it seems to us correct that if the coroner feels that someone is in a position to make changes which might prevent another death and has powers to do so, it ought to be incumbent on the coroner to act on that opinion. That is a simple change to make to the Bill, but one that we feel will have important consequences.

The other two amendments in the names of the noble Lords, Lord Ramsbotham and Lord Alderdice, add sensible further actions that ought to be included in the Chief Coroner's report. "An analysis of findings", as included in Amendment 46, will help to inform the Lord Chancellor of what has been going on in the coronial system during the year. On the basis that information, transparency and improvements to the service are all linked, we certainly support the amendment.

Amendment 48 also has our support. The Bill directs the Lord Chancellor to publish reports and lay them before Parliament. That should not be the extent of his obligations. If there is action which the Lord Chancellor should take, he ought not to sit on his hands. We trust that the Minister will agree to those reasonable and not particularly onerous suggestions, and we offer our support to both those amendments.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I am grateful to both noble Lords who have spoken. Under Clause 32(4)(b), the Chief Coroner's annual report to the Lord Chancellor must contain a summary of coroners' reports to prevent deaths, and responses to them. Amendment 46 would require the Chief Coroner's annual report to contain an analysis of coroners' reports to prevent future deaths and responses to those, as well as an analysis of jury findings.

I said in Committee in response to amendments tabled by other noble Lords, and I now repeat, that we are confident that the amendments are unnecessary. Regarding an analysis of jury findings, that is because the Chief Coroner's report will inevitably contain details of findings in different coroner areas, on all such findings and not just the small minority of inquests—which we discussed the other day—where juries are summoned. This will inevitably be necessary for the Chief Coroner to assess how these are similar or vary across the country.

Regarding an analysis of reports to prevent deaths, Clause 32(4)(b) already provides for the Chief Coroner to summarise the year's reports to prevent deaths and the responses to them when putting together his or her annual report to the Lord Chancellor. I hope that noble Lords are content that in doing so for the annual report and more generally to assess differences in standards between coroners, the Chief Coroner will in any case analyse the raw data he or she receives from coroners.

Amendment 48 requires the Lord Chancellor to take any action he thinks appropriate in response to the Chief Coroner's annual report. I reassure noble Lords that this is also unnecessary because any reasonable Lord Chancellor would do this as a matter of course without being told to do so in legislation. Our tradition of Lord Chancellors leads us to believe that all future Lord Chancellors will be reasonable.

I hope that explanation, together with our Amendment 42, reassures noble Lords that the Bill already addresses their concerns about reports to prevent deaths and the Chief Coroner's annual report. To summarise, we are strengthening reports to prevent future deaths and accountability more generally by: first, putting a greater duty on coroners to issue reports to prevent deaths; secondly, ensuring that the reports are responded to; thirdly, giving the reports prominence in the Chief Coroner's annual report; and, lastly, by providing for the Lord Chancellor to support the Chief Coroner's work by publishing the annual report and raising any concerns he has about how the coroner system is operating. On that basis, I hope that the noble Lord will not move his amendments.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

I thank all noble Lords who have taken part in this short debate and I also thank the Minister. Linked with Amendments 46 and 48 is Amendment 47, which we discussed briefly on day one. My concern about these amendments is based on experience. Ten years ago, I published a report called Suicide is Everyone's Concern looking at the way that the Prison Service was able to prevent suicides in prison. What concerned me was that year on year the same mistakes were made in different prisons all over the country because it appeared that the lessons learnt were not being spread throughout the system. It may be that different coronial areas will have different experiences and therefore different things to report, but hidden in them will be lessons that others can learn, which is the why the word "analysis" seems to be so important in the coroner looking at all the evidence in front of him. I accept that, as the Minister said, there is now "must" and not "may". I will therefore consider what has been said today and on day one.

Amendment 42 agreed.

Schedule 7 : Allowances, fees and expenses

Amendment 43

Moved by Lord Tunnicliffe

43: Schedule 7, page 138, line 43, at end insert—

"( ) A reference in this paragraph to meeting or reimbursing expenses incurred by a person ("P") includes a reference to indemnifying P in respect of—

(a) costs that P reasonably incurs in or in connection with proceedings in respect of things done or omitted in the exercise (or purported exercise) by P of duties under this Part of this Act;

(b) costs that P reasonably incurs in taking steps to dispute claims that might be made in such proceedings;

(c) damages awarded against P, or costs ordered to be paid by P, in such proceedings;

(d) sums payable by P in connection with a reasonable settlement of such proceedings or of claims that might be made in such proceedings."

D

Thank you Lord Ramsbotham for some sanity and if the recommendations from your review "Suicide is Everyone's Concern" (looking at the way that the Prison Service was able to prevent suicides in prison.) had been implemented, as publicly committed to by Rt Hon Jack Straw, then maybe the latest appalling fiasco over moving prisoners because of inspections taking place may have been avaoided. But as with health regulation, the management of trusts and dare I say prisons are often more concerned with where they are in the league tables than what regulatory conditions will be brought to bear. Lessons are rarely learnt because passive regulation is allowing too many to think that nothing is wrong in the way they are dealing with things!

Submitted by Dee Speers

Photo of Lord Tunnicliffe Lord Tunnicliffe Government Whip, Government Whip

Paragraph 9 of Schedule 7 provides for regulations to make provision for or in connection with meeting or reimbursing expenses incurred by senior coroners, area coroners, assistant coroners, the Chief Coroner and his deputies, the Coroner for Treasure and judges and former judges and retired coroners when they conduct an investigation. Paragraphs 5 and 6 of Schedule 8 provide for the Lord Chancellor to pay the Chief Coroner and deputy chief coroners amounts by way of remuneration or allowances and amounts towards expenses incurred by them when performing their functions.

We have always intended these regulations to include provision for indemnifying the incumbents of these roles against costs that they incur when defending any claim brought against them in litigation and against subsequent costs or damages that they are ordered to pay. In Committee, however, the noble Baroness, Lady Finlay, the noble and learned Baroness, Lady Butler-Sloss, and the noble Lords, Lord Alderdice and Lord Thomas, were concerned that the word "expenses" would not include indemnifying these people against costs of damages. I agreed to see whether we could clarify this issue further.

Together, Amendments 43 and 45 make it clear that regulations may include provision indemnifying these people against costs that were reasonably incurred in or in connection with legal proceedings: including costs that the person is ordered to pay, damages awarded against the person, and sums that are payable in connection with a reasonable settlement of such proceedings. I hope that the amendments reassure noble Lords about indemnities, and I ask noble Lords to accept them.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench 4:15 pm, 26th October 2009

My Lords, I thank the Minister for these amendments, which, so far as I can see, exactly meet coroners' concerns. It is very good to see that these amendments will be made.

Photo of Lord Henley Lord Henley Shadow Minister, Justice

My Lords, I echo what the noble and learned Baroness had to say. Again, what the Government propose is very similar to what the coroners' society proposed in correspondence with us. I congratulate the Government on having managed to come up with this over the summer; it will certainly save the Minister from another meeting that might otherwise have been needed to sort out things between now and Third Reading in a diary which I imagine will become increasingly full over the next week.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

My Lords, I, too, thank the Minister for this concession. It was a very important issue that was very properly raised, and the Government have considered it and listened.

Amendment 43 agreed.

Schedule 8 : Chief Coroner and Deputy Chief Coroners

Amendment 44

Moved by Baroness Fookes

44: Schedule 8, page 139, line 30, at end insert—

"( ) One Deputy Chief Coroner shall be appointed with specific responsibilities for the oversight of military inquests and for the specialist training of all coroners undertaking military inquests."

Photo of Baroness Fookes Baroness Fookes Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, the amendment would replace two amendments that I moved in Committee and that did not find favour with the Minister. I return to this without apology because, although it may be of narrow interest, it is extremely important to those who are affected.

Briefly, the background to the amendment is that, in the early days of casualties coming in from Iraq and Afghanistan, very few coroners had specialist knowledge of conflict, of the way in which wars work, and of the general ethos of the armed services. This made for difficulties that were very painful for the families who were affected by the deaths of service men and women. Fortunately, or unfortunately, practice meant that, finally, several coroners had considerable experience of these things. The difference that this made to the inquests and to the feelings of the families cannot be overestimated.

The fear is that that expertise might be lost with the passage of time, so the amendment seeks to ensure that a senior deputy chief coroner has overall responsibility for supervising any military inquest and that the coroners who undertake it have had specialist training. The Government argued that this was unnecessary because training would be dealt with in the Bill and so this point did not need to be made. That is all very well but, if it is not in the Bill or the subsequent Act of Parliament, the chances are that, with the passage of time, all this will be forgotten and the same problems will arise when there is another series of deaths from conflict.

I know that some felt that training coroners with specialist interests might make them more likely to challenge the Government where there was some possibility that the Government were to blame for the deaths. I do not dwell on that; let me give the Government the benefit of the doubt that no such thoughts would cross their mind. But nonetheless, I still maintain that we need a specific regulation within what will be an Act of Parliament for many years to come in order to ensure that these matters are dealt with properly.

In this, I am not alone. Outside the House, the Royal British Legion is deeply concerned and certainly wishes me to put forward amendments to this effect. What is more, the War Widows' Association, which perhaps has more of an interest in this than anyone, is equally concerned that there should be something in the Bill. I declare an interest inasmuch as I am the president of the association.

I hope that I might get a little more from the Government than I did on the previous occasion, perhaps not a whole olive branch, as mentioned by the noble and learned Baroness in an earlier debate, but perhaps I may have a few leaves. I beg to move.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I wish to express my firm support for the noble Baroness, Lady Fookes, in what she has said. Recently, a number of inquests have been held in which the coroner has been critical and got into a controversy over military procedures, including the role and responsibilities of commanding officers. Unless coroners have some experience of conditions on the battlefield, I do not believe it makes sense for them to enter into such debates because they confuse the issue and probably make the situation worse for the families who are trying to find out what happened. Therefore I accept absolutely that a coroner who is to undertake a military inquest, particularly one that involves a possible battlefield situation, should be educated to understand precisely what the role and responsibilities of commanding officers and others on the battlefield are so that the judgment is made as impartially as possible.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, I, too, support this amendment. I have personal experience of coroner training, having undergone some of it, and it is extremely good. However, this is such a specialised area that it would be entirely inappropriate to take up the time of all the coroners of England and Wales on training in how to deal with military inquests. What is necessary is to have a small cadre, perhaps only two or three, of coroners well trained in the duties required in this highly specialised and particularly sad area. But if no one is in charge, it is just the sort of thing that can slip through the net. I strongly support the amendment.

Photo of Lord Henley Lord Henley Shadow Minister, Justice

My Lords, I also offer my support to my noble friend. As always, she has made a strong case for the idea that there should be a deputy chief coroner with particular responsibility for the oversight of military inquests and for the specialist training of all coroners who undertake military inquests. She certainly has our support for this.

It has been noted that a great deal of expertise in dealing with military inquests has been built up in certain coronial areas, sadly because the coroners of Wiltshire and Oxfordshire have had to deal with so many such inquests just because of where they are in relation to our airbases. The expertise that has been developed is formidable, but it is obviously somewhat ad hoc depending on which airbase in this country the deceased is returned to. I therefore find very attractive the suggestion of my noble friend that there should be some formalisation of that expertise so that a designated person has responsibility for co-ordinating training across all coronial areas and can oversee military expertise.

I do not doubt that the Minister appreciates the sensitivity and, sadly, the topical importance of this issue. The amendment is important and deserves support and I hope that the Minister will offer a sympathetic response to my noble friend—and certainly more than a few leaves from the olive branch. If he cannot offer even that, I hope he will offer at least a chance of further talks between now and Third Reading to see whether we can meet the suggestions of my noble friend.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

My Lords, the deaths and injuries which occur on military service are outwith the experience of almost everyone who has not served on active service. When we were dealing with the Pensions Appeal Tribunal earlier this year, thanks to the persistence and tenacity of the noble Lord, Lord Morris of Manchester, we managed to secure a government concession that the Pensions Appeal Tribunal would hold a special place within the tribunal system because of the expertise required. If such a special place is granted where we are dealing with injuries, there has to be special provision for inquests involving military personnel.

I speak from some experience of courts martial and of having learnt, in the particular circumstances of military service, the significance of the chain of command, to which the noble Lord, Lord Ramsbotham, referred, and the significance of the provision of suitable facilities and resources to our armed services. Deaths that occur may—not always—involve a consideration of those factors. The provision that the noble Baroness, Lady Fookes, has advanced is exactly right for military inquests. We support her wholeheartedly.

Photo of Lord Tunnicliffe Lord Tunnicliffe Government Whip, Government Whip

My Lords, I understand and support the desire of the noble Baroness, Lady Fookes, to ensure that there is adequate expertise to carry out military inquests in the reformed coroner system. I have listened to her arguments carefully today, as did my noble friend Lord Bach in Committee and, prior to that, at Second Reading. Amendment 44 airs this important issue again by proposing once more to make a deputy chief coroner responsible for overseeing military inquests and for providing specialist training to coroners who undertake them. However, we remain convinced that no specialist military coroner is necessary. I can reassure the noble Baroness and service families that the Bill will ensure that every military inquest can be carried out with the expertise it requires and deserves. It may be helpful if I confirm how this will happen. Before I do so, however, it is important to stress that we are talking about an entirely new coroner system, with training for coroners and a Chief Coroner who will require and ensure that standards are available to meet the needs of each inquest.

First, Clause 33 will ensure that, for the first time, all coroners are trained and receive refresher training throughout their careers in the specialist skills they will need for service investigations and other types of specialist investigations. The Chief Coroner himself or herself will be responsible for this training and not just his or her deputy.

Secondly, in addition to training, the Chief Coroner will issue guidance and set standards that coroners must meet for every type of death. The draft charter for the bereaved states that this will include standards in relation to deaths on active service. Although the charter is still a draft and will remain so until after the Chief Coroner is in post, I have no reason to believe that this provision will change. I understand that the Oxfordshire deputy assistant coroner has compiled extremely useful guidance on military inquests. I would not be surprised if future guidance drew on it.

Thirdly, all new coroners will be expected to operate to consistently high standards across the country. Many of the inquests that they conduct already raise equally complex issues in other settings.

Fourthly, the Chief Coroner would be able under Clause 3 to direct that a particularly complex investigation be conducted by a coroner whom he or she knows has had previous successful experience in such a case or, under Schedule 9, to nominate a judge, former judge or former coroner with the skills and experience that are needed.

Fifthly, I anticipate that, in practice, it is likely that many investigations into service deaths will still take place in the Oxfordshire or Wiltshire and Swindon jurisdictions. The current policy is, and will remain under the Bill, that those coroners will retain jurisdiction for those cases where there has been more than one death in the same incident. I should stress that in all cases where an investigation may be transferred from one coroner to another the families' views will be taken into account. We have been listening to service families. For instance, during the summer Recess, the Defence Minister Bill Rammell MP and officials attended the Royal British Legion and War Widows Association Armed Forces family event. Among the 30 bereaved families present was overwhelming support for inquests to be held locally to the family wherever possible—although it was acknowledged that other families' views may differ.

I remain confident that the Bill provides for all coroners to be skilled to tackle all investigations which come before them. There will be the responsibility for the oversight of, and training for, service personnel inquests that the noble Baroness seeks. As I have said, this will be the role of the Chief Coroner. My noble friend Lord Bach and I would be very happy to meet the noble Baroness between now and Third Reading. I would hope to be able at such a meeting to go through the detail and persuade her that the retention of skill and expertise and the training of coroners are assured through the responsibilities of the Chief Coroner. I hope that in the light of my explanation the noble Baroness will agree to withdraw her amendment.

Photo of Baroness Fookes Baroness Fookes Deputy Chairman of Committees, Deputy Speaker (Lords) 4:30 pm, 26th October 2009

My Lords, I am deeply grateful to have received support in this short debate from such notable Members of the House of Lords. I listened carefully to the Minister. While I am grateful, I am still not entirely satisfied. For that reason, I should like to test the opinion of the House.

Division on Amendment 44

Contents 153; Not-Contents 127.

Amendment 44 agreed.

Division number 1 Coroners and Justice Bill — Report (2nd Day)

Aye: 151 Members of the House of Lords

No: 125 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Amendment 45

Moved by Lord Bach

45: Schedule 8, page 141, line 6, at end insert—

"A reference in paragraph 5 or 6 to paying expenses incurred by a person ("P") includes a reference to indemnifying P in respect of—

(a) costs that P reasonably incurs in or in connection with proceedings in respect of things done or omitted in the exercise (or purported exercise) by P of duties under this Part;

(b) costs that P reasonably incurs in taking steps to dispute claims that might be made in such proceedings;

(c) damages awarded against P, or costs ordered to be paid by P, in such proceedings;

(d) sums payable by P in connection with a reasonable settlement of such proceedings or of claims that might be made in such proceedings."

Amendment 45 agreed.

Clause 32 : Reports and advice to the Lord Chancellor from the Chief Coroner

Amendments 46 to 48 not moved.

Amendment 49

Moved by Lord Bach

49: After Clause 33, insert the following new Clause—

"Medical Adviser and Deputy Medical Advisers to the Chief Coroner

Schedule (Medical Adviser and Deputy Medical Advisers to the Chief Coroner) makes provision about the appointment etc of the Medical Adviser to the Chief Coroner and Deputy Medical Advisers to the Chief Coroner."

Amendment 49 agreed.

Clause 35 : Appeals to the Chief Coroner

Amendment 50 not moved.

Amendment 51

Moved by Lord Bach

51: Before Schedule 9, insert the following new Schedule—

"Medical adviser and Deputy medical advisers to the Chief CoronerAppointment and functions of Medical Adviser to the Chief Coroner

1 The Lord Chancellor may appoint a person as Medical Adviser to the Chief Coroner ("the Medical Adviser") to provide advice and assistance to the Chief Coroner as to medical matters in relation to the coroner system.

Appointment and functions of Deputy Medical Advisers to the Chief Coroner

2 (1) The Lord Chancellor may appoint however many Deputy Medical Advisers to the Chief Coroner ("Deputy Medical Advisers") the Lord Chancellor thinks appropriate.

(2) A Deputy Medical Adviser may perform any functions of the Medical Adviser—

(a) during a period when the Medical Adviser is absent or unavailable;

(b) during a vacancy in the office of Medical Adviser;

(c) at any other time, with the consent of the Medical Adviser.

Qualification for appointment

3 A person may be appointed as the Medical Adviser or as a Deputy Medical Adviser only if, at the time of the appointment, he or she—

(a) is a registered medical practitioner and has been throughout the previous 5 years, and

(b) practises as such or has done within the previous 5 years.

Consultation before making appointment

4 Before appointing a person as the Medical Adviser or as a Deputy Medical Adviser, the Lord Chancellor must consult—

(a) the Chief Coroner, and

(b) the Welsh Ministers.

Terms and conditions of appointment

5 The appointment of a person as the Medical Adviser or as a Deputy Medical Adviser is to be on whatever terms and conditions the Lord Chancellor thinks appropriate.

Remuneration, allowances and expenses

6 (1) The Lord Chancellor may pay to the Medical Adviser—

(a) amounts determined by the Lord Chancellor by way of remuneration or allowances;

(b) amounts determined by the Lord Chancellor towards expenses incurred in performing functions as such.

(2) The Lord Chancellor may pay to a Deputy Medical Adviser—

(a) amounts determined by the Lord Chancellor by way of remuneration or allowances;

(b) amounts determined by the Lord Chancellor towards expenses incurred by that Deputy Medical Adviser in performing functions as such."

Amendment 51 agreed.

Clause 39 : Treasure regulations

Amendments 52 and 53 not moved.

Clause 42 : "Interested person"

Amendment 54

Moved by Lord Alderdice

54: Clause 42, page 23, line 15, at end insert—

"( ) In circumstances where an interested person willing to represent the interests of the deceased does not exist, a coroner may recognise as an interested person an organisation or person who would be otherwise recognised as an interested party for the purposes of judicial review proceedings."

Photo of Lord Alderdice Lord Alderdice Liberal Democrat 4:44 pm, 26th October 2009

My Lords, Amendment 54 is in my name and that of my noble friend Lord Thomas of Gresford. Clause 42 describes interested persons who may be appointed by the coroner. The problem is that there are circumstances in which there is no interested person who is willing to represent the interests of the deceased person, but there may be persons or organisations that are prepared to address this requirement. The Minister may well say that Clause 42(2)(m), which refers to,

"any other person who the senior coroner thinks has a sufficient interest", covers the question that we have identified in this amendment, which says that,

"a coroner may recognise as an interested person an organisation or person who would be otherwise recognised as an interested party for the purposes of judicial review proceedings".

It may indeed be covered. It is not that we would press that this matter should be clarified entirely in the Bill, but at this stage I do not think that the Government have given any undertaking that the matter would be clarified in regulations or that it would be identified to coroners that they could exercise their discretion in this way. We are moving this amendment to give the Government an opportunity to clarify whether it would be made clear to coroners in regulations that they had the discretion to appoint someone who was not, in the first instance, an interested party but who, as an individual or organisation, could properly be regarded as such for the purposes of this clause. I beg to move.

Photo of Lord Tunnicliffe Lord Tunnicliffe Government Whip, Government Whip

My Lords, Clause 42(2) sets out a comprehensive list of persons who may be designated as interested for the purpose of an investigation into a death. In the absence of an interested person willing to represent the interests of the deceased, the amendment would allow coroners to recognise an additional category as interested for this purpose. This category would be organisations or persons who are considered interested for the purpose of judicial review. It is very kind of the noble Lord to have made my speech for me, as I do not believe that this alteration is necessary. Clause 42(2)(m) gives the coroner discretion to include within a particular case any person with a sufficient interest. This could include a party interested for purposes of judicial review. It could also include a member of the person's extended family, such as an uncle or niece, or even a friend of the deceased.

If a coroner decides that a person has a sufficient interest and they do not fall within one of the other categories, they may appeal that decision to the Chief Coroner under Clause 35(5). I believe that this will sufficiently protect those persons targeted by this amendment. It is probable that we will be able to clarify this in regulation, but I put a slight caveat on that and will write to the noble Lord, Lord Alderdice, in terms before Third Reading saying whether we will be able to do so. If we are unable to do so, he will of course be able to retable the amendment. I invite the noble Lord to consider withdrawing the amendment.

Photo of Lord Alderdice Lord Alderdice Liberal Democrat

My Lords, I am grateful to the noble Lord for what he has said. Our concern is, first, to put the matter beyond peradventure, as it is not wholly clear in the Bill, and, secondly, to remind coroners that they have this option. As he said, from time to time they will undoubtedly glance down the substantial list of those who they may appoint, but it may not be entirely obvious to them—it is not to us—that other parties may be appointed in the way that is described. However, if the issue were included in regulation, that would satisfy the matter entirely. As I say, I am grateful to the noble Lord for his response. I hope that he will respond positively by letter. I beg leave to withdraw the amendment.

Amendment 54 withdrawn.

Clause 43 : Interpretation: general

Amendment 54A not moved.

Amendment 55

Moved by Lord Bach

55: Clause 43, page 25, line 23, at end insert "(read without regard to any order under section 380 of that Act) and also includes an offence under—

(a) Part 2 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or paragraph 4(6) of Schedule 5A to that Act,

(b) Part 2 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or paragraph 4(6) of Schedule 5A to that Act, or

(c) Part 1 or section 47K of the Naval Discipline Act 1957 (c. 53) or paragraph 4(6) of Schedule 4A to that Act"

Amendment 55 agreed.

Amendment 56

Moved by Lord Lloyd of Berwick

56: Before Clause 46, insert the following new Clause—

"Murder: extenuating circumstances

(1) In a trial for murder the trial judge may in the course of his summing up direct the jury that if they are satisfied that the defendant is guilty of murder, but are of the opinion that there were extenuating circumstances, they may on returning their verdict add a rider to that effect.

(2) The judge may not give such a direction unless there is evidence on which a reasonable jury might so find.

(3) 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.

(4) If the judge passes a sentence other than a sentence of life imprisonment, he shall be obliged to state his reasons.

(5) If it appears to the Attorney General that the sentence so passed is unduly lenient he may refer it to the Court of Appeal under section 36 of the Criminal Justice Act 1988 (c. 33) (reviews of sentencing)."

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

My Lords, there was a remarkable debate in Committee on this amendment. All but one of the 18 noble Lords who spoke on that occasion supported the amendment, some in glowing terms. The exceptions were the right reverend Prelate the Bishop of Winchester, who had certain reservations, and the noble and learned Baroness the Attorney-General, who replied to the debate. At the end of the debate I undertook to bring the amendment back on Report, which I now do.

As the House well knows, the circumstances in which the crime of murder can be committed are almost infinitely various. At one end of the scale, it is the most hideous of all crimes; at the other, it is among the most venial. The trouble is that the judge is obliged by law to pass the same sentence in every case—namely, imprisonment for life. However, we all know that in practice imprisonment for life does not mean exactly what it says. Very few convicted murderers do, in fact, spend the rest of their life in prison. After a minimum period in prison determined by the judge, depending on the seriousness of the case, whether that be 10, 15 or 20 years, they come before the Parole Board and in the great majority of cases are released on licence.

I make it absolutely clear at the outset that it is, to my mind, right that such cases should be sentenced to life imprisonment, so that the person could, if necessary, be recalled, but my amendment does not touch cases at that end of the scale. At the other end of the scale, there are cases of a very different kind. I have in mind the genuine mercy killer—the loving husband or wife who kills out of compassion—the soldier who kills in the course of duty as a result of an erroneous, split-second decision or the battered wife who kills after suffering years of abuse. Such persons very often have no defence to a charge of murder, so the judge will have no option but to sentence them to life imprisonment. This makes the law look ridiculous when everybody knows that in practice they will be released within a year or two at most. However, it is worse than that. It is, to my mind, wrong and unjust that such persons should be subject to recall, as they would be if a life sentence were passed, when there is obviously no prospect of their committing such a crime for a second time.

This amendment would provide a better solution to those cases. It would enable a the jury, when bringing in a verdict of murder, to find that there were, in its view, extenuating circumstances and it would be able to add a rider to that effect. The result would be that the judge was released from the obligation to impose a life sentence and could impose whatever determinate sentence—one year, two years or whatever—he regarded as being appropriate in the circumstances. There would then be no need for the defendant to appear before the Parole Board, which would be a complete waste of everyone's time.

It is difficult to know why such a humane—as I suggest it is—and harmless improvement in the law, suggested first not by me but by Professor Spencer QC of Cambridge University, should not be supported by the Conservatives and should be opposed by the Government. I shall hazard a guess later.

I shall deal first with the three arguments advanced in Committee by the noble and learned Baroness the Attorney-General. First, it was said that it would create a,

"halfway house between murder and manslaughter".—[Hansard, 30/6/09; col. 169.]

It was said that that would not be helpful. But why would it be unhelpful? It would provide an answer in the very cases where, at present, we have to squeeze the facts of deserving cases within the partial defence of diminished responsibility in order to do justice. That point was made strongly in Committee by the noble Lord, Lord Goodhart, the noble Baroness, Lady Murphy, and, on other occasions, by the noble Lord, Lord Walton of Detchant.

Instead of having what has become known as the benign conspiracy that now operates between prosecution and defence counsel, and experts on both sides, so as to secure a just result, we could deal with these deserving cases openly and honestly on the basis of a finding by the jury. Such a solution will become all the more urgent if the partial defence of diminished responsibility is to be narrowed in the way proposed by the Government and will depend on a recognised medical condition.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

I am having trouble with a small point, about which the noble and learned Lord knows. I am not happy about the words "a reasonable jury" in subsection (2) of the proposed new clause. In my view, all juries are deemed to be reasonable. Would it not make more sense if the word "reasonable" was omitted and, after the word "might", the word "reasonably" were inserted?

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee) 5:00 pm, 26th October 2009

I think that the noble Lord and I have the same point in mind. The test that I have put in the amendment is quite often applied, but, in reality, there is no difference between the two tests. I am obliged to the noble Lord. For the reasons that I have suggested, far from being unhelpful, this amendment would be extremely helpful.

Secondly, it was suggested that the amendment would work only if there was a definition of the words "extenuating circumstances". The noble and learned Baroness said that Parliament should decide,

"something of such importance to the public at large".—[Hansard, 30/6/09; col. 171.]

Again, I am sorry that I cannot agree with that. In every murder case, the members of the jury are the representatives of the public at large, just as much as Members of Parliament are, so why not leave the decision in these cases to the jury? Nor would the jury have any doubt as to what "extenuating circumstances" meant. If I were the judge in such a case, I should have no difficulty in guiding them. I would simply refer to the Concise Oxford Dictionary and say, "Members of the jury, extenuating circumstances are circumstances that lessen the seriousness of the offence or diminish the guilt". That would be perfectly satisfactory guidance for them. No doubt the Judicial Studies Board would improve the amendment, but that would be the basis of it—simple English words that the jury could apply without any difficulty, and certainly without the need for a definition. Indeed, it would be literally impossible for Parliament to attempt to define all the circumstances that the jury might regard as extenuating and it would destroy the whole point of the amendment.

The third argument seemed to me trifling. It was said that the amendment might add complexity, because what would happen if 12 members of the jury were in favour of convicting and only eight were in favour of finding extenuating circumstances? The answer is obvious: there would be no rider in such circumstances.

Those were the only arguments and they seemed—at any rate, to me—to be far from enough to explain why this amendment was being resisted by both the Government and the Official Opposition. What is the explanation? It is quite obvious, at any rate to those of us who sit on the Cross Benches. It is politics. Both sides fear that, if they support this amendment, they will be accused by the other of being soft on crime, so there is an impasse. Both sides fear the headlines in the Daily Mail and fear that this will lose them votes in the general election. I find that profoundly depressing, all the more so because my belief is that both sides are wrong.

There must, of course, be a sentence of imprisonment in these cases because we are dealing with murder. It must, of course, be left to the jury. However, if those two conditions are satisfied, I believe that the public would positively welcome this amendment. That was certainly the evidence emerging from the research carried out on behalf of the Law Commission in 2003, and again in 2005, by Professor Barry Mitchell. He found that the public are perfectly capable of distinguishing between different kinds of murder and that there is little, if any, support for the mandatory life sentence in the case of the genuine mercy killer. The Law Commission endorsed that view when it said, on page 155, that a life sentence in such cases is "neither necessary nor appropriate". I agree.

Is the life sentence really so sacrosanct now in cases of murder that we cannot make this limited exception? It is not even as though it is the first exception; we already have one in the case of the partial defence of provocation and another in the case of the partial defence of diminished responsibility. Why can we not add a third exception to do justice in the very deserving cases that I have in mind? It is depressing beyond belief to me—and, I suspect, to many others—that political considerations should stand in the way of a reform of the law that would be so beneficial. I beg to move.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

My Lords, I do not always agree with the noble and learned Lord who has just spoken but on this occasion I largely do. I gather that at a later stage he is prepared to accept the amendment that I mentioned in my intervention. It is not very important: he is right to say that not a lot divides us.

The noble and learned Lord spoke with great clarity and persuasion. I think that we have to adjust to the circumstances that prevail at the time, and I entirely agree with him that it is irrelevant how this might be received by people outside who have not listened to this important debate. I think that the law has to adjust to changed circumstances, and I certainly support all those mentioned by the noble and learned Lord. This is not a party-political issue; it is a commonsense issue, and he has argued the case for reform with skill. I hope that the Government will understand this issue in that light. It is not one that ought to divide us but we have to be prepared to understand that circumstances change cases, as he made out perfectly well.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

My Lords, there is a famous song in Gilbert and Sullivan's "The Mikado" about making the punishment fit the crime. That surely should be the target of all sentencing, although not quite in the way suggested by Gilbert and Sullivan. Making the punishment fit the crime is and should be the target of English sentencing in courts, but there is one exception to this and one only, which is the mandatory life sentence for murder.

Only murder requires a mandatory life sentence, and that seems to have become a sacred matter. It means that when the Government asked the Law Commission to consider reforms to the law of murder, they excluded any alteration in the mandatory life sentence. The result was a report by the commission which, I believe, has been regarded by many people as rather unsatisfactory. Yet, as the noble and learned Lord, Lord Lloyd of Berwick, said, murder covers an immensely wide spectrum—everything from sadistic serial murder to mercy killing. Why should we not recognise this and allow variable sentences for murder? The main reason seems to be the fear that the media will stir up public opinion by attacking any sentence short of life imprisonment as being soft. The answer to that is to adopt the proposal by Professor Spencer, as this amendment does.

The Spencer proposal, on which the amendment is based, provides three safeguards. First, the judge must tell the jury that it would be possible for a reasonable jury, or for a jury reasonably, to decide that there were extenuating circumstances which justified a lesser sentence. Secondly, the jury, or at least 10 of its 12 members, would have to decide that there were extenuating circumstances which justified a sentence short of life imprisonment. Thirdly, if the Attorney-General thought that the sentence was too lenient, she would be able to appeal against it. The involvement of the jury here is critical because, if a jury of ordinary people decides that there are extenuating circumstances, it will be far more difficult for the media or the public to attack the sentence in question.

It has been suggested that the expression "extenuating circumstances" needs more detailed definition. I do not agree with that. The facts of each case are likely to be immensely variable and it would be useless to try to put them into a rigid list. The only reasonable definition of extenuating circumstances that I can come to is circumstances that reasonable people would regard as justifying a sentence that was not a life sentence. That is simply a circular definition. No doubt over time a pattern would be built up, but it should be a flexible pattern developed through the courts, not tied to rigid rules set out in legislation.

The acceptance of this amendment would greatly simplify the law. The defence of diminished responsibility would be limited to the purposes for which it was originally created—that is, to apply to people who are driven to kill by an abnormal mental condition. It would not need to be extended beyond its real meaning, as happens now, to enable a court to impose a merciful sentence on a mercy killer. The partial defence of provocation, or its proposed replacement—loss of control—could be abolished altogether and the facts taken into account in deciding whether the circumstances were extenuating, and if so, what the sentence should be.

This amendment would make the law simpler and fairer. As far as I can see, it has no disadvantages and I invite your Lordships to support it.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

Does the noble Lord support my comment that the words in the amendment are fine except for, "a reasonable jury"? That is misconceived. The jury might come to a reasonable verdict.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

I mentioned both options in my speech. I do not think that there was much difference between them but I am happy to accept the noble Lord's suggestion.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, I put my name to this amendment and strongly support what has already been said both by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Goodhart. The phrase "life imprisonment" is sacrosanct, as the noble and learned Lord, Lord Lloyd, said, but of course, it is not true. Very few people serve life imprisonment; I think that fewer than 10 people are likely to be there throughout their lives.

So, we start with a contradiction: the sacrosanct life imprisonment and the reality which is entirely different. It is a sound and not substance. It would be very sad—it is sad in that it happens—if both the Government and the Official Opposition were so concerned to align their position with the popular press rather than look at the merits of a very good amendment. It would be a great triumph for common sense, as well as for the amendment of the noble and learned Lord, Lord Lloyd, if both the Government and the Official Opposition were to agree on this and let it through.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

The mandatory life sentence for murder is an anachronism and it is not benign either. I support what has been said by all speakers so far in this short debate for the reason that is central to the case that they make—that every murder differs in important respects generally from another. The circumstances in which murders are committed are infinitely variable. That truth has had to be recognised by the various administrative devices that we have adopted over the years to deal with it. It would be far better for the trial jury, suitably directed—I shall come to that in a moment—to give its opinion, after it has heard all the witnesses and seen the evidence, on whether extenuating circumstances exist.

I find it difficult to understand the visceral opposition that exists in some quarters because in the same quarters there is a passionate and correct upholding of the jury system and the jury's right to determine guilt or innocence. It would be far better to extend that, so that a jury might say, "Very well—guilty of murder. But having heard the judge's direction as to whether there exists evidence that may be capable of being seen to be extenuating, we think that such evidence does exist and that there are extenuating circumstances".

This amendment will retain the life sentence as a norm, but it will mitigate its propensity to produce an incongruous result. It is important to bear in mind that the judge must direct the jury that in his view, if they are satisfied that the defendant is guilty of murder but are of the opinion that there were extenuating circumstances, they may return a verdict to that effect. However, he may not give such a direction unless there is evidence on which a jury might reasonably find. It is also important to preserve the discretion of the Attorney-General to refer the matter to the Court of Appeal if he or she believes that the sentence is unduly lenient. It will also be another ground for appeal to assert that the judge was wrong in directing the jury as he had and that there was evidence capable of such a finding.

For reasons which have been touched upon, a certain amount of courage will be needed if this is to be accepted—a certain amount of courage, but not much. It ought to be found.

Photo of Lord Woolf Lord Woolf Crossbench 5:15 pm, 26th October 2009

My Lords, I hesitate to add to the eloquence that has been advanced in favour of the amendment, but I would be departing from a tradition that has grown up in recent times, and certainly since the time of Lord Lane, of former Lord Chief Justices indicating that reforms of this kind are desperately needed in relation to the law of murder.

We have heard previous speakers identify the various precautions in existence, showing that ample safeguards are included in the proposed section. Therefore, if the clause becomes law, nothing untoward will happen. However, I want to add one more. It is clear from subsection (3) that the judge himself must consider it appropriate, having regard to the extenuating circumstances, not to impose a life sentence. He will therefore have in mind the fact that the law is so clear that in all ordinary circumstances the sentence must be one of life. It will only be in a situation in which, as the sentencing judge, he is satisfied that justice does not require a life sentence that he will impose another sentence.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, I, too, support the amendment. The fear of being perceived to be soft on crime, the jurisprudential basis rightly identified by the noble and learned Lord, Lord Lloyd of Berwick, is nonsensical in this context. It has for some time been the case that the mandatory life sentence does not consist at all of a life sentence: it consists in all but a few cases of a penal element expressed at the trial in the form of a term of years communicated to the defendant, following which the defendant is considered for release by reference to whether it is safe to release him or her.

The only argument advanced by the noble and learned Baroness the Attorney-General in Committee in response to the points made was that the life sentence enables the defendant to be recalled to prison at any time during his or her life. If that is the aim of the life sentence, and the only aim, surely that objective can be achieved by confining the life sentence, as the amendment would, to cases where there are circumstances which justify a lifelong condition and the possibility of recall for the whole of the individual's life. There is no basis for those conditions where there are extenuating circumstances which make the prospect of repetition of the offence nonexistent.

I also remain concerned, as I explained in Committee, that under the current law, there are cases where the jury is simply unwilling to convict of murder, although that is the true verdict, because it is unwilling to subject the defendant to a mandatory life sentence, because that is manifestly unjustified in the circumstances of the case.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Spokesperson for Health

I, too, support this very important amendment. I say to the Government that there cannot have been many debates in this Chamber where we have heard the views not only of a very distinguished retired Law Lord, the noble and learned Lord, Lord Lloyd, but of a retired Lord Chief Justice and of the noble and learned Lord, Lord Mayhew, who was both Attorney-General and Secretary of State for Northern Ireland for considerable periods; so we have a wealth of experience advising us in this debate. It is also to be noted that in the noble and learned Lord's amendment, the judge is not obliged to pass a sentence other than a life sentence. If the judge regards the defendant, despite the extenuating circumstances, as being a continuing danger, the judge may still pass a life sentence and therefore ensure that the whole panoply of the Parole Board is brought to bear on the case and the defendant may be subject to release only on licence in future.

Had we been able to conduct methodical research into the views of juries and the way in which juries function, I am absolutely sure, after well over 30 years of dealing with juries, that we would have found juries agreeing with what is proposed. I support completely the last point made by the noble Lord, Lord Pannick: there is a mass of anecdotal, albeit anecdotal, evidence that juries are not convicting people of murder in cases where there are extenuating circumstances, for two simple reasons. First, they are not willing to hear the words, "You will be imprisoned for life", passed on the defendant in the case. Secondly, they know that the parole system is unpredictable and, currently, overwhelmed and therefore cannot be guaranteed to provide fairness.

Photo of Baroness Warnock Baroness Warnock Crossbench

My Lords, I rise briefly simply so that there should be some voice other than the voice of the law in favour of this extremely important and subtle amendment. The law must be seen to be just. I have just been reading the life of Lord Denning. His perpetual insistence on the aim of a trial, the aim of the court and the aim of the judge being to see that justice is done to the defendant seems to me to be of enormous importance.

It cannot be seen by ordinary people who are not lawyers to be just if crimes such as mercy killings or deeply regretted killings undertaken in the heat of battle should be treated in the same way as completely different, malicious, evil and probably self-seeking killings at the other end of the spectrum. Even though the concept of a life sentence is absurd because it is not normally a sentence for life, the ordinary public, of whom the jury is composed, do not like this farce and the manifest injustice of treating different cases as though they were the same.

Photo of Lord Condon Lord Condon Crossbench

My Lords, as a former police commissioner, I find myself completely at ease with and supportive of this amendment. I believe that the majority of the public would also be at ease with it. I do not think it is in any way a softening or weakening of the approach to murder. It is an elegant solution to a problem that has been unresolved for too long. I support the amendment.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I also add non-legal support to my noble and learned friend Lord Lloyd. I was enormously influenced in my decision by an excellent report by a very distinguished panel led by the Dean of Southwark who came to exactly the same conclusions for exactly the same reasons.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

My Lords, nothing that I say should affect the unanimity of the verdict that Members of this House have expressed on this matter until now. I spoke at some length in Committee and nothing that I said on that occasion will be improved by repetition. As a circuit judge, I never had occasion to try a murder case, but 40 years ago, I was a Minister in the Home Office dealing with criminal matters from day to day. James Callaghan, the Home Secretary of the day, told me quite robustly that this was lawyer's work and that although the decision in relation to life cases would ultimately be his, he would expect to have my firm views with regard to each case. I found myself almost weekly being involved in situations where the law ordained that there should be a rigid sentence without exception but where the range of difference between one case and another, as every speaker has endorsed, was so immense that one could not conceive of the justice of dealing with them in a rigid and uniform way. It therefore seems to me that the amendment is utterly justified and meritorious. Not only can it simplify and clarify the law, because it can take over from considerations in relation to provocation, but it can make it much more transparent.

From time to time over the centuries there has been what might be described as pious perjury on the part of juries, and thank goodness for that. They have somehow bent the facts in order to prevent dreadful injustices. I have no doubt that even nowadays juries exercise some measure of pious perjury in arriving at verdicts of manslaughter rather than murder. What is now less than honest can become totally honest and transparent. As more than one speaker has stressed, society at large, right-thinking, intelligent, fair-minded, balanced society will accept this. If we wait for the day when the Daily Mail, the Daily Mirror and the Sun look in a balanced, reserved and cool way, we will have to wait for ever.

I noticed the Minister recoil almost in horror when it was suggested that he was politically motivated here. I have immense regard and respect for him. All I say is that it would be unfortunate if he was seen to stand with the tabloids against remedying an obvious injustice as soon as possible.

Photo of Baroness Murphy Baroness Murphy Crossbench 5:30 pm, 26th October 2009

My Lords, I repeat what I said in Committee in strong support for the amendment. I am particularly concerned—other people have not mentioned this—about people with peculiar mental states who will not now fit into the new criteria for diminished responsibility because they will not fit conveniently into the diagnostic and statistical manual and the international classification of diseases. If we are to have individualised justice, jurors and judges need to address a wide range of circumstantial, psychological and contextual matters, as other people here have said today, and it concerns me that we might miss out some of the people who would be covered by the old provisions for diminished responsibility. The amendment would be an elegant and simple way of meeting some of our concerns, and defendants would not have to be artificially squeezed into inappropriately fudged categories. I give my wholehearted psychiatric support to the amendment.

Photo of Lord Alderdice Lord Alderdice Liberal Democrat

My Lords, I do not wish to repeat what my noble professional colleague said, so I will address a different, and straightforwardly political, difficulty that leads me strongly to support this amendment.

The population as a whole does not necessarily look in the same way at the detail of how a court has come to its conclusion. I cite the case of Private Clegg. When he was convicted, there was a clear view in Northern Ireland of what that meant; he was guilty of murder, and a life sentence was required. When subsequently it was decided that he should be released, it was not seen as appropriate mercy, given the circumstances; it was seen as the British establishment backing its own man in the security forces without due consideration of the sensitivities of nationalist people in Northern Ireland. That was not what it was and not how it should have been seen, but it was to some extent a consequence of the straitjacket in which the judge and the court were placed. Had the amendment in the name of the noble and learned Lord, Lord Lloyd of Berwick, been in place at the time and had that flexibility been available, it would have made it possible for the judge and the court to nuance the decision in such a way that a political problem, which proved to be of serious magnitude in Northern Ireland, would at least have been mollified to some extent.

We sometimes speak of political motivations as though they were always a bad thing, particularly in relation to issues of this kind, but here there are very good reasons for understanding that adverse and inappropriate political consequences can flow from such situations without the flexibility in the noble and learned Lord's amendment. This is an opportunity for us to rectify this, if not for the past then at least for the future.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

My Lords, I, too, strongly support the amendment. I must apologise to the House and to my noble and learned friend Lord Lloyd for missing his opening remarks, but I think that I have heard enough of the debate to feel confident that I will not simply repeat what other people have said, no doubt with greater eloquence.

The crime of murder, as we have heard, encompasses an immensely broad spectrum of circumstances that runs all the way from terrorist or gangland killings at one end of the scale to mercy killings at the other. The mandatory life sentence is a supremely blunt instrument for responding to the relevant distinctions in a properly discriminating way. Our law is saved from the charge of barbarism only by what is referred to as the benign conspiracy. Fictions of this sort are undesirable, so it is clearly desirable that the law should be amended to recognise openly and transparently the distinctions to which all noble Lords have referred. However, it is imperative, and not just desirable, that something is done now that the Government propose to narrow the scope of the defence of diminished responsibility, which provides the basis for the benign conspiracy, so that it will no longer be available.

The Government, with this Bill, are implementing some of the recommendations of the Law Commission report of 2004, but they have not implemented all of them. The report called on the Government to undertake a public consultation on whether, and if so to what extent, the law should recognise either an offence of mercy killing or a partial defence of mercy killing, but the Government have not implemented that recommendation and have not undertaken the public consultation that was called for.

In the absence of such a consultation and with the narrowing of the defence of diminished responsibility, the amendment, or something like it, would provide the only means of rescuing our law from the charge of barbarism that it will undoubtedly attract if the Bill goes forward in the form which the Government propose.

Photo of Lord Stewartby Lord Stewartby Conservative

My Lords, this is not a subject to which I gave much thought before this afternoon. I was not clear what my view ought to be about it and I thought that I would attend your Lordships' House to listen to the debate. It happens that this is one of the most remarkable occasions that I have ever experienced in this House in almost 20 years. The noble and learned Lord, Lord Lloyd, has made a powerful case, and it has been backed-up by an amazing range of different experience and recollections of different circumstances.

If there is a political angle to this, it is pretty flimsy because the role of the jury that is proposed here would guarantee popular consent. Those on the Front Benches may produce ideas that have not occurred to me but, on the basis of the debate that I have heard, I am very much minded to support the amendment.

Photo of Lord Newton of Braintree Lord Newton of Braintree Conservative

My Lords, my brief intervention from these Benches will be on the same lines as those of my noble friend Lord Stewartby and, indeed, the noble Lord, Lord Low. I ought to confess that, like them, I did not hear every word of the opening remarks of the noble and learned Lord, Lord Lloyd of Berwick, but I have listened to the rest of the debate and think that the weight of support for the amendment is really very impressive and almost convincing in itself.

The only other point that I want to make is that no doubt those who do not favour this amendment will argue, as I think the noble Lord, Lord Pannick, did, that this is somehow going soft on something. I merely observe that as everyone knows that a mandatory life sentence does not mean what it says, some cynicism is generated by the defence of a proposition that does not mean what it says. Taking a more realistic approach to the law and the situation is both sensible and right.

Photo of Lord Neill of Bladen Lord Neill of Bladen Crossbench

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—

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

Does the noble Lord accept that the prosecuting counsel could certainly challenge the facts from which the defence was seeking to draw extenuating circumstances, although he might not be obliged or able to address the jury on whether they were extenuating circumstances or not. However, he could certainly challenge all the facts.

Photo of Lord Neill of Bladen Lord Neill of Bladen Crossbench

That is what I said. The prosecuting counsel would have a role as a challenger of fact.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour

My Lords, I, too, apologise for missing the earlier part of the debate, but in the summer I read the letter of the noble and learned Lord, Lord Lloyd, where he advanced the most convincing arguments for the amendment that he has now put forward and on which I wrote to him in support. In a lifetime of practice involving many murders, the usual issue is whether it was murder or manslaughter. I have long believed that there should be one law of homicide, as Lord Lane, a former Lord Chief Justice, adumbrated more than 20 years ago. Therefore, I fully support the amendment tabled by the noble and learned Lord, Lord Lloyd, which seeks to deal with the too blunt instrument that we now have.

Photo of The Bishop of Ripon and Leeds The Bishop of Ripon and Leeds Bishop

My Lords, unlike most of the speakers in the debate, I have never studied criminal law, but I have considerable experience of seeking justice and what that means. This amendment is based around the concept of justice and I support it for that reason. Our criminal law is based on justice, but justice is a far wider concept than simply that of our criminal law. If we are to put that concept and idea of justice into real effect in our society and therefore within our law, it will need at least to include both verdict and sentence. In this debate and in the discussion that preceded it, the danger is that we shall have verdicts that are just but sentences that are not. That cannot lead to a sense of justice in the community.

A sentence of life imprisonment is rightly an extremely serious sentence. The problem with the present law is that it can bring that sentence into disrepute. We have heard terms such as "fiction" and "conspiracy" used about the present law during this debate. That cannot be right. We need to have confidence in both judge and jury; I was powerfully influenced by what the noble and learned Lord, Lord Mayhew, said on that matter. If we are to have that confidence, I believe that this amendment or something like it needs to be put on to our statute book in the cause of justice.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Shadow Minister, Business, Shadow Minister (Business, Innovation and Skills) 5:45 pm, 26th October 2009

My Lords, the noble and learned Lord, Lord Lloyd, has made his case in characteristically eloquent terms. I came into this debate ready to listen. I have listened carefully because, like the right reverend Prelate, we all want to see justice. Whereas the noble Lord, Lord Goodhart, said that if we pass this amendment it would simplify the law, I must say that, as a result of the speeches that we have heard, I am well aware that it would hardly do that. However, many noble Lords feel strongly that this change should be made.

The idea that the jury can add a rider to its verdict is an interesting one, which I recognise has considerable support around the House. Indeed, I agree with my noble friends Lord Stewartby and Lord Newton that the tenor of the debate has been in that direction and I greatly respect my noble and learned friend Lord Mayhew of Twysden in what he said. But the addition to English law of what is in effect an additional verdict is, we have to recognise, an innovation.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

Does the noble Lord recollect that, when murder was a capital offence, a jury was able to give a recommendation for mercy, which was usually acted on by the Home Secretary of the day?

Photo of Baroness Murphy Baroness Murphy Crossbench

I am sorry to interrupt the noble Lord. I think that he will find that it is the jury that finds for diminished responsibility as well. The judge recommends, but it is for the jury to find. It is a different verdict.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

I am sorry also to interrupt the noble Lord to make a brief point. Does he accept that, in the case of the defence of provocation, which is plainly an extenuating circumstance, it is the jury that now takes the decision as to whether there has been sufficient justification? The jury does so, of course, in the light of advice given by the judge, but it is definitely the decision of the jury. Why should the power of the jury in relation to that particular extenuating circumstance not extend to other extenuating circumstances as well?

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Shadow Minister, Business, Shadow Minister (Business, Innovation and Skills)

Yes, I accept what the noble Lord says and, so far as the noble Baroness is concerned, we are about to come to a series of extended debates on developmental immaturity, diminished responsibility, gross provocation, sexual infidelity, proximity of qualifying triggers et cetera. These are issues that we are going to discuss in much more detail. All I will do is repeat that what is in effect an additional verdict is an innovation; it would have serious and far-reaching ramifications, about which the noble and learned Lord said he was well aware.

The first and most obvious is that the noble and learned Lord's amendment would all but do away with the concept of the mandatory life sentence. Many noble Lords have spoken with eloquence about the need in effect to do that or to recognise that it has virtually disappeared as it is. That, I suppose, is another issue to which we will return. But if the jury was to return a verdict of guilty but with what are called extenuating circumstances, under subsection (3) of the new clause proposed in the amendment the judge would not be obliged to pass a long sentence, notwithstanding subsection (4), which would demand that a judge in such circumstances would have to state his reasons for choosing another sentence. However, we would still be confronted with a situation where a verdict of guilty to murder would not necessarily attract a life sentence. That, therefore, would be the end of the mandatory life sentence.

I look forward to hearing what the Minister has to say, but if Parliament was minded to take a step such as this, it should do so only after wide consultation and a full debate on the merits of sentencing provision. If we were to accept the noble and learned Lord's amendment, we would be sidestepping the issue of the mandatory life sentence. I should say to the noble and learned Lord—although he seemed to be well aware of what I was about to say before I stood to make this contribution—that we on these Benches would not wish to do so because we are in favour of keeping the mandatory life sentence and the amendment would undermine that.

I am puzzled, too, as is the noble Lord, Lord Clinton-Davis, by subsection (2) of the proposed new clause, which would allow the judge to withhold giving a direction to the jury that it may return a verdict with a rider of extenuating circumstances if he or she feels that a reasonable jury would not do so on the evidence. I ask: what is a reasonable jury? The noble and learned Lord said that it is just a case of looking it up in the Oxford English Dictionary. I have on many occasions looked in that dictionary to find a variety of definitions, but I am not quite sure what this would prove or disprove. Surely if we trust in the way our jury system works, any given jury has to be treated as reasonable. So what grounds would the judge give for withholding his direction? Would it depend on the nature of the evidence or on the nature of the jury? The noble Lord was right to express this, although he gave us to understand that he had already been satisfied by the addition of an amendment.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

Do I understand that the noble Lord is arguing that what I propose is fine? Would he support the proposal put forward by the noble and learned Lord, Lord Lloyd of Berwick?

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Shadow Minister, Business, Shadow Minister (Business, Innovation and Skills)

All I am saying at this stage is that the noble Lord is right to point out the difficulty of understanding what "reasonable" means in these circumstances.

How would the conflict that the noble Lord and I have identified be resolved? Would we see inconsistencies in verdicts emerge in different parts of the country unless a standardised view of what is a reasonable jury is formed? The mandatory life sentence at least has the virtue of being consistent.

On the issue of consultation, I know that the noble and learned Lord, Lord Lloyd, does not pursue this matter lightly; I know and admire the formidable amount of time, thought and energy that he has devoted to developing his arguments, as we saw with the contributions of many noble Lords. But such a move as his amendment would require in the operation of the system of jury verdicts and in changes to the law on sentencing, I hope noble Lords agree, deserves fuller and more public debate. We would gladly participate in any such public discourse, but we firmly believe that we would need to involve all the key organisations—the Bar Council, the Law Society and the Law Commission—far in advance. I say to the noble and learned Lord and to all noble Lords who have participated that it is very important that we have this debate. Noble Lords have conducted it to their usual commendable high standards and I apologise if I do not seek to respond to every point raised but, for the reasons that I have outlined, I cannot at this stage and on this occasion commit the Opposition to supporting the noble and learned Lord.

Photo of Lord Pannick Lord Pannick Crossbench

Does the noble Lord accept that there has been consultation on this issue for the past 20 years and that the views of all professional organisations have been absolutely clear? Can he explain why he tells the House that he is in favour of the mandatory life sentence? What is the reason for retaining it?

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Shadow Minister, Business, Shadow Minister (Business, Innovation and Skills)

I am talking about public consultation on this proposal and I do not believe that there has been that consultation. All the arguments in favour of maintaining the mandatory life sentence are still there and I support them. The nature of the consultation to which the noble Lord referred does not include consultation on this proposal, which I think is sorely needed.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

My Lords, my name is attached to the amendment and I was delighted to hear the noble Lord, Lord Hunt, call for a wider and fuller debate, with key organisations consulted, on the reform of the law of homicide, which is what should happen. In this instance, the Law Commission has been confined in its consideration by the presupposition that the mandatory sentence would remain and has produced a structure from which the Government have chosen one or two things completely out of context and put them into the Bill. The amendment put forward by the noble and learned Lord, Lord Lloyd, undoubtedly would simplify the position completely.

Noble Lords seemed to forget that the partial defences do not arise unless the jury is satisfied that murder has been committed. The first thing of which a jury is required to be satisfied is that the defendant killed the victim, either with the intent to kill or with the intent to cause him serious harm. It is only at that point that the judge will ask the jury to consider whether a partial defence arises. If it is the defence of provocation, the judge will not ask the jury to consider it unless he considers that a reasonable jury, properly directed, could return that verdict. The direction that the judge will give is encapsulated in Clause 48(6), where the Government trample on provocation. I shall come back to that. Subsection (6) states:

"For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply".

That is the word that the noble Lord, Lord Clinton-Davis, would prefer. The law at the moment takes into account what a reasonable jury might or might not conclude before the judge will leave to it the possibility of returning a verdict of manslaughter rather than murder, either on the grounds or provocation or diminished responsibility. The essential thing is that murder must be proved first. It is then called by a different term—manslaughter—if the prosecution fails to disprove one or other of the partial defences that the judge has concluded the jury might reasonably consider on the evidence adduced in the case.

The amendment proposed by the noble and learned Lord, Lord Lloyd, envisages that a jury should still convict of murder if the ingredients of murder are satisfied—that a person has killed with intent to kill or to cause serious or grievous bodily harm. So the defendant would still be convicted of murder as opposed to manslaughter. However, in a case where the judge thinks that it is reasonable so to conclude on the evidence adduced, the jury could say that there are extenuating circumstances. This would open it up to the judge to pass a sentence other than the mandatory life sentence, which is, of course, the stumbling block to all proper reform in this area. I do not want to repeat everything that has been said by noble Lords; I just wish to endorse it from long experience.

If the argument advanced by the Attorney-General in Committee is the only one on which the Government found their resistance to the amendment—they question what such circumstances amount to—one has only to consider what sort of concepts a jury has to grapple with not only in the current law of provocation but in the law as redrafted by the Government. Under Clause 48, the jury has to grapple first with whether the defendant's acts or omissions in doing or being a party to the killing resulted from the defendant's loss of self-control, whether that self-control had a qualifying trigger—I shall come back to that—and then whether,

"a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D".

A jury has therefore to go through all this process of putting itself in the position of that defendant and then, acting as the embodiment of the reasonable man, to consider, "Well, would I have done that if I had been in the position that the defendant was in, bearing in mind his age and sex?".

It is a very difficult concept, but the jury's task does not stop there, because it has to look at the "qualifying trigger", which is, for example, that the,

"loss of self-control was attributable to a thing or things done or said (or both) which ... constituted circumstances of an extremely grave character, and ... caused D to have a justifiable sense of being seriously wronged".

So the jury then has to consider a "qualifying trigger", "extremely grave character", and,

"justifiable sense of being seriously wronged".

Then, by way of a final kick before that clause is left, it has to exclude anything that constitutes sexual infidelity—we shall come back to these arguments at a later stage.

At the moment, the law is intensely complicated and requires the jury to conduct all sorts of difficult intellectual exercises, but, as proposed by the Government, it gets even worse. This is all to reduce the conduct of the defendant from murder, so that he is no longer called a murderer but is called somebody guilty of manslaughter, and to enable the judge to pass a sentence that he thinks is appropriate in the case. Under the amendment tabled by the noble and learned Lord, Lord Lloyd, the judge would be obliged to take into account what the jury, as the representatives of the people, thinks are extenuating circumstances. The judge does not have to agree under the amendment, but he would no doubt take very much to heart what verdict was proposed.

The law of murder is in a mess; it requires complete restructuring. It requires getting away from the mandatory life sentence—a political football that has been knocked around for so long—and it demands a rational approach. The nearest within the context of the law at the moment that you can get to a rational approach is for your Lordships to accept the amendment that the noble and learned Lord, Lord Lloyd, has moved.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 6:00 pm, 26th October 2009

My Lords, I thank the noble and learned Lord, Lord Lloyd of Berwick, for moving the amendment. I also thank all those who have spoken in what, as the noble Lord, Lord Hunt, said, has been a good debate on a very important topic. Widespread support for the amendment has been expressed around the House and one can understand why it appears attractive. However, this is not an amendment that the Government can accept. Perhaps I may explain in a few words, because this has been a long debate, why that is so.

This debate is about the effective abolition of the mandatory sentence. When the noble and learned Lord, Lord Lloyd of Berwick, moved an equivalent amendment in Committee, he said:

"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".—[Hansard, 30/6/09; col. 151.]

He has moved the same amendment with great eloquence again today. However, if it is passed, it will in practical terms abolish the mandatory sentence. There are many commentators, both inside and outside this House, who would like the mandatory sentence abolished—I appreciate that and accept it at once. There are also others who do not think that we can take that step quite so easily as doing it through an amendment to this Bill. I agree with the noble Lord, Lord Hunt of Wirral, that there needs to be a full debate about whether the mandatory sentence should stay before we effectively abolish it, because that is what we would do if we voted for the amendment tonight.

The mandatory sentence is not just or at all to do with trying to keep in with the popular press—my goodness, if my party was trying to keep in with the popular press, it is not making much of a job of it at the moment. It is much more to do with reflecting the seriousness of killing with an intention at least to cause the victim serious harm and, in most cases, death. Whether we like it or not, the public rightly regard murder as a particularly abhorrent crime, and the mandatory life sentence in some way reflects society's disapproval. There may well be good arguments against a mandatory system, but we should not abolish it in this way.

The law of homicide is an important and sensitive area where it is critical that we do our best to get things right. We as a Government have proceeded in a particular way with a staged reform of the law, undertaking extensive consultation with stakeholders along the way. My noble and learned friend the Attorney-General reassured the House in Committee that we will look at the commission's other recommendations, in particular those for a new structure for homicide in due course, in the light of the effect of any changes arising from this stage of the work.

In that context, the law already provides, and under our proposals will continue to provide—we shall debate that later this evening—partial defences to murder which can reduce murder to manslaughter. Murder is not reduced to another term but to another offence, manslaughter, in those tightly defined circumstances where as a society we feel that it should be open to the judge to have a wider range of sentencing options.

However, the "extenuating circumstances" amendment goes much further than this. In the words of the Law Commissioner, Professor Jeremy Horder, it would, if passed,

"effect the most radical shift in the law in favour of convicted murderers since the abolition of the death penalty".

The amendment provides that in homicide cases the judge has the power to direct the jury that, when finding a defendant guilty of murder, it should be open to them to find simultaneously that there were "extenuating circumstances". In those circumstances, the judge would then be permitted to impose a sentence other than life imprisonment, which means that a sentence other than life could be passed on a person convicted of murder, which means that the mandatory sentence is dead.

In Committee, it was argued that this amendment was an elegant way—and indeed, it has been argued extremely elegantly—of giving the judiciary greater discretion without removing the mandatory life sentence altogether. Personally, I prefer Law Commissioner Professor Jeremy Horder's more frank appraisal of its effect, that,

"the new approach rips the heart out of the mandatory sentence".

That is strong language, but can anyone who has listened to this debate not think that that is what passing this amendment would do? We oppose any amendment that would do away with the concept of the mandatory life sentence, whether by the front door or by the back door.

Here I risk offending, without meaning to, the noble Lord, Lord Pannick, but on this proposal, as the noble Lord, Lord Hunt, said, there has been no consultation with the wide range of interested stakeholders who have been involved in the development of our proposals. In an area such as homicide, where reasonable people disagree so strongly, and where the timetable for change has been sufficient to offer every opportunity for the engagement of stakeholders, effecting such a radical change, as this would be, without due consultation, is unacceptable.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

Is not the real truth that, whatever the time and whatever the circumstances, my noble friend would oppose any change along these lines? Would it not be more accurate to say exactly that than to say what he has just said? Why cannot he say, having listened to this debate, in which noble Lords all around the Chamber have expressed support for the amendment proposed by the noble and learned Lord, Lord Lloyd, that he will look at the debate and come back to it later on?

Photo of Lord Tunnicliffe Lord Tunnicliffe Government Whip, Government Whip

My Lords, I remind noble Lords of the statement in the Companion on the interruption of speeches. At paragraph 4.37, it says:

"A member of the House who is speaking may be interrupted with a brief question for clarification ... Lengthy or frequent interventions should not be made, even with the consent of the member speaking".

I hope that noble Lords will reflect on that before we have more interruptions that are neither brief nor clearly just for clarification.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I come back to my noble friend's comment. Of course I welcome this debate, which is part of the wider debate that we should be having on the law of murder. I cannot but believe that, when we come to have that wider debate, the debate in this Chamber this afternoon will be like a textbook for it. It will certainly be considered important. This debate is part of a wider debate, without any doubt, but I do not think that I could have been much clearer in stressing why the Government disagree with the amendment. What it actually does is to abolish the mandatory life sentence once and for all. It is a radical measure—and, once it came in, there would be no turning back from it.

In conclusion, I return to the heart of the issue. As has been said:

"Either the mandatory sentence stays or it goes".

We do not think that this particular way of circumventing it is a solution to the problem. Those were, again, the words used by Professor Horder of the Law Commission in response to this amendment—and we agree.

Before finishing, I shall make two very small points on the amendment. I do not want to waste the House's time, but one part of the amendment refers to the Attorney-General's powers. She would have powers in any event, whether or not that was in the amendment. I know that the noble and learned Lord says that, but it is obviously there for the sake of completeness. There is a slightly greater problem with what she would be able to do in the event of a sentence being appealed against for being too lenient. She might not be able to challenge the extenuating circumstances finding, which would go to the heart of the non-life sentence, because that finding would be part of the verdict about which she has no concern at all, as part of her powers, rather than the sentence itself. I think that that point may be accepted around the House.

For the reasons that I have stated, we cannot support the amendment in the name of the noble and learned Lord.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee) 6:15 pm, 26th October 2009

My Lords, we had a remarkable debate in Committee on this amendment, and have had an even more remarkable one this evening. I am grateful to the noble Lord for his reply. However, this is not an amendment to abolish the mandatory life sentence. I disagree, as he knows, with Professor Horder, when he says that it would rip,

"the heart out of the mandatory sentence".

It would do no such thing. It provides a limited exception to the mandatory life sentence, just like the existing limited exceptions of the partial defences of provocation and diminished responsibility.

I thank all those who have supported the amendment. I am particularly grateful for the psychiatric support of the noble Baroness, Lady Murphy, the philosophic support of the noble Baroness, Lady Warnock, and the theological support of the right reverend Prelate, and for having converted the noble Lord, Lord Stewartby. Perhaps the noble Lord might go and convert some of his fellow Back-Benchers, and we might then have a chance of winning this debate. In the mean time, I wish to take the opinion of the House.

Division on Amendment 56

Contents 113; Not-Contents 155.

Amendment 56 disagreed.

Division number 2 Coroners and Justice Bill — Report (2nd Day)

Aye: 111 Members of the House of Lords

No: 153 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Clause 46 : Persons suffering from diminished responsibility (England and Wales)

Amendment 57

Moved by Lord Hunt of Wirral

57: Clause 46, page 27, line 28, at end insert—

"(1ZA) A person ("D") who kills or is party to the killing of another is not to be convicted of murder if D was under the age of eighteen and his developmental immaturity—

(a) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and

(b) provides an explanation for D's acts and omissions in doing or being a party to the killing."

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Shadow Minister, Business, Shadow Minister (Business, Innovation and Skills) 6:28 pm, 26th October 2009

My Lords, Amendments 57, 58 and 59 would add to Clause 46 another category of persons to whom the partial defence to murder of diminished responsibility should apply. That category is, in short, children or young persons under the age of 18. The reasoning behind this is straightforward. The partial defence of diminished responsibility is available under Clause 46 to a person who is suffering from a mental abnormality that arises from a recognised medical condition, which impaired his or her ability to act as one would expect a person to act without such an abnormality in a way that explains why the murder took place. For example, a 40 year-old man who had the mental capacity of 12 year-old child would be able to draw on the partial defence. The amendments try to address an anomaly. While the hypothetical 40 year-old would have a partial defence because he could not help but act as a 12 year-old, a child who was actually 12 years old but with no medical condition, who acted in the same way, would not have recourse to the same partial defence.

This is not an unreasonable thing to take into consideration. It is quite possible that a 12 year-old child may not, simply as a result of his age and developmental immaturity, have the capacity to understand his conduct in a way that we would expect of an adult. Therefore, the amendment does not simply provide a get-out-of jail-free card for young people who have committed the appalling crime of homicide. They must still be able to show that the degree of their developmental immaturity was such that they could not without impairment fulfil the requirements of proposed new subsection (1A):

"(a) to understand the nature of D's conduct;

(b) to form a rational judgment;

(c) to exercise self-control".

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

My Lords, is there in any legislation the provision for developmental immaturity? I would be very interested to hear about that.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Shadow Minister, Business, Shadow Minister (Business, Innovation and Skills)

My Lords, I am unaware that there is any direct precedent for this amendment. However, we are seeking to probe and hear from the Government as to how they will deal with the circumstances that I have just outlined. I hope the noble Lord, Lord Clinton-Davis, understands that that is our approach.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

My Lords, I beg the noble Lord's pardon, but are the Government themselves not introducing in this clause the defence of developmental immaturity?

Photo of The Earl of Listowel The Earl of Listowel Crossbench

My Lords, I have misunderstood; I apologise and withdraw what I said.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Shadow Minister, Business, Shadow Minister (Business, Innovation and Skills)

My Lords, I agree with the noble Earl: it is quite difficult to get one's head around exactly what this amendment seeks to do. I suppose I am trying to emphasise that there should still be a high bar to overcome before the defence could be successfully deployed. Even if it was successful, noble Lords must remember that Clause 46 allows a partial, not a full, defence. The conviction is not overturned but reduced from murder to manslaughter. That is important because, as noble Lords well know, a conviction for murder attracts the mandatory life sentence, whereas a broader range of sentences—which may be more appropriate in the circumstances—are available for manslaughter.

These amendments were proposed by the Standing Committee for Youth Justice in an effort to give effect to the Law Commission's recommendation in its 2004 report, Partial Defences to Murder, which was itself designed to bring the criminal law into compliance with Article 40 of the United Nations Convention on the Rights of the Child. In Committee your Lordships gave these and other similar amendments a full and considered debate. I think considerable support was then voiced around the House for them. I therefore hope that the Minister and his colleagues have been able to reflect on these amendments over the summer and will give them a serious hearing. I beg to move.

Photo of Baroness Murphy Baroness Murphy Crossbench

My Lords, I support this amendment. The problem is to do with so-called normal children. The noble Lord has already talked about the partial defence that is available to the mentally handicapped adult who is intellectually functioning, or who may have a developmental delay in other emotional areas as a result of learning disabilities, for example. The law provides for that, but developmental delays are quite frequently seen in perfectly normal children. Children all develop at different rates in different parts of their brains. Heavens, I could talk about the development of the medulla being at a different stage to that of the frontal lobe, and at a different stage to the parietal lobes, but I do not think that I need to. All noble Lords who have had children and adolescents around the house will know very well that there are different stages. It is normal for children to have different stages of developmental maturity at different ages in the course of growing up.

All the amendment seeks to do is to allow for children without obvious profound developmental delay or learning disabilities to be considered in respect of those areas where they may have very specific emotional or developmental problems. Really, it would allow them to be treated in the same way as adults. As the noble Lord, Lord Hunt, has said, this does nothing to lower the bar and, indeed, still allows a court to find murder in the right circumstances and diminished responsibility in others. This amendment would allow for a very small group of children and adolescents to be treated more appropriately, given that we have now given up the doli incapax provisions, and the difficulties that children now face before the courts.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

My Lords, I have my name attached to the amendments, and I strongly support them. It is hard to follow the eloquent and pithy contribution from my noble friend, with all her experience in psychiatric matters. As vice-chair of the All-Party Group for Children and Young People in Care and a trustee of a fostering agency, I am particularly concerned that children who have experienced trauma may not be recognised or caught by the system. We should treat all our children fairly and, in particular, take care to treat our neglected children fairly.

I will never forget hearing from a 20 year-old ex-offender—a young woman—about her experience of being removed from her children's home at the age of 14. She was told on the day of her removal that she was to be given another placement, having settled and become attached to where she was. She was then forcibly removed from her children's home. At the age of 20, when she spoke to parliamentarians in the House, she said that she dated her history of criminal activity from that experience. On another occasion I heard another young woman describing her experience in a children's home. It was as if she was describing a waiting room for prison. Children develop differently, as my noble friend has said. Neglected children can follow particularly tortuous lines of development. These amendments seek to recognise that. It is possible to be developmentally immature without having a recognised abnormality of mental functioning. The law needs to recognise this.

In April of this year, at a one-day legal conference organised by the Michael Sieff Foundation, Lord Justice Toulson, chairman of the Law Commission, described the omission of these amendments as "significant". He said:

"The inclusion of the phrase 'a recognised medical condition' in the definition of diminished responsibility would represent a tightening as well as a clarification of the defence, but to include that requirement while excluding developmental immaturity in the case of a young offender has consequences which I do not think could have been thought through. It produces the bizarre result that if a 25 year old killer has the developmental age of a 12 year old ..."

Here I end the quotation because I think we have already covered that point. The point here is that Lord Justice Toulson, the chairman of the Law Commission, in referring to the current clause, talks about,

"consequences which I do not think could have been thought through" and uses the term "bizarre" in describing the way that the commission's recommendations on this matter have been treated.

I strongly support the amendments and hope that the Minister may now agree to them. I have good reason to hope that he might, given the achievements for children, particularly vulnerable children, that he and his colleagues have been responsible for over the past 10 years. I look forward to his response.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, I think we all feel horror at gangland killings by young people, but one has to put them to one side when discussing this amendment; one also has to remember that children of 10 are convicted of murder. Perhaps some children of that age should be convicted of murder, but others undoubtedly should not. To have a child of 10 detained for an indefinite life sentence is something that we ought to have in mind.

It is important that the emotional and physical immaturity of young people who kill should be taken into account. There is a lacuna in the law, which this amendment deals with. As several people have said, why should you be able to pray that immaturity in aid if you are over 21 but not do so if you are 14? There seems to be something grossly unjust in that. I, too, support the amendment.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

I am afraid I do not. I have a great deal of sympathy with the argument that is being adduced, but in my view the law has to be precise. The term "developmental immaturity" has no precedent, is not precise and ought to be rejected. The arguments that have been put forward invite us to visit the situation again, but that term has to be considered and revised. The one thing that I think about the law is that it has to be precise, but with the use of this term we are invited to amend the law in an imprecise way. I reject that proposition altogether.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

My Lords, my name is attached to this amendment. I remind your Lordships of what I said on the previous amendment: nothing could be more imprecise than the words that are used in the proposed Clause 48 on provocation, or indeed more imprecise than the concept of provocation in the law as it exists at the moment. It has been through the courts over and again in an attempt to derive some clarity for the concept, yet the Government stay with it. So I am not moved by the suggestion of the noble Lord, Lord Clinton-Davis, that "developmental immaturity" is an imprecise term. Certainly the Law Commission, after looking at the whole of the law of homicide, came to the conclusion that the term could be the basis of a partial defence, in its Partial Defences to Murder published in 2004.

It is not just developmental immaturity that is at issue. The partial defence does not come into play unless it is shown that that developmental immaturity substantially impaired the defendant's inability to do one or more of the things that are mentioned, as in the proposed diminished responsibility clause; provides an explanation for his acts or omissions; and, further, that it is a significant contributory factor in causing the defendant to carry out the conduct in question. There are all sorts of hoops to get through.

I remind your Lordships that, again, it being a partial defence, the jury do not get to consider it unless they are satisfied that the defendant has killed someone with the necessary intent to kill or to cause serious bodily injury. That is the precondition before they even look at the developmental immaturity that is referred to here. This is a perfectly correct and proper amendment in principle and we will support it from these Benches, notwithstanding the Division that has recently occurred.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 6:45 pm, 26th October 2009

My Lords, Amendments 57, 58 and 59 in the name of the noble Lord, Lord Hunt of Wirral, deal with the important question of developmental immaturity in the context of the diminished responsibility partial defence to murder. We remain unpersuaded of the need for the amendments, and I will do my best to explain why.

The current reform of the partial defence to murder of diminished responsibility is designed to modernise the law; we do not intend it to change its scope fundamentally or at all. We do not believe that the law needs to be opened up in the way proposed. Interestingly, I can pray in aid the Criminal Bar Association, which takes the same view on this issue. Originally it supported the inclusion of a developmental immaturity clause in the diminished responsibility partial defence to murder, but it changed its position when responding to the consultation and now considers that it is not necessary.

Let us put that to one side, though, and deal with the issue. The current law of diminished responsibility does not include any such concept as developmental immaturity, and we have not been shown any convincing evidence of a problem with its absence. The new formulation in these clauses is based on the concept of a recognised medical condition. We do not consider that the defence of diminished responsibility should be available where no such medical condition is present.

It has been argued that that is unfair to juveniles, as it will be harder for them to benefit from the defence of diminished responsibility than for adults to do so. We do not accept that either. Where a defendant under 18 has killed, he or she may be able to benefit from the partial defence if they are suffering from a recognised medical condition. In many cases where the child defendant could be described as being developmentally immature, this immaturity will have resulted from a recognised medical condition; for example, learning difficulties, autistic spectrum disorder or frontal lobe disorder. One might characterise that as "abnormal" immaturity.

It has also been argued that a normal 10 or 11 year-old who must face the full force of the law is disadvantaged when compared with an adult with a recognised medical condition who functions similarly to a 10 or 11 year-old child and may succeed with a diminished responsibility partial defence. We think that there are some problems with that argument. First, it is not realistic to talk about people behaving in a way consistent with a particular age; behaviour varies so much, both between and within individuals of the same and different ages, that we are not sure that the concept is helpful.

Secondly, the reason why the adult in this scenario benefits from the partial defence is not that he is behaving like a child but because his medical condition results in a mental abnormality substantially impairing his ability to make a rational judgment, understand the nature of his conduct or exercise self-control. On the other hand, a child who is developmentally immature but who has no recognised medical condition is not suffering in this way; they are, as it were, "normally" immature.

In any event, we argue that this does not constitute an argument for a developmental immaturity limb to the partial defence to be added but, rather, for a change in the age of criminal responsibility. That is not a matter up for discussion today with regard to any amendments. It certainly was in Committee; I think it was the noble Baroness, Lady Murphy, who introduced such an amendment. If this is really an argument about the age of criminal responsibility, that is a different matter altogether. I do not believe that the noble Lord is arguing for such a change.

It has also been argued that clinical experts are not able to diagnose certain conditions in those under 18 where, if an adult displayed similar characteristics, this would result in a diagnosis of a recognised medical condition. However, we know that in practice the psychological conditions in relation to which this argument is made—for example, various personality disorders—are diagnosed in juveniles, so we do not think this is an insuperable difficulty.

It is our view that where a child over the age of criminal responsibility kills, they should be held fully responsible for their actions unless they are suffering from a recognised medical condition even if they are immature for their age. A developmental immaturity limb in the diminished responsibility partial defence would have a number of significant disadvantages. Let us suppose that a teenager, in a fight with another teenager, pulls the knife he routinely carries and stabs to death the other youth. He could potentially argue the defence even if he has no medical condition but is simply immature for his age, however that immaturity might be explained or described. We do not believe that a partial defence to murder should be even potentially available in such circumstances.

Again, we are concerned that young defendants would routinely seek to plead the partial defence, even in cases manifestly lacking any merit. The courts would be required to contend with this and it would inevitably lead to delays and unproductive use of criminal justice services. In 2007, 38 trials and 26 convictions involved homicide where the defendant was under 18, so the number of cases likely to be affected is significant. Importantly, we have not seen evidence that the absence of a developmental immaturity limb in the current law has resulted either in injustice or practical difficulties. For these reasons we oppose the amendment and invite the noble Lord to withdraw it.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Shadow Minister, Business, Shadow Minister (Business, Innovation and Skills)

My Lords, I am grateful to the Minister for his response and to other noble Lords for their contributions. The Minister recognises that we are merely trying to reinsert a recommendation of the Law Commission. As the noble Baroness, Lady Murphy, said, the omission of developmental immaturity from Clause 46 is particularly serious in the context of the abolition of doli incapax. We have discussed this matter previously. I hope that the Minister accepts the reasoning behind the amendment. We shall consider carefully all the points he has raised and reflect on them. In the mean time, I beg leave to withdraw the amendment.

Amendment 57 withdrawn.

Amendments 58 and 59 not moved.

Clause 48 : Partial defence to murder: loss of control

Amendment 60

Moved by Lord Hunt of Wirral

60: Clause 48, page 28, line 31, at end insert "caused by gross provocation"

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Shadow Minister, Business, Shadow Minister (Business, Innovation and Skills)

Amendment 60 seeks to add to Clause 48 the words "caused by gross provocation" as an explanation of why the defendant lost control and killed his victim. This is more a question of language than substance, but it is no less important for that. I recall that in Committee the noble and learned Baroness, Lady Scotland, pointed out that Clause 49(4) contained a qualifying trigger to the defendant's actions if his loss of self-control was attributable to,

"a thing or things done or said (or both) which—

(a) constituted circumstances of an extremely grave character", and, (b), caused the defendant,

"to have a justifiable sense of being seriously wronged".—[Hansard, 7/7/09; col. 582.]

The noble and learned Baroness suggested that while the words "gross provocation" were not mentioned anywhere, their meaning was none the less captured by that subsection. I do not disagree with that analysis but I still feel that the term "gross provocation", which is long established and well understood, is worth preserving in the body of legislation. I believe that the term is more easily understood by a jury than the term "loss of control", which, without the necessary qualifications and explanations, sounds more anodyne than the behaviour we are describing.

I understand that the General Council of the Bar shares this concern and that it suggests that "loss of control" will not convey the right message. In its view, and ours, "loss of control" does not convey the same standing or high threshold as "gross provocation". For that reason we urge the Government to reconsider the Bill's drafting in this area. The amendment does not seek to change the substance of the partial defence but rather its description. Words are important and can play a role in informing perceptions. If the Government do not wish to change the drafting at this stage, the House would very much welcome a clear statement from the Minister on how "loss of control" will be interpreted in practice. For the reasons I have given in introducing Amendment 60—namely, that we are concerned about the interpretation of "loss of control" rather than whether the new partial defence is sound—we cannot support Amendment 61 tabled by the noble and learned Lord, Lord Lloyd of Berwick.

We have said at every stage that we regret how the Government are introducing these reforms. This should have been a Coroners Bill, a Reform of the Law of Murder Bill or any number of separate Bills. The Bill lumps together wildly disparate topics as the Government try to spatchcock in as many ideas as they can while they can. Perhaps I am being too cynical, but the reform of the law of murder and the partial defences which we are seeking and debating are huge and important topics that deserve full parliamentary scrutiny. However, we have the Bill that the Government have presented to us, and we accept the changes that these clauses seek to make. I hope the noble and learned Lord, Lord Lloyd, accepts that we do not believe that we should remove the clause from the Bill, but we have considerable reservations about it. I beg to move.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee) 7:00 pm, 26th October 2009

My Lords, my amendment is grouped with this one, but I shall first address the Conservative amendment, which is good as far as it goes, but, as I hope to show, it does not go anything like far enough. My only comment at this stage is that if the Conservatives press their Amendment 60, they ought logically to support my Amendment 64; otherwise, they will reintroduce the concept of provocation by their amendment without any definition of what they mean by "provocation". They cannot rely on the common law definition of provocation or on Section 3 of the Homicide Act 1957 because they will have been repealed, unless they support my amendment. I look forward with great interest to see how they deal with that conundrum. It seems to me that they have probably argued themselves into a corner from which it may be difficult for them to get out.

On the broader question of whether we should leave Clauses 48 and 49 in the Bill, my view is that they are beyond redemption. But I should have supposed that the Conservatives would also have wanted to leave those clauses out, for this reason: they presumably intend—perhaps they hope—to win the next election. If they do, they will have to grapple with the main recommendations of the royal commission report on homicide, which the Government, to their shame, have so far ignored or at least done nothing about. If the Conservatives win the election and if they decide to support the proposals of the royal commission they will have to revisit the partial defences, including the partial defence of provocation. But, surely, it would be madness for them to agree to an amendment on provocation now and then seek to amend again in two or three years' time in the light of the new structure of homicide. Logically and sensibly—if they were logical and sensible, which I doubt—they should support Amendments 61 and 63.

Clause 48(1)(a) and (c) contain a succinct account of the law relating to provocation, which provides an objective test—the test of a reasonable man—which is so familiar to the law. If the jury decides that, as reasonable men and women, it would have lost its self control and done as the defendant did, the partial defence succeeds. The defendant is then convicted of manslaughter and sentenced accordingly. Currently, that test is being applied up and down the country. Since the case of Holley, which was decided by nine Law Lords in 2005, it is not causing any great difficulty—indeed, no difficulty at all so far as I am aware.

However, the Government in their wisdom have decided that juries are somehow getting it wrong. In their view, too many men are getting off light. They ought to be convicted of murder when they are being convicted of manslaughter. On 7 July, at col. 582, the Attorney-General said that in this day and age people ought to be able to control their anger. But the defence does not succeed just because the defendant kills in anger, it succeeds only if the jury, as reasonable men and women, would have done as the defendant did. If that is so—I see no evidence that it is not—why do we need a qualifying trigger? The answer is that we do not. The Government have simply not made out a case that the law as it stands is too favourable to men and women. The October issue of the Criminal Law Review states that making the defence of provocation is "unnecessary, unjust and wrong". I agree with that view.

What will be the consequences if we enact Clause 48? I doubt very much whether it will make the slightest difference. Juries will continue to apply the existing objective test of the reasonable man which they know and understand. I suspect that the Government will fail in their objective, just as they failed in their objective to increase the number of those who are convicted of rape. It will prove to be yet another paper exercise. But in all other respects the consequences will be disastrous. One should put oneself in the position of the jury, which has just been told to apply the objective test of the reasonable man. Only a few moments later, it is told that the test should be applied only if the reasonable man would have had a justifiable sense of being seriously wrong. If I know anything about juries, at that point it will begin to lose the drift. Not only juries will lose the drift, judges too will be mystified.

Judges will have to explain these qualifying triggers in words that the jury will understand. I fear that their attempts to do so will lead to years of appeals. In truth, the reasonable man test, set out accurately in one part of the clause, is inconsistent with the qualifying triggers which are set out in another part of the clause. It is either one or the other. It cannot be both at the same time.

The Government have not only that objective of making it more difficult for men, they also have the objective of making it easier for women to rely on the partial defence. Particularly they have in mind battered wives who kill their husbands after years of abuse. Here, I have every sympathy with the Government's objective, which was one of the reasons why I moved my earlier amendment. But the Government have set out to achieve their objective in the most extraordinary way. They have tried to shoehorn—to use a word used by the Attorney-General—the new partial defence based on fear into the existing partial defence based on loss of control. But that does not work.

The battered wife who decides after years of abuse to get rid of her husband does not lose her self-control. She makes a deliberate decision, which is itself expressly excluded by Clause 48(4). The Government agree that in those circumstances there should be no partial defence. It is only if the battered wife is driven by fear of what may happen in the future that she will have a partial defence. That was made abundantly clear by the Attorney-General on 7 July 2009 at col. 384. But how does the jury begin to distinguish between revenge for the past, which is excluded, and fear for the future, which is the whole object of this proposed amendment? How in either case can it be said that she has lost her self-control, even with the new qualification that loss of control need not be sudden—whatever that may mean? A gradual loss of control still entirely escapes my understanding.

At the end of Committee stage, I quoted the pithy observation of Professor Spencer who said that, if this is the best the Government can do, they would have done better to do nothing. I now quote another pithy observation, from a distinguished practitioner who said that to call this a,

""dog's breakfast" would be a kindness".—[Hansard, 07/7/09; col. 577.]

That was the observation of the noble Baroness, Lady Mallalieu, and I agree with it. I shall not vote in favour of Amendment 60, which seems only to scratch at the surface. However, when the time comes I shall move my own amendment, which would leave the clause out altogether.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

My Lords, I have already indicated to your Lordships that I do not consider the present common law defence of provocation to be a sensible defence. It does not stand up to analysis at all. I happen to think that the Government are making it even worse in the amendments that they are proposing in the Bill. They are using various expressions that are so inadequate and so difficult to understand that a jury could not, for a moment, follow the summing up that a judge would be obliged to give.

I do not need to speak at length on this. As far as I am concerned, the Government are making a major error in trying to use part of the Law Commission's report to amend the law on homicide, instead of either taking or rejecting the whole thing. There have been calls by the noble Lord, Lord Hunt, for a completely new look at the whole thing. I hope that that is still his position; if it is, he will support the noble and learned Lord, Lord Lloyd, in the Division that he has suggested will happen. If the noble Lord does that, it would be quite wrong for any newspaper or journalist to suggest that the Conservative Party had, all of a sudden, become weak on crime.

Had the amendment moved by the noble and learned Lord, Lord Lloyd, been accepted, it would have strengthened the position that a person who committed murder was convicted of murder, even though there might be extenuating circumstances. These partial defences, which change the terminology simply in order to give the judge a wider sentencing power than he presently has with the mandatory life sentence, form what is just a device—and one that has outworn its usefulness. The whole of this should go.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, Amendment 61, tabled by the noble and learned Lord, Lord Lloyd of Berwick, would remove Clause 48 from the Bill. The effect would be to knock out the first part of the proposed partial defence to murder, of loss of control, but it would effectively mean the end of the attempted reform of this part of the law. That is not acceptable.

We understand that for some—I think that the noble Lord, Lord Thomas of Gresford, is one of those—change in the law on homicide has been too slow to come. Many in this House would have preferred to see us deal with all the Law Commission recommendations as one. That has not been done. Instead, we have decided to take a staggered approach, part of which is to take note of our responsibility to take the opportunity that we have today to reform what we consider an outdated piece of law, which many think is a mess.

It is not just us in Government who believe that the current law of provocation is not satisfactory. In its report Murder, Manslaughter and Infanticide, published in November 2006, following extensive consultation with a wide range of stakeholders, the Law Commission said that,

"the partial defences remain misleading, out-of-date, unfit for purpose, or all of these".

Indeed the Law Lords themselves, when they passed judgment in Holley, accepted that the law of provocation was "a mess" and beyond their ability to retrieve. It will be remembered that the noble and learned Lord, Lord Nicholls, in delivering the majority verdict of the nine-member Judicial Committee of the Privy Council in that case, said:

"In expressing their conclusion ... their Lordships are not to be taken as accepting that the present state of the law is satisfactory. It is not. The widely held view is that the law relating to provocation is flawed to an extent beyond reform by the courts ... Their Lordships share this view".

We are convinced that, in today's world, a person should not normally be even partially excused for killing when their actions were prompted by anger. For that reason, we are abolishing the partial defence to murder of provocation, which, in our view, allows for the possibility of defendants escaping a murder conviction and the ensuing life sentence in too many cases where what gave rise to their loss of self-control was not an extremely serious action or series of actions.

We considered going as far as removing a partial defence to murder completely in cases of killing in anger but concluded, as did the Law Commission, that there might be extreme circumstances where injustice would result if a partial defence were never available. For this reason, a partial defence to murder will be available only to someone who kills in anger if the words or deeds causing them to lose their self-control constituted circumstances of an extremely grave character, which gave them a justifiable sense of being seriously wronged, and if a person of their age and sex, and in their circumstances, might have reacted in the same or a similar way.

On the other hand, where a fear of serious violence drives a person to lose their self-control and to kill, we believe that it should be possible for a defendant to plead a partial defence on that specific basis, so long as a person of their age and sex, and in their circumstances, might have reacted in the same or a similar way. The current law is simply not designed to deal with such cases; the courts' efforts to accommodate them have required a strained interpretation of a defence that was always intended to cover killings in anger rather than in fear. This may typically, but not exclusively, arise in situations of long-term abuse, where the victim of that abuse eventually loses their self-control and kills their former partner and assailant, fearing further violence. It may also be relevant in situations where the full defence of self-defence fails because a defendant, who has lost their self-control, uses more force than it is reasonable for them to use. We believe that our clauses achieve the right balance because the defendant may plead the partial defence only in relation to when they lost their self-control and not if they acted in a considered desire for revenge, even if they feared serious violence.

Amendment 60, in the name of the noble Lord, Lord Hunt of Wirral, would add the words "gross provocation" to Clause 48(1)(b). It would have the effect of adding a new element to the test not just for one limb but for both limbs of the new partial defence. I reassure the noble Lord that the ground covered by the Law Commission's "gross provocation" recommendation relating to things said or done is already reflected in Clause 49(4). "Gross provocation" was merely the title that the Law Commission chose for the limb of the partial defence now included in that clause. We argue that it did not have a life of its own, so to speak, as it unfortunately does in the noble Lord's amendment. We believe that the amendment is therefore wholly unnecessary and that there is a danger that it would cause confusion. Subsections (3), (4) and (5) of Clause 49 already spell out the qualifying triggers to which the loss of self-control must relate for the partial defence to apply.

Further, we think that Amendment 60 would create significant problems. As I said, it would apply the "gross provocation" requirement to both limbs of the partial defence, but the "fear of serious violence" limb of the new partial defence to murder is intended to apply in a more tailored way to where a person kills in fear than does the current partial defence of provocation. It achieves this by focusing on what the defendant feared in the future, rather than being based on what occurred in the past.

Introducing a gross provocation requirement to the test for fear of serious violence begins to undermine that approach. Its effect would be that killings committed in fear would still have to be squeezed into a partial defence directed at killings committed in anger. It should be pointed out that the Law Commission did not apply the gross provocation label to the fear of serious violence limb, so doing that would be inconsistent with the commission's approach.

In short, we think that this additional hurdle of gross provocation is inconsistent and that it would make it much more difficult to argue successfully the fear of serious violence limb of the partial defence of loss of control. For those reasons, I invite the noble Lord to withdraw his amendment. If, as he has made it crystal clear that he intends to do, the noble and learned Lord, Lord Lloyd, takes his amendment to the opinion of the House, I shall have to advise Members of the House to vote against him.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Shadow Minister, Business, Shadow Minister (Business, Innovation and Skills) 7:15 pm, 26th October 2009

My Lords, I suppose that I should be grateful to the noble and learned Lord for saying that the amendment is good as far as it goes, but I know him well enough to know that that is a compliment. He said that I was in a conundrum. I do not want to be quixotically chivalrous but I think that, were I to look, as he advised me earlier, in the Oxford English Dictionary, I would find that he meant a cul-de-sac. For me, a conundrum is a riddle whose answer is a pun. However, I think that I can do no better than say what I said before, including to the noble Lord, Lord Thomas of Gresford: I think that we are debating issues which demand full parliamentary scrutiny and which would have been far better in a Bill of their own entitled "Reform of the Law of Murder Bill".

I sense that most of your Lordships are dissatisfied with the way in which these debates are proceeding because we are, as has been pointed out, scratching at the surface of an area that needs some careful systematic reform after the fullest possible public consultation. I summarise by saying that we do not support the noble and learned Lord, Lord Lloyd, in removing the clause from the Bill; we do, however, still feel that the Government have time to reconsider the drafting of some of these clauses and we urge them to do so. In the mean time, I beg leave to withdraw the amendment.

Amendment 60 withdrawn.

Amendment 61

Moved by Lord Lloyd of Berwick

61: Leave out Clause 48

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

My Lords, I wish to take the opinion of the House on this amendment. However, if it does not succeed, I shall not be moving Amendments 63 and 64. I hope that that will be of some comfort to the House.

Division on Amendment 61

Contents 69; Not-Contents 118.

Amendment 61 disagreed.

Division number 3 Coroners and Justice Bill — Report (2nd Day)

Aye: 67 Members of the House of Lords

No: 116 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Consideration on Report adjourned until not before 8.34 pm.