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Law Reform: Murder

Volume 689: debated on Thursday 1 March 2007

rose to call attention to the report of the Law Commission on reform of the law of murder including the question of mandatory life sentences; and to move for Papers.

The noble and learned Lord said: My Lords, the report that the House is now invited to take note of was published on 28 November 2006. It covers the law of murder and manslaughter in England and Wales, though not in Scotland. It is a long report and I do not suppose that any noble Lords have read every word. Nor have I. On such study as I have been able to make, I have concluded that it is by far the most complete and scholarly account of the present state of the law of murder that I have read. I cannot, in that respect, praise it too highly. I feel sure that the House will want to congratulate Mr Justice Toulson and his team, and Mr Justice Etherton, who succeeded Mr Justice Toulson, on their achievement. I do not agree with all their recommendations, but that is not surprising. On almost every subject on which they have consulted the public they have found differing views. There is one thing on which everyone is agreed: the present law of murder is a mess. It is described in paragraph 1.8 as,

“a rickety structure, set upon shaky foundations”.

I agree.

I start with the question of sentencing and, in particular, the mandatory life sentence. Until we get that right, it is difficult to create a coherent structure for the law of murder and manslaughter. That is because murder, as has been observed so often, covers an enormous range of offences—far wider than any other crime. At one end are the horrific offences which will always carry a sentence of life imprisonment, whether mandatory or not. At the other end are the offences where mitigation is so strong that one would normally be thinking of a sentence of two or three years, if that.

Yet, as the law now stands, all these offences are subject to the same mandatory sentence of life imprisonment. That is inherently unjust. It means that the trial judge cannot tailor the sentence to the crime being tried. It ties his hands. Sentencing is one of the most essential functions that a judge has to perform. I will illustrate that later.

First, it is sensible to describe how the mandatory sentence of life imprisonment has come about. When capital punishment was finally abolished in 1965 there were two alternatives. One was to give the trial judge complete discretion in sentencing, up to a maximum of life imprisonment. I favour that view, as did all the judges in 1965, led by Lord Parker, then Lord Chief Justice. He tabled an amendment to give effect to that view. It was carried in Committee in this House by two votes.

The other view was to retain the mandatory life sentence, but to give judges discretion to recommend a minimum term to be served. This second alternative won very little support in either House in 1965, but prevailed in the end—as things sometimes prevail in Parliament—because time was running out and the sponsors were desperate to get the Bill on to the statute book.

I must make good my claim that the mandatory sentence is inherently unjust. I start with mercy killing. We all know the kind of case that comes before the courts more often than one would like. A husband has been nursing his terminally ill wife for many years; she begs him to put her out of her pain and eventually he gives in, smothering her with a pillow. He has acted out of the purest compassion, yet he is undoubtedly guilty of murder. The judge in such a case would be thinking of a nominal sentence—three months, if that. Yet he is obliged by the law as it stands to impose a sentence of life imprisonment. Having pronounced that sentence, he adds in the same breath, “But you need only serve three months”. That is what the public find so hard to understand. The sentence, as currently pronounced in such a case, is simply a contradiction in terms. It is almost meaningless. Yet it is not meaningless in effect, because it means that he will be subject to a licence for the rest of his life. That cannot be right. As the Law Commission itself observed in paragraph 7.48, a lifelong sentence in such a case is neither necessary nor desirable.

Take another case, that of Private Clegg, the soldier serving in Northern Ireland. On the facts of that case as they first appeared—though, happily, not as they appeared after a retrial—he fired at a car that had failed to stop at a checkpoint. No doubt he thought they were terrorists, but they turned out to be joyriders, one of whom was killed. Clegg’s only possible defence was that he fired in self-defence, but that defence could not run as the car had already passed when the shot was fired. He was convicted of murder. When the case came to the House of Lords, I had the responsibility of giving the judgment. We dismissed the appeal because we had no alternative, but we made it as clear as we could that in our view the law was unjust; it could not be right to sentence such a man to life imprisonment. However, we could not put that right ourselves. That, we thought, was for Parliament, not for us.

Exactly the same point emerges in the rather similar case of police officers who fire and kill in the belief that a suspect has a gun in his hand or a knapsack that is full of explosive. The officer has to make a split-second decision. Assuming he has no defence, he is guilty of murder. How can it be right that such a man should face a sentence of life imprisonment?

Take the case of the householder who is confronted with a burglar in the middle of the night. He grabs his shotgun and fires. Let us suppose that his reaction was excessive, or even irrational; he is guilty, as the law stands, of murder. I have no doubt that such a person should serve a sentence of imprisonment—perhaps a substantial one—but a life sentence seems entirely wrong.

I could go on multiplying cases. They are all cases that could have been dealt with easily enough if only Lord Parker’s preferred solution had been adopted in 1965, as it so nearly was. They could be dealt with now under our existing law, if only we could get rid of the mandatory sentence of life imprisonment.

It was cases such as these that led the House to set up a Select Committee chaired by Lord Nathan in 1988. It went into the whole question in great detail and called a number of witnesses to give evidence. Lord Lane, who was then Lord Chief Justice, and a great majority of the judges said that they were opposed to the mandatory life sentence. That was the view that the Nathan committee reached, and it therefore recommended that the mandatory life sentence be abolished.

Then there was the Select Committee of the House under the noble Lord, Lord Walton of Detchant, which reported in 1993. Unfortunately he cannot be in his place today. It reached exactly the same conclusion from a different standpoint. It said, in paragraph 261:

“It would avoid the law being brought into disrepute either by the mandatory imposition of a life sentence in respect of an act which was widely thought to be compassionate and (by some) arguably justifiable, or by the inappropriate substitution”—

and this is important—

“of lesser charges where it was expected that a jury would not convict for murder because of the mandatory life sentence”.

Then there was the report of a high-powered committee set up by the Prison Reform Trust, chaired by Lord Lane in 1994. That committee too came to the unanimous view that the mandatory sentence should be abolished. So far, although I may be wrong, I have not found a single instance of an inquiry that has supported the mandatory sentence. The question for the Minister is simply this: why have these recommendations been ignored?

Let me try to meet, if I can, some of the arguments that the Minister may advance. I can think of only three. The first and most obvious is that if it is abolished, some judges might not impose a life sentence when one is clearly required. The judges who try murder cases, however, are specially selected, have long experience and are all very familiar with the guidelines that describe when a sentence should be imposed. I assure the House of one thing: that judges are not reluctant to impose life sentences when they are appropriate. They should be trusted to do their job. Even if some judges made a mistake on occasion and did not impose a life sentence when they should have done, the Attorney-General can take the case straight to the Court of Appeal and have that put right. That argument simply does not stand.

The second argument is the one usually advanced by Home Office Ministers: that it would “send the wrong signal”. But what does that mean? It presupposes that someone, when planning a robbery, says to himself, “A life sentence is no longer mandatory, so I might as well take a gun with me and use it if necessary”. I suggest that that is complete make-believe. What deters an armed robber from taking a weapon with them is the certainty of the life sentence, whether mandatory or not, and the length of time he will actually serve in prison.

I will leave the third argument on one side. It may not be advanced by the Minister, and I hope it will not be.

I turn to the report, to see how the Law Commission has dealt with the mandatory life sentence. What is its view? The answer is that we do not know; we can only guess. The question was never put to the commission; it was outside its terms of reference. The commission was asked to assume the continued existence of the mandatory life sentence. One is bound to ask: why was it asked to make that crucial assumption? Was this not a key question on which the Home Office would have valued the view of the Law Commission, in the light of the recommendations I have mentioned? Why were its hands tied?

In the very few moments remaining to me, I must do my best to say what in my view would now be the correct structure for the law of murder and manslaughter. I would confine murder to the single case of intention to kill. I would not include the lesser degree of murder that covers intention only to cause bodily harm. I would then have four partial defences: provocation, as now; diminished responsibility, as now; a partial defence to cover the cases like Clegg and the police officer who shoots in the mistaken belief that a suspect is armed, or the householder who uses excessive violence; and a partial defence to cover mercy killing. It would not be hard to define this last defence, and it would be readily understood by the jury.

What does it all come to? We should abolish the mandatory life sentence. We should have a single offence of murder, not the dual offence recommended by the Law Commission, covering the intent to kill. We should have four separate partial defences reducing murder to manslaughter. All other homicide offences short of an intent to kill would be covered by manslaughter. That way we would have a simple, coherent and, above all, workable structure for the law of murder. I beg to move for Papers.

My Lords, the House is grateful to the noble and learned Lord, Lord Lloyd, for initiating this debate, for his careful analysis of an admirable report—not for the first time—from the Law Commission and for his proposals.

The difficulty is that Parliament has so many times lacked the will or time to implement so many of the commission’s reports with or without amendments. Homicide reform has always been a hot potato; the enactment of a homicide act evaded the willingness of even Mr Gladstone. The most telling recollection in the report is a comment by a criminal lawyer at the beginning of the 20th century that a belief that a criminal code would be passed in the House of Commons was as naïve as expecting to find milk in a male tiger. I hope we have now moved on.

The commission points out that:

“The issue of sentencing is not within our remit”.

The 2003 guidelines to the Criminal Justice Act have been helpful. I have been involved in more murder cases than I can remember, and in my time at the criminal bar, the main issue in the majority of those cases was the sentence arising from the question of whether the crime was murder or manslaughter. Identity was exceptional as an issue. The issue in multihanders was the role of the parties and whether they committed murder or manslaughter in its various forms.

As we have already heard, as far back as 1993, Lord Lane, who was formerly the Lord Chief Justice, advocated a discretionary sentence for homicide. I agree with the noble and learned Lord, Lord Lloyd, that the mandatory sentence can lead to injustice. I venture to suggest the obvious: the British public easily understand the first limb of murder: the unlawful killing of another person with an intention to kill. I am less persuaded that they understand that the alternative to that is unlawful killing with an intention to do serious harm. In my experience, this is a matter that has worried and perplexed juries over the years, and I surmise that some have rebelled by returning verdicts of not guilty of murder but guilty of manslaughter in serious harm cases. As counsel for the defence, I have sometimes slapped myself on the back for getting a manslaughter verdict, although I did not quite understand why.

The commission comments that the inclusion of all intent to do serious harm cases within murder distorts the sentencing process for murder. I would go further than that because the anxieties of a jury can distort what should have been a proper verdict. I therefore welcome the strengthening—or the watering down, depending on which end of the telescope one looks through—of the alternative definition of killing through an intention to do serious injury with an awareness of a serious risk of causing death, which can be refined by the recommendation of High Court judges to include reckless indifference about causing death. For me, being aware of such a grim possibility or being recklessly indifferent to it is as good as proving an intention to kill. Any mitigation can be dealt with appropriately.

Whether we should embark on two classes of murder is more controversial. The commission argues very cogently that two classes are known in other jurisdictions. The terminology does not worry me. It should deal with many of the anxieties of juries while they ponder their verdicts. I never cease in my admiration of how juries approach their tasks.

I turn to the proposal of Sir Louis Blom-Cooper and Professor Terence Morris, who advocate a structure consisting of a single homicide offence. It would be committed on proof that the death was unlawful and that it was the outcome of the intrinsically unlawful conduct of the offender. The offences of murder and manslaughter would cease to exist. I believe that many years ago Lord Chief Justice Lane also recommended a single offence of homicide. The commission demurs and argues that the murder label is of the highest moral and social significance. I know what it means. How persuasive an argument that is in the cold light of day, I do not know. Some manslaughters are particularly heinous, and they do not carry the label of “murder”. I imagine the red tops’ field day if the Government were to abolish murder by calling it homicide. It is a measure that we have to take into account, perhaps put less starkly.

The report states that judges would not welcome that offence. I do not know on what basis, and if I am right about Lord Lane, that undermines that argument. The report states that it would be too inclusive and would cover a surgeon’s error so that his conduct would become murder. Perhaps this paragraph might be looked at again, because the conduct has to be intrinsically unlawful, so I find this paragraph difficult to follow.

While tightening up the alternative limb of murder may ease the task of juries, are they not going to jump from the frying pan into the fire in wrestling with the concept of tiered killings? After wide consultation, the commission expressed confidence that it would not prove too complex and pointed out that there is already a tiered structure for non-fatal offences. I hope that it is right, and I enthusiastically endorse the already developed practice among judges of providing written directions in murder cases.

There has undoubtedly been judicial tinkering. It is a rickety structure, but there was no alternative over 40 years of defining and redefining definitions of murder and manslaughter. The real problem is the need for reform at the border between murder and manslaughter.

The commission raised the question of whether “serious injury” should be defined. At present, where the charge is killing through an intention to do serious harm, the jury is entrusted with the decision about whether the harm intended was serious. Juries make that decision particularly well using the good common sense of 12 good men and women. I agree with the suggestions of experienced criminal lawyers, including a former DPP, that we should not embark on this field.

The commission did not enclose a Bill with its proposals and I understand why. I am confident that if a Bill is ever produced, every clause will be looked at very closely and some of these arguments, and many others, will be canvassed at great length.

My Lords, I add my thanks to the noble and learned Lord, Lord Lloyd of Berwick, for securing this debate. It is clear that over the years Parliament has not attempted to identify the purposes of sentencing or to prescribe the relative priority that the courts should attach to them.

Equally, the frequent calls for stiff sentencing for serious crimes such as violence, drugs or sexual offences are not necessarily in conflict with a wish to see fewer offenders in custody. Of course I look forward to the day when there is a determined effort to secure a shift in the public’s perception of crime and punishment. For that reason, I welcome the Law Commission’s thorough and thoughtful report. Unfortunately, however, the commission was working within one very important constraint, ably described by the noble and learned Lord, Lord Lloyd, which was not of the commission’s own making. The Government insisted, entirely wrongly, that the Law Commission’s recommendations must take account of the continuing existence of the mandatory life sentence for murder. The commission was therefore unable to recommend the single change that would do the most to enable courts to sentence justly in homicide cases; namely, the abolition of the mandatory life sentence for murder.

Abolishing the mandatory life sentence would give judges the ability to take all the circumstances of each case into account and to graduate their sentences accordingly, passing determinate sentences where appropriate and reserving life sentences for the most heinous cases. Because of this constraint, under the Law Commission’s proposals, all intentional killings would be classified as first degree murder except for cases involving provocation, diminished responsibility or a suicide pact. Yet intentional killings vary greatly from planned and calculated killings for material gain or political motives to those committed under severe pressure and in emotional circumstances of great stress. Judges should be able to reflect these variations in their sentences.

The proposals would classify as second degree murder homicides in which the offender intended serious injury but did not intend to kill and was not aware that his conduct involved a serious risk of causing death. This would enable courts to pass determinate sentences rather than mandatory life sentences in these cases. Extending the partial defence of provocation to include cases of excessive self-defence, where the defendant has acted in genuine fear of serious violence, would mean that courts could sentence these offenders appropriately and would not be bound, as at present, by the mandatory life sentence. Allowing duress to provide a defence to murder in certain circumstances would also make the law more rational and humane.

I welcome the commission’s proposal that the definition of diminished responsibility should be extended to include developmental immaturity in an offender under 18. Many children who kill do not have the developmental maturity or the control, so making a conviction for first degree murder is inappropriate. Such child offenders typically come from backgrounds involving physical, sexual or emotional abuse, parental neglect, family conflict and violence. Under the commission’s proposal, such circumstances could justify a finding that the defendant had diminished responsibility for his or her actions. There are also offenders older than 18 to whom the definition of developmental immaturity could reasonably be applied. If the Law Commission’s proposal on this point is accepted, there is a strong case for increasing the proposed maximum age for this partial defence to 21, rather than 18.

The merits of some other aspects of the Law Commission’s recommendations are more doubtful. The commission proposes, for example, that an offender who intends to cause serious injury but not to kill should be convicted of second degree murder even if they were unaware that their conduct involved a serious risk of causing death. Under the commission’s proposal, the offender who punched a victim in the face, intentionally breaking his nose, would be guilty of murder if the victim fell, banged his head on the kerb and died from a brain haemorrhage. The average person might regard this offender’s conduct as reprehensible, but would surely see such a case as justifying a verdict of manslaughter rather than murder. It is particularly unfortunate that the commission has proposed that offenders suffering from diminished responsibility should be convicted of second degree murder, rather than manslaughter, as at present. This would be a seriously retrograde step. It is completely wrong to describe people as guilty of murder whose responsibility for their actions is significantly reduced by mental disorder. The current law is right to describe these killings as manslaughter, and the description should remain.

In seeking to justify its position on this point, the report argues that the same defendant will often make pleas of both provocation and diminished responsibility, and that it may not be clear which of these partial defences the jury has accepted. This is a completely inadequate argument for a proposal that would describe a youth with severe learning difficulties, who was persuaded by an older person to play a small part in a killing, as being guilty of murder. Where defendants plead both provocation and diminished responsibility, juries should be specifically asked whether they consider that the defence of diminished responsibility is made. If so, the defendant should be convicted of manslaughter rather than murder. Despite all this detailed criticism, the Law Commission’s proposals would have the beneficial effect of enabling courts to pass fixed sentences in a considerable number of cases that now attract a mandatory life sentence. I urge the Government to go further and accept that the time is now right for the long-overdue abolition of the mandatory life sentence for murder.

My final point is about mercy killings, which both noble and learned Lords mentioned, whereby a person acts, typically for compassionate reasons, to end the life of another person at that person’s request. I am thinking here of legally challenging, but not uncommon, cases such as those of the retired policeman, Brian Blackburn, who helped his terminally ill wife, Margaret, a former hospice nurse, to die at her request; and Heather Pratten, who helped her son Nigel, who was dying of the devastating condition Huntington’s disease, to end his life. Unlike the law in many other European countries, including Spain, Portugal, Norway and Italy, the law in England and Wales does not recognise the concept of homicide with consent. It makes no distinction between ending a person’s life at their request, and ending life without any such request. The Law Commission noted in its 2004 report, Partial Defences to Murder, that,

“at present, in such cases, a conviction for murder, with consequent mandatory life sentence, can only be avoided by a ‘benign conspiracy’ between psychiatrists, defence, prosecution and the court, to bring them within diminished responsibility”.

I am concerned about the reformulation of the defence of diminished responsibility which the Law Commission has proposed, which would, if successful, reduce a first degree murder charge to second degree murder rather than to manslaughter. This may help to tackle other types of cases where a life is unlawfully ended, but unless the fundamental issues to which mercy killings give rise are resolved by a full and dedicated consultation, as the Law Commission has proposed, the new definition of diminished responsibility will do little to prevent the benign conspiracies that I have described.

In view of the issues at stake and the unpopularity of this aspect of the current law, I support the Law Commission’s recommendation that a full consultation on mercy killings should be undertaken as a matter of urgency; otherwise the benign conspiracy risks becoming a malign conspiracy. I urge the Government to reassure me and the general public that this will happen. Let us allow the Law Commission to reach a resolution on this important matter.

My Lords, I add my thanks to the noble and learned Lord, Lord Lloyd of Berwick, for bringing this report to the attention of the House. I have an interest in this matter as I was very proud to serve as the psychiatrist on Lord Lane’s committee that was considering the penalty for homicide back in 1993. My views have not changed since the publication of that report. The law of murder is still in urgent need of reform, including in relation to expert psychiatric evidence in murder trials. I regret that subsequent Governments have remained set against what would be by far the most sensible and important reform, namely the abolition of the mandatory life sentence. Retention of this sentence militates against achieving individualised justice, both generally and specifically in relation to psychiatric factors relevant to proper sentencing.

Given the current legislative climate, however, if the Government were to adopt the commission’s proposed ladder principle and the distinction between first-degree and second-degree murder, then I assume that it would pragmatically be an improvement because fewer people would be caught by the mandatory sentence. It would chip away a little at that cliff face. However, it would still leave a proportion of cases inadequately dealt with. I express my thanks for some briefings that I have had recently from Professor Nigel Eastman—a forensic psychiatrist at St George’s, University of London, who has far more extensive experience of operating these provisions than I do—and from forensic colleagues in the Royal College of Psychiatrists.

As regards the curious partial defence of diminished responsibility in the setting of abnormality of mind, the report recommends, without any discernible logic, that it is used solely in first- to second-degree murder reductions so that only if there was an intention to kill could the person plead diminished responsibility. But surely one ought to allow reduction from second-degree murder to manslaughter on grounds of diminished responsibility too.

Let me look closely at this defence of diminished responsibility. Back in the early 1990s it was used about 130 times a year. Now the numbers have dropped off to 20 or 30 a year and perhaps that is no bad thing. But there is an inherent mismatch between the constructs and methods of inquiry of law and medicine, including psychiatry. There is no doubt that the use of expert psychiatric evidence within contested trial hearings directed towards determining verdict has at times been an unseemly process, bringing forensic psychiatrists a good deal of discomfort and sometimes creating work for those ill qualified rent-a-doc figures who, thankfully, are less in evidence in the courts these days. Psychiatrists do not feel qualified to pontificate on degrees of responsibility, though they may be qualified to pontificate on abnormality of mind. So often it comes down to making a judgment on a sliding scale of moral quality. As one of my colleagues remarked to me, when someone is really mad, the courts have workable options to dispose of a patient within the hospital system. It is the ones who are not mad that we have the trouble with.

There is, of course, the very rarely used defence of not guilty by reason of insanity, but psychiatrists agree that the defence of diminished responsibility is rather a blot on their practice. It is far better to use psychiatric evidence at the sentencing stage—if the judiciary has the freedom over sentencing—when a specialist opinion can be considered without the unseemly legal argument over the minutiae of the language used to describe types of abnormality of mind.

The commission makes some proposals for modernising the definition of diminished responsibility. They are an improvement overall, but I would like further amendment to insert a further type of “diminished capacity to form a rational judgment”. I would like to see “arising from a recognised medical condition” as an appropriate wording to restrict “abnormality of mind”, and would further restrict “immaturity” to “developmental immaturity as a result of being youthful in years”. The current proposal is still too restrictive in regard to cases where there is a determined, even planned, intention to kill in the absence of any loss of control. Hence a severely depressed woman may kill her children on the basis of delusions that the world is such a terrible place that her children, whom she loves, would be better not in it, yet she might still be able to judge whether her actions were legally right or wrong. Alternately, a man may be paranoid and deluded about someone else and kill them in a planned way based on these delusions, yet still know legally or even morally that it is wrong to kill per se. There should therefore be a fourth basis for diminished responsibility to cover cases based on irrationality where there is no diminution of control.

Some successful pleas of diminished responsibility are based on “neurotic” or even “adjustment disorders”—which are not apparently very serious mental disorders—or acute reactions to stress. That may be perfectly proper, but restricting any such defence to those with a recognised medical condition would ensure that the defence was grounded in valid medical diagnosis and encourage reference within expert evidence to diagnoses in terms of one or two international classificatory systems, without explicitly writing those systems into legislation. That would encourage a common approach between experts and improve understanding between them. It might also avoid individual doctors offering somewhat idiosyncratic diagnoses as the basis for a plea of diminished responsibility. Overall, it would encourage better standards of expert evidence and improved understanding.

The criminal law as it applies to mercy killing is in a mess. I am very pleased that the Law Commission called for a separate review of it and I hope that we will take this up urgently. We know that 50 per cent of people convicted of mercy killing, whatever their sentence, go on to kill themselves. How many more people must suffer as a result of this inhumane law?

At present, the wishes of the person who has been helped to die, as the noble Lord, Lord Dholakia, has said, are not relevant to the charge. The person who has helped the loved one to die can escape a long prison sentence only if he can show that he was suffering from diminished responsibility. The reality is that most of these cases involve a person who has a profound sense of responsibility and is definitely not in unsound mind. Time and again we see mercy-killing cases journey through the courts only to be dropped or reduced to a lesser charge on the grounds of diminished responsibility. In more than 15 years, not one mercy-killing case has resulted in a sentence for murder. Not one person has received longer than a 36-month sentence for manslaughter. The law is built on hypocrisy and still fails to protect the vulnerable.

Whatever the outcome of a review, mercy killings will continue unless a law providing for assisted dying is in place, along the lines of the Private Member’s Bill introduced last year. It is time for the Law Commission and the Government to listen to the public: 82 per cent of people want the law changed so that someone who is terminally ill and competent can ask for medical help to die. The benign conspiracies between psychiatrists and the legal profession, which the noble Lord, Lord Dholakia, mentioned, bring the law into ill repute. For the moment, the Law Commission report sets the problem to one side, but I do not believe that the Government will be able to do so for ever.

My Lords, the House should be grateful to the noble and learned Lord, Lord Lloyd, for introducing this debate. His criticism of the mandatory life sentence has two virtues: it has been relentless and it has been correct. We have now reached the stage where that which was the subject of earnest debate years ago is now, frankly, eccentric criminologically and socially mysterious. People simply do not understand the nature of this sentence in relation to some of the circumstances to which it is addressed. I agree that it needs reform.

I turn to the Law Commission’s report, which calls for much more substantial reform of the law of murder. First, I regard this report as the opening chapter in a new reform of the law of murder and certainly not the last word. On further consideration, it may be that different degrees of the law of murder and different ranges of sentence may turn out to be the appropriate reform. But I am certainly not satisfied with the present state of criminal law. Although it is years since I did a murder case, over the past 40 or 50 years we have had malice, foresight, recklessness and intent all the subject of different and profound House of Lords judgments, which is not an appropriate state of affairs in which to consider the law of murder as a clear crime.

Reform is a general requirement. How are we to go about it? This is not a topic on which consultation—helpful as it is—is likely to be determinative. We are required as legislators to translate what we understand to be the overwhelming public feeling into rational and ordered legislation. Consultations apart, it is not the determinative part. We therefore should have, as did, I think, Professor Morris in the 1960s and 1970s, a detailed investigation of the history of murder over the past 10 or 15 years; that is, its type, the circumstance, and the way in which judges have applied the Criminal Justice Act 2003 and its appropriate schedule when determining the minimum period of sentence. That material is extremely important and, as was true when Professor Morris looked at it 40 years ago, is likely to reveal now that most murders are what is said to be domestic, being within a family or close relationship; that very few are downright shocking killings by gun or knife; and that not many are horrible serial killings. So reform is not simply to be directed at the Law Commission’s desire for legislative clarity, but to the real types of murder that confront our society.

Secondly, as to the appropriate approach in such an area for the legislature, why not have the fullest pre-legislative scrutiny after a draft Bill has been publicly considered and, if necessary, not only Grand Committee debates but the calling of evidence before an appropriate Select Committee dealing with that reform? We really must try and get it right this time. That will require a new statute defining the law of murder. Its underlying characteristic should be—I do not apologise for the word—killing. Ending another person’s life—whether with intent, with recklessness or through compassion—is a killing. Semantic fudge is not appropriate or sensible in this area.

With that reform in mind, why stop with the law of murder? In 2000, when I made my maiden speech in your Lordships’ House—full of legislative idealism, and untainted then by parliamentary reality—I asked why we do not codify the criminal law. Well, it was then only 120 years since Lord Blackburn had produced a code, and only 20-odd years since the Law Commissioner had produced a draft; but, really, in the legislative frenzy to which we have been exposed in the past 30 years, is there no room in the Parliament of this country to make the criminal law satisfactory for the protection of its citizens and the proper functioning of its courts? Of course there is, and we should find the room.

Why? Surely in the criminal law of this nation above all, coherence, clarity and certainty should find some place in our legislative endeavours. Surely the public would benefit, and the courts would be able to apply the law much more efficiently. The conclusion that we should all come to in a debate that is too short to consider detail, but rather should look to policy, is that we should reform the law of murder in the fullest and most comprehensive legislative way that we can contemplate, and then reform the criminal law. Then we can sit back as a legislature, and say that we have done something worth while for the country.

My Lords, I welcome this most timely debate and congratulate my noble and learned friend Lord Lloyd of Berwick on his clear and compelling speech. I shall be extremely brief, as I am aware of the enormity of the expertise in various fields around me; increasingly so, may I say, with every speech. As an inexperienced lay member of the Nathan committee—alas, there are not many of us left—I became, and remain, strongly in favour of abolishing the mandatory life sentence for murder. I shall confine my remarks to this, except to endorse what has been said about the Law Commission’s report giving a masterly exposé of the current state of murder in this country.

I was very struck back in 1989 by the detrimental effect that the indeterminate sentence had on prisoners. They had no framework in which to plan to structure their lives, and this equally made it difficult for the prison officers because the length of the tariff was not disclosed. Nowadays the minimum term is set by the trial judge and the offender knows its duration. However, the life sentence remains mandatory.

We were very clear that the way in which to deal with murder was not to divide it into degrees but to give the judge the discretion to impose the sentence appropriate for that particular offence given all the relevant circumstances. I appreciate the fact that it was not within the remit of the Law Commission to reconsider the abolition of the mandatory life sentence and that it has tightened the criteria for first degree murder and consequently narrowed the reach of the mandatory life sentence. But is the answer really to create more tiers to draw more dividing lines? Drawing lines creates anomalies either side of the divide and life will still be the maximum penalty possible for all three tiers, as it would be without any line drawing. I firmly believe that the Government should be bold, grasp this nettle, get rid of the mandatory life sentence and give the judges discretion to deal with the offence in the light of all the relevant circumstances.

The Nathan committee found—here I paraphrase something that Lord Nathan said in moving an amendment to abolish the mandatory life sentence during the passage of the Criminal Justice Bill, on 18 April 1991 at col. 1565 of the Official Report—that what families of murder victims wanted was that when murder had been committed it should be called murder, not downgraded to manslaughter; whether the sentence was an appropriate, determinate sentence or a life sentence was of secondary importance. I feel that the public may well take the same view.

The punishment should be seen to fit the crime and there should be a meaningful period in custody. Rather than draw dividing lines, would it not be far easier to understand for everyone and have more appropriate results to ask, first, whether it was intentional killing and, secondly, given all the circumstances, what the penalty should be? Of course, the penalty could still be life imprisonment, but because it was appropriate rather than because it was dictated.

I support my noble and learned friend Lord Lloyd on all partial defences, particularly that of mercy killing. Above all, I hope that the Government take note of the thrust of his speech.

My Lords, I congratulate the noble and learned Lord, Lord Lloyd of Berwick, on securing his debate and bringing the subject again into the public eye. I fully support him in his endeavour to bring about a change in the existing law and I shall highlight just two separate and distinct aspects which I hope will go some way to supporting his case.

I want to dwell on the unusual position occupied by the uniformed services in discharge of their duties and deal more briefly, if I may, with the deterrent value of mandatory life sentences. First, to illustrate the position of the uniformed services, and in particular the police, I shall draw some lessons from the fatal shooting of Jean Charles de Menezes in Stockwell in July 2005. As many noble Lords will know, I served in all ranks of the police service, in the capital and outside, and during that time was trained to the highest level in the use of the whole range of police firearms. That training rightly emphasises at all times restraint, but sometimes circumstances can place almost intolerable demands on members of the uniformed services, when split-second decisions have to be made.

We all remember the loss of life and injury on a very large scale that was caused when four bombs were exploded by suicide bombers on the public transport network in July 2005. Two weeks or so later, another attempt was made but the firing chains of those four bombs were faulty. The bombs failed to explode and the bombers escaped. The following day, police were watching a block of flats where one of the would-be bombers was believed to live. The unfortunate Mr Menenez lived in the same block, resembled the suspect and was seen to leave and travel by bus, first to one and then another underground station. He went into the station. The officers following him were instructed by radio by their control room that they should consider him to be a terrorist bomber and prevent him boarding the train. The officers on the ground were not in a position to evaluate that information for themselves. In that fraught atmosphere in London, in July 2005, they had to act decisively.

Most of us would shrink from tackling a live bomb; certainly, we would not throw ourselves on to it in an attempt to defuse it. But, as we know, that is exactly what those officers did. They followed what they thought was a determined suicide bomber on to the train; they went forward when the vast majority of people would have retreated. They threw themselves on top of what they thought was a suicide bomber and they shot him before he could detonate the bomb that they believed him to be carrying. That was their training in the circumstances, extreme though the action might seem to be to some armchair critics. Suicide bombers use a number of different ways to detonate the bombs they carry and only instant fatal shooting, sadly, can guarantee that the bomb will not be detonated.

Had those officers been correct in their belief and had Mr Menenzes in fact been a bomber, we should now still be praising their courage—courage that would have undoubtedly seen the award of a George Cross. There are many examples of the award of VCs and GCs to those who have dealt personally, and with complete disregard for their own safety, with bombs that are likely to explode. But Mr Menenzes was not a bomber. He was an electrician, probably on his way to work. The officers will not be awarded medals and they face the very real risk of prosecution for capital crime. I can describe these circumstances in your Lordships' House because it has been decided not to prosecute them but instead to prosecute the Metropolitan Police, as an organisation, for offences under health and safety legislation, doubtless a route in which it is felt that the greatest exposure of all the facts can be assured.

I do not pass comment on the decision-making process that took place in the control room that day. I have no knowledge of it and, in any case, it would be sub judice. Subsequent proceedings will doubtless produce some answers for us on that point. However, I am confident enough of the facts to know that the officers on the ground probably displayed enormous and exemplary courage and took decisive action which they thought was correct in those fraught and demanding circumstances. The action was not correct. They must have come very close to being prosecuted for it. Had events been only very slightly different, one surmises that a prosecution would have been brought against them, they would have been convicted of murder and a life sentence would have followed, no matter how great the pressures on them at the time.

I do not suggest that the uniformed services, police or military alike, should be put into a special category. I do not suggest that they should be allowed to operate in a way that puts them above or outside the law. But it must be right that, if they are convicted, the court has the discretion to determine a sentence appropriate to the circumstances which, as I hope I have illustrated, can be utterly extreme and quite outside anything that the average person could ever experience.

That leads me to my second point, on which I shall be brief. I do not believe that there is any deterrent value in the mandatory life sentence. Indeed, I doubt whether there ever was. It is said, perhaps apocryphally, that pickpockets operated around Tyburn gallows in Georgian London while convicted pickpockets were being executed. Whether or not that was the case, I believe that then, as now, it is the certainty of arrest and conviction that really deters, together with a sentence that is proportionate to the gravity of the offence. It is already common knowledge that a life sentence usually means a minimum of eight years or thereabouts. It is also common knowledge that premeditated murder, or murder where there is a callous disregard for the circumstances leading to death, will usually result in a very much longer minimum sentence.

Hard core criminals know that today they can expect terms well in excess of eight years, but it is surely right to trust the judgment of the trial judge to distinguish circumstances where a degree of leniency is called for and to allow that judge to pass a shorter sentence in those circumstances. We have heard much comment today on mercy killing and I associate myself with those remarks. It would greatly improve the administration of justice for this most serious offence and would import a degree of sentencing particularity and sentencing accuracy that is sorely lacking at present. I support the Motion.

My Lords, I add my voice to those congratulating the noble and learned Lord, Lord Lloyd, on introducing this debate, and in particular, on the fact that he has brought into it the question of the mandatory life sentence, which is, I suggest, absolutely critical, at least in practical terms, for the whole topic. Nonetheless, it was a matter that the Law Commission, the report of which we are considering, was debarred from taking into account or commenting on. Faced with that restriction, the Law Commission had to attempt to divide up the concept of unlawful killing, so that first-degree homicide had a mandatory life sentence, while the court had a sentencing discretion for second-degree homicide.

As has been demonstrated time and time again, however, categorisation of murder does not go to the question of heinousness. That was the fatal defect of the Homicide Act 1957, which made some types of murder capital offences, but not others—an anomaly that was highlighted in a passage quoted by the noble Earl, Lord Ferrers, who was the relevant Minister when the 1989 report was debated. The noble Earl quoted as follows:

“If you wished to dispose of your wife and not suffer the penalty of death you must not shoot her or drown her, but you could stab her, strangle her, poison her, or set her on fire and you would get away with it”.—[Official Report, 6/11/89; col. 454.]

That meant, of course, that the only people who faced the death penalty for murdering their wives were those who had not done their research properly or who had not looked at the Homicide Act. They had, therefore, chosen the wrong method of doing it. This problem of categorisation will remain even if the proposal in the report of the Law Commission is accepted.

A clear example of this is mercy killing, which will remain first-degree murder with a mandatory life sentence, because the categorisation depends on the intent of the accused, not on his or her motive and reason for the killing, or on their moral responsibility. There is an infinite range of similar examples, some of which noble Lords have already put forward.

The solution—certainly the best solution, and probably the only real solution—is for the court to have a complete discretion in sentencing, which enables it to make the punishment fit the crime, and not to attempt to categorise the crimes, so that the categories fit the punishment. The 1989 Select Committee got it right when it said:

“The Committee consider … that the right way to deal with this matter is not to divide murder into degrees but to give the judge a discretion to impose the sentence appropriate to the particular offence, taking into account all the relevant circumstances”.

The mandatory life sentence is, I believe, a sop that was given to those wavering on the abolition of capital sentences for murder. It was opposed by the Lord Chief Justice, and the great bulk of the judges, who wanted life imprisonment to be one of the sentences that was open to them in the general exercise of their discretion. The mandatory sentence is sometimes defended on the basis that killing someone is a uniquely terrible crime. But in any rational approach, that is just not true. As Lord Hailsham rightly said:

“Murder … though often described as one of the utmost heinousness, is not in fact necessarily so, but consists in a whole bundle of offences of vastly differing degrees of culpability, ranging from brutal, cynical and repeated offences like the so called Moors murders to the almost venial, if objectively immoral, ‘mercy killing’ of a beloved partner”.

I remember a case tried in the days of capital punishment by that great and good criminal judge, Mr Justice Wintringham Stable. A young mother had been, wholly rightly in law, convicted of the murder of her young child, in circumstances which did not quite fall within the definition of infanticide. The judge said to her: “I now have to say something to which you should pay no attention. I can assure you that you will be back with your family very soon”. He then passed the mandatory death sentence in low and hurried tones, and said to me afterwards, “That should tie the Home Secretary's hands sufficiently”. But not many of his colleagues were quite as robust as that.

Not only does the passage of the mandatory sentence give to those in court a wholly misleading impression; it also distorts the statistics. It is one of the reasons why people are able to say, “Life sentences do not begin to mean it. You get out very quickly”. If you put into the equation the mercy-killers who get out after three months although they have been sentenced to life imprisonment, of course you will get curious statistics. But the answer is that they should not be there. It may also be said that the mandatory life sentence has led to artificial distortion of the law where juries have found provocation or diminished responsibility contrary to the fact but out of a very proper sense of sympathy. All that would be avoided if the courts could pass a sentence that does fit the facts of the case. I urge the Government to go ahead and do that abolition. Some of the more subtle points, and perhaps the categorisation of mercy-killing, can then wait. If you have discretionary sentencing, you have solved most of your problems.

My Lords, I want to make only one point in this most important debate introduced by my noble and learned friend Lord Lloyd of Berwick, and he has already mentioned it. If a member of the Armed Forces on duty in an area in which operational or emergency conditions apply, and in the course of that duty, in good faith and without any malice aforethought, shoots and kills a suspected offender and is subsequently judged by a court to have been guilty of committing an error of judgment, it is grossly and manifestly unjust that, because pointing a weapon and squeezing the trigger legally constitutes intent, the only punishment that he or she can be awarded is a life sentence for murder instead of a lesser punishment more appropriate for an unlawful but not premeditated killing.

By “good faith” I mean that there was no prior intent when he or she went on duty to harm anyone, let alone the deceased; that the accused, in taking action against a suspected offender, believed that he was acting in the line of duty and even following a lawful order or instruction, perhaps set out in a rules of engagement card, if one existed; or that he considered that there was imminent danger to himself or to others. The error of judgment—if that indeed was what it was—could so easily have been brought about by having to take a split-second decision about the imminence of that danger, when perhaps at the precise moment of firing the offender had passed by or turned away; or, surprisingly, no offensive weapon was found at the scene; or because a particularly stressful situation had contributed to an honest mistake.

Whatever comes out of this debate to prompt Parliament to take action on modifying the law on murder and providing discretion about sentencing, I hope that earnest consideration will be given to the predicament of good men and true, serving their country under the most difficult circumstances, having to have imposed on them, and live with for the rest of their lives, a terrible life sentence for what, at the worst, was a culpable error of judgment made under considerable stress and strain when on duty. This has happened more than once in Northern Ireland and could easily happen at any time in Iraq or in any other places where our Armed Forces and, indeed, all our uniformed security forces—what I have just said only echoes the excellent points made by my noble friend Lord Dear on the same sort of predicaments faced by police officers—serve their country on active duty in the most complex and dangerous circumstances.

My Lords, I, too, can be brief, having regard to the excellent speeches that preceded mine, thanks to my noble and learned friend Lord Lloyd giving us the opportunity to debate this very important subject.

It may be surprising that a former Lord Chief Justice should speak briefly on this subject. Certainly each of my predecessors of whom I had personal knowledge made speeches of some length on this matter, all focused on the subject on which I want to focus. Ironically, because of the terms of reference which were given to the Law Commission, it was not able to deal directly with the matter; that is, that the solution to the problem, which we all agree exists, is the abolition of the mandatory life sentence. Whatever the history or explanation of a mandatory life sentence following the offence of murder, events since that sentence was imposed have clearly shown that it is not the way to uphold justice in respect of what can be, and usually is, the most heinous of crimes.

In recent times two important changes have come about in the sentencing process for those convicted of murder. The first change is that it is no longer the province of the Home Secretary to decide when a convicted person is to be released. If the Home Secretary, not the sentencing judge, were to determine when a person should be released, there would be some logic in curtailing the role of the sentencing judge. Formerly, a sentencing judge who had to deal with a murder case had no problem in determining what the sentence should be. You were spared the soul searching that took place in respect of many sentences. That matter was passed to the Home Secretary, though you were encouraged to write him a letter giving your views on the gravity of the sentence in order to help him.

The second significant change that has taken place is the development of guidelines, which are now provided primarily by the Sentencing Guidelines Council, although exceptionally, and in my view mistakenly, the legislature occasionally intervenes. The Sentencing Guidelines Council has the benefit of an expert panel. With that expert panel’s help, it can give the broad assistance that a sentencing judge needs to perform his or her role. Guidelines undoubtedly help. They mean that a judge now knows that if he departs from the guidelines, which can be and are subject to public debate and scrutiny by committees of Parliament, it will be the subject of a reference by the Attorney-General. So there is no risk of the judge misusing his discretion to the danger of the public. The fact that those two changes have occurred, I suggest, means that the time is ripe to look again at the mandatory sentence.

The mandatory sentence is a blunt instrument. Justice today should be refined to deal with some of the cases which have been drawn to our attention by the noble Lord, Lord Dear, and the noble and gallant Lord, Lord Bramall, to deal with the kind of cases we have heard described as mercy killing; and to deal with the cases where a defence of provocation and diminished responsibility is raised. In all those situations, if the judge has a discretion, he can take the approach which the facts dictate. There are difficulties if a case falls just without provocation and the person concerned is convicted of murder rather than manslaughter. The same very experienced judge to whom the noble Viscount, Lord Bledisloe, referred was presiding over a case when I was still a pupil. My pupil master was running the defence of provocation. It was a case where the defendant was entitled to the greatest sympathy. As my pupil master started to develop the defence of provocation, Mr Justice Slade—as he was in the habit of doing—tapped the desk with his pencil saying: “Mr Jones, if I were you, I wouldn’t water the brandy”. He had a sufficient confidence in our juries to know that with an appropriate summing-up, albeit one which would not enter the law of precedent, it was possible to achieve a just sentence without the law of provocation. That is another example of the fact that having a mandatory sentence which applies in one situation but not in another creates artificial situations and requires a judge to exercise those skills which only temporarily should be deployed by judges when the circumstances so demand.

I urge the Government, as have those who preceded me, to take the straight and direct course of changing the sentence from a mandatory to a discretionary one. If that is not possible, I have sympathy with the recommendations of the Law Commission, although I urge caution because once you start stratifying an offence, even if it be murder, into murders of different degrees you run the risk of creating more problems than you seek to solve. However, I acknowledge that it has done noble work in trying to clarify the difficult concepts that are contained in the law of homicide at present.

My Lords, like others before me, I thank my noble and learned friend Lord Lloyd for introducing this debate and particularly for addressing the inhumanity of a mandatory life sentence. I speak with hesitation as a doctor who has no legal training but who, like every other doctor, is of course subject to all aspects of the law, and as one who often wrestles with end-of-life decisions and finds helpful the current “bright line” of the law in prohibiting deliberate killing.

Therefore, I wish to concentrate on part 7 of the report, which has already been referred to with great compassion by my noble and learned friend Lord Lloyd and others who have spoken. I will consider it from a medical context. The partial defence of mercy killing may need a different name, because the term “mercy killing” is morally loaded, presupposing and implying that the motive was purely compassionate and merciful. It does not encourage other secondary motives, if they exist, such as personal benefit, to be equally assessed, even though we are here talking about the deliberate ending of the life of someone who appears to be in great distress.

It is worth noting, as was highlighted in the report, the sex difference in suicide pacts and consensual killings, which usually involve male carers killing their spouses. That raises some very important societal issues around caring for those who are vulnerable. The threshold of exhaustion needs to be assessed differently for male carers, and yet health services are predominantly staffed by women, and it is women who are undertaking assessments with a view to respite care or enhanced support. It may be that we are not appropriate to assess male carers. Such provocation of men needs to be considered. In other jurisdictions, it seems that the concept of force majeure in the medical context has developed in a way that would be incompatible with English law on murder. It is open to variable interpretation, including the level of knowledge and skills of the doctor, if it is a physician who deliberately ends life.

The Criminal Law Revision Committee recommendations on reform of 1976 made no reference to the state of mind of the victim. Indeed, one is left after the victim’s death only with the perception of others of that victim’s state of mind, yet such proxy assessments with hindsight are not accurate and are often skewed by the person’s own emotional distress, particularly if they were close to the person who died. Pressures, real or perceived, can coerce a person to feel that their life is of no value. Only too often that changes when good care is given in a way that enhances dignity. The vulnerable emotional state of the person who is frightened, in despair and possibly distorted by undiagnosed depression, which occurs in almost one third of those with serious life-threatening illness, should not be underestimated.

It is worth noting that the Criminal Law Revision Committee in the final report declined to recommend the creation of an offence of mercy killing, saying:

“It was said that our suggestion would not prevent suffering but would cause suffering, since the weak and the handicapped would receive less effective protection from the law than the fit and well because the basis of the suggested new offence would rest upon the defendant’s evaluation of the condition of the victim. That evaluation might be made in ignorance of what medicine could do for the sufferer”.

I remind noble Lords that Dr Cox, whose actions were publicised as a mercy killing, was convicted of attempted murder. He was seriously admonished by the General Medical Council for failing to take advice from colleagues who knew far more about pain control and who would have been able to offer constructive clinical advice in how to relieve the overwhelming distress of the patient.

That highlighted the problem of the doctor who works for far too long in the belief in his or her own competence across a broad range of areas. Another danger is the doctor, nurse or other carer who is tired, burnt out or simply a little lazy, and who perhaps dislikes the patient and finds caring for them taxing. It is all too easy to abandon efforts at diagnosing the true roots of distress and working hard to find resolution through meticulous attention to detail. Subtle secondary financial pressures are also felt by clinicians, and we know from the Dutch evidence how financial factors can subtly influence the thinking of some when it comes to end-of-life decision-making. The commission’s learned report points out the complexity of the subject of so-called mercy killing and that it is integrally linked to the debates around assisted suicide, physician-assisted suicide and euthanasia. They felt that views they had received on mercy killing as a partial defence were potentially one-sided, since their original consultation had not asked about this.

The limits on the proposed reformulation of the criteria for diminished responsibility in the light of the evidence from the Royal College of Psychiatrists are to be welcomed. When tragic situations arise and lead to so-called mercy killing, all will argue for compassionate reasons, whether in defence of the perpetrator or from the standpoint that the current law protects the most vulnerable in our society.

The final recommendation at part 7 is that the law should remain unchanged, pending a public consultation. I hope that any such consultation will be extensive and in-depth and will include those with expertise from all sides of the arguments. The complexities and ramifications of such changes in the law are far beyond the decisions and conclusions reached through simply conducting focus groups or population polls. The discretionary sentence, as my noble friend Lord Bledisloe suggested, may enable considerations of a partial defence of mercy killing, or whatever else it is called, to be looked at, devoid of such current pressures.

My Lords, I too congratulate my noble and learned friend Lord Lloyd of Berwick. I rise to speak with considerable trepidation as a complete layman amidst a galaxy of eminent legal talent and equally distinguished professional talent in other spheres. But I felt another lay perspective to add to that of my noble friend Lady Darcy de Knayth might not be wholly unhelpful.

I decided to add my name to the speakers list only 48 hours or less ago so my scrutiny of the report is less thorough than I would have liked. But its broad conclusions seem so utterly logical that it is hard to imagine any valid reason for delay in implementing them, notwithstanding doubtless valid quibbles over detail. The authors of the report, by painstaking analysis, have reached the same conclusion as most lay people will have arrived at intuitively; namely, that murders differ enormously in their degree of heinousness, sentences actually served should reflect this variation and it is therefore only logical to categorise homicides accordingly. However, I acknowledge that a number of noble Lords have been less than enthusiastic about the categorisation proposed.

There is a weakness in the report. As many noble Lords have pointed out, it is absolutely through no fault of the authors, since they reveal on page 15:

“The issue of sentencing is not within our remit”.

Sentencing is therefore touched on in only five out of the 265 pages. The weakness is that confusion and ambiguity over sentencing is perhaps the chief cause of public mistrust of and cynicism about the application of the criminal law. This is by no means confined to sentences for murder and similar serious crimes.

Well over 10 years ago Mr Michael Howard, then Home Secretary, made a clarion call for “honesty in sentencing”. Unfortunately he did not follow it up, since well over a year later those sentenced to four and a half years imprisonment for an intermediate offence still found themselves spending 50 per cent longer behind bars than someone else sentenced to four years for a similar offence, as the first sentence attracted one-third remission and the second 50 per cent remission.

Moving on to 2004, Mr David Blunkett, the then Home Secretary, declared the Government’s intention to,

“put sense back into sentencing”.

That was a characteristic new Labour soundbite—it sounded good initially but turned out to mean something very different because, by that time, primarily owing to prison overcrowding, effective remission on shorter sentences could amount to 75 per cent or, in some cases, more than 75 per cent of a sentence. Of course the public were reassuringly told that these people were out only on licence and could be recalled at any time. But, rightly or wrongly, the public tend not to be impressed. Perhaps in an ideal world they would be impressed but we do not live in an ideal world.

Nowhere is that ambiguity and confusion more marked than in the case of so-called life sentences. One day people read in the press that a murderer has been sentenced to life imprisonment, with a judge's recommendation that he serve at least 15 years, and the next day they read that an armed bank robber, who did not fire his gun and who physically harmed no one, has been sentenced to 20 years. I would bet heavily that at least 90 per cent of the public—probably 95 per cent—imagine that the bank robber will spend one-third longer behind bars than the murderer. That causes puzzlement and resentment—a totally unsatisfactory and unhealthy state of affairs—whereas, in truth, the outcome is almost the reverse. Assuming that the policy of 50 per cent remission persists, the murderer will spend 50 per cent longer behind bars than the bank robber.

To restore public confidence, surely the ratio of what we might call gross to net sentences for all offences should be aligned, with one standard rate of remission applying across the board. The whole concept of a life sentence has been devalued for many decades now. Most people are well aware that it very rarely means life—nor should it. Except in extremely rare cases, there should always be some light at the end of the tunnel, even if the end of the tunnel takes 30, 40, 50 or 60 years to reach and even if actuarially the chances of reaching the end of the tunnel are slender.

Might it not be worth while examining the system that applies in some American states, where for very serious offences, including murder, judges can sentence a convicted person to, say, 25 to 99 years or 42 to 99 years, the figure of 99 being a symbolic reflection of the gravity of the offence rather than a realistic projection of the time to be served. Adapted for English conditions, bearing in mind the absolute desirability of standardising remission procedures across the board so as not to confuse or alienate the public and to achieve Michael Howard's goal of honesty in sentencing, that would mean that instead of imposing a life sentence with a 15-year minimum recommendation, a sentence of 30 to 99 years would be imposed, or 30 to 75 or 40 to 100—there is no need to follow the American system slavishly. For the worst type of murder, instead of life with a 30-year minimum recommendation, one would impose a sentence of 60 to 100 or 60 to 120 years.

For mercy killing, in complete contrast, the appropriate sentence might be two to seven years, with the expectation that a convicted person would be out in 12 months. The seven years would be symbolic, reflecting the fact that someone had died and not in the expectation that seven years would ever actually be served. The outcome for the prisoner would be exactly the same—indeed, for a mercy killer it would be better in that he would be on licence for a much shorter period. What would alter would be public and media reaction to justice more clearly being seen to be done. This would surely be overwhelmingly favourable. I hope that the Government might at least consider whether proposals along those lines have any merit.

My Lords, I hope I may be forgiven for intervening briefly in the gap. I am emboldened to do so because I know that the noble and learned Lord, Lord Lloyd of Berwick, was anxious that someone with experience of how the law operates in Scotland should contribute to the debate that he has initiated. I do so against that background.

The problem to which he has drawn attention exists in Scotland as well because the mandatory life sentence operates there in a very similar way to that in England and Wales. However, the problem is less acute. I shall explain briefly why that is so. It is worth recalling, as a matter of history, that the concept of diminished responsibility was developed by Scottish judges many years ago in the time of the mandatory death sentence, but as matters are today, the reason why the problem is less acute lies in the definition of the second limb of the definition of murder to which the noble and learned Lord, Lord Morris of Aberavon, drew attention in his speech. While the first limb requires proof of intention to kill, the second limb is defined to a Scottish jury as requiring proof that the act of the accused was of such wicked recklessness that he did not care whether the victim lived or died. That is much stronger than the current definition in English law.

In practice, the question of whether the sentence will be the mandatory life sentence or a discretionary sentence is to a greater degree in the hands of the jury, because they have greater discretion in evaluating where the border lies in the act of the accused. Having prosecuted many murder cases in my time at the Bar, I know that it is difficult to prove an intention to kill. However, in many cases a murder conviction was appropriate because the second limb applied. I do not wish to detract in any way from the many speeches that have been made about the need for reform of the sentence, but if the Minister says that it would be going too far, I would respectfully suggest that there is a great deal to be said for looking very hard at the second limb, no doubt with the benefit of the investigation into how the law has been operating over 15 years, to which the noble Lord, Lord Brennan, referred.

My Lords, we are very grateful to the noble and learned Lord, Lord Lloyd, for raising the issue of what he has described as a “complete and scholarly” report. I wish it had contained a draft Bill, so that some of the controversial issues in its recommendations could be before us in a more concrete form. There is a more fundamental flaw, to which noble Lords have referred and for which the Law Commission cannot in any way be criticised. The terms of reference contain the political imperative that the recommendations take account of the continuing existence of the mandatory life sentence for murder.

The noble and learned Lord, Lord Lloyd, the noble Viscount, Lord Bledisloe, and the noble Lord, Lord Monson, have rightly called attention to the fact that circumstances are infinitely variable, from mercy killing, killing on the spur of the moment, and cold-blooded and planned killing. Methods of killing vary: the fundamental cause of a death may be poison, a shooting, a knife, a punch or even a push. Victims vary. There is a difference between a gangland killing and the killing of a small child or baby. All these variable factors should be before a judge who can come to a balanced decision as to what the sentence should be in a particular case. I would respectfully suggest that it is impossible for Parliament to decide in advance what an appropriate sentence is.

The noble and learned Lord, Lord Woolf, referred to the guidelines issued by the Sentencing Guidelines Council. In this area, when we are considering the minimum term and so on, we are bound by the straitjacket of statutory guidelines laid down in Schedule 21 to the Criminal Justice Act 2003, against which we spoke at the time.

The political imperative has forced the Law Commission into constructing this ladder, promulgating two degrees of murder as the first and second rungs, with manslaughter as the third rung. Immediately, this demands, as the noble and learned Lord, Lord Morris of Aberavon, and the noble Baroness, Lady Darcy de Knayth, pointed out, the drawing of boundary lines, mainly by focusing on the concept of intention and the use of the partial defences of provocation and diminished responsibility. These proposals in no way simplify the law; they will not lead to less frequent or shorter trials. If anything, they will add complexity to the task of a jury trying a case of culpable homicide.

The structure recommended by Sir Louis Blom-Cooper and Professor Terence Morris in their study, With Malice Aforethought, proposed that there should be a single homicide offence. They recognised, as the Law Commission itself said, that this was not within the terms of reference. The Law Commission rejected it in any event, on the basis that a hierarchical structure makes it possible to provide different sentencing possibilities for each crime and allows the jury, rather than the judge, to determine the gravity of the offence in post-sentencing procedures. By splitting it up into different levels, with the jury deciding what is the appropriate level, it is the jury that is making at least a broad categorisation of the offence. That is quite a good argument. It would have more force if we had special verdicts used more often in our courts that actually indicated how the jury had come to its conclusion, but it is very rare that a judge will allow a special verdict that will say that a decision of manslaughter was made on the basis of provocation as opposed to diminished responsibility, and so on.

If mandatory sentences, coupled with the division into degrees proposed in the report, are brought into effect, there has to be amelioration. That then requires the perpetuation of the partial defences, which I regard, from years of practice, as being highly unsatisfactory. Provocation and diminished responsibility are defences that are sometimes run singly, sometimes conjointly. For example, as the Law Commission described it in 2004, in mercy killings there is frequently that “benign conspiracy” whereby the prosecution, the defence, the judge and everyone collaborates in describing a mercy killing as due to provocation caused by the circumstances in which the individual found himself or to diminished responsibility, to reduce the offence to manslaughter and consequently lead to a lesser sentence.

These partial defences are complex. Provocation in particular is an extremely complex area; you have to show that the defendant has himself lost control, and that a reasonable person of like age and background would have lost control. That gives rise to the issue of who is the reasonable person. The noble Lord, Lord Brennan, referred to the differing judgments that go one way or the other in this field. I recall the case of Luc Thiet Thuan in 1997, before the Privy Council when I appeared for the appellant, where the council decided that no account should be taken of the fact that the appellant had suffered from a congenital brain defect. The noble and learned Lord, Lord Steyn, dissented from that Privy Council judgment. The Court of Appeal for England and Wales followed the noble and learned Lord, as did the House of Lords, in the case of Morgan Smith. Last year nine judges sat in the Privy Council in HM Attorney General for Jersey v Holley, and they held that Smith was erroneous. On the issue of who is the reasonable man there is currently a great deal of conflict. The recommendations of the Law Commission do not help to resolve the problem; they simply do not deal with it in any satisfactory way.

There is another problem: should the judge leave provocation to the jury, even if the defence does not rely on it? The Law Commission recommended in its report, published in December 2006, that the court should revert to the practice prior to 1957 where the judge filters out speculative and wholly unmeritorious claims subject to an appeal. However, that ignores the judgment as recently as last July in the Judicial Committee of this House in the case of Coutts, where the noble and learned Lord, Lord Bingham, gave an excellent exposition of where the public interest lies, to the effect that the question of provocation should be left by the judge to the jury, even though the defence does not rely on it in an appropriate case. He emphasised the importance and fairness of that in having a just trial.

The other problem that arises with these partial defences is that in some instances the Crown realises that there are strong grounds for provocation or diminished responsibility. So, if there are degrees of murder, rather than allow a jury to determine what are essentially mitigating factors that could well affect the sentence, it might well bring a charge of second-degree murder in which, under these proposals, such a finding would be irrelevant. That would be highly unfortunate for the defendant and perhaps for the victim’s family, which would be deprived of a possible verdict of guilty of first-degree murder. The use of provocation and diminished responsibility to ameliorate the effect of these proposals has not been properly considered.

Diminished responsibility is another difficult area. I was interested in the contribution of the noble Baroness, Lady Murphy. I recall one case in which eight psychiatrists and psychologists were called to give varying opinions about a person’s state of mind. There was a trial; there was an appeal on the grounds that a psychiatrist had changed his opinion; there was a second trial; and the matter went on to further appeals. As I understand it, the defendant has been in Broadmoor under an executive decision and is now about to be released into the community. There can be such a degree of difference between medical experts on this issue.

Diminished responsibility and provocation would not be necessary as partial defences if we did not have the mandatory sentence distorting the criminal law of murder. It is quite wrong to hold that under these proposals provocation could reduce first-degree murder to second-degree murder, but should not operate to reduce second-degree murder to manslaughter.

As the noble and learned Lord, Lord Lloyd, said, there is a great deal of material in this report. It covers a very wide topic, and I regret that we do not have more time to debate it. I am extremely grateful to the noble and learned Lord for bringing the matter forward.

My Lords, I, too, am extremely grateful to the noble and learned Lord, Lord Lloyd of Berwick, for bringing this matter, not for the first time, to the attention of your Lordships’ House. He has pursued it with his customary persistence and eloquence. We have all greatly benefited from what he said.

As noble Lords will have expected, the debate has been of a very high quality; and one of its distinguishing characteristics was that not only were the legal contributions compelling but so were the contributions made by noble Lords who do not have legal qualifications. I was particularly struck by the speeches of the noble Baronesses, Lady Murphy and Lady Finlay of Llandaff, on the topics of diminished responsibility and mercy killing. The noble Lord, Lord Monson, rightly remained us of the importance of honesty in sentencing and of what a distance we still have to travel to achieve that. I thought we were extremely lucky to have the noble Baroness, Lady Darcy de Knayth, here. Many years ago, she sat on the Nathan commission, which recommended the replacement of mandatory life sentences with a system of discretionary sentencing.

The noble and gallant Lord, Lord Bramall, and the noble Lord, Lord Dear, reminded us of the testing circumstances in which the uniformed services, which are armed, have to comply with a law of murder that sometimes leaves them in impossible circumstances. One of the gaps in what has otherwise been an excellent report by the Law Commission is this failure to address that issue. The Minister has undertaken to consult on the Law Commission’s report; and I am sure that she will have found that the debate this afternoon has made a contribution to the questions that will be posed. I hope that she will have taken particular note of the speeches of the noble and gallant Lord, Lord Bramall, and the noble Lord, Lord Dear, and will ask some apposite questions in that context.

One of the characteristics of the debate is that it has been dominated by sentencing, which was not addressed in the report. We know from the noble and learned Lord, Lord Lloyd of Berwick, why sentencing was not included. It was not included simply because it was not part of the terms of reference of the Law Commission. I find that strange, because when one considers any crime, but particularly murder, the credibility of the sentencing system is as important as the conformity of the law with people’s moral standards. The two march together; and I submit that you cannot reasonably address the one without the other.

The Law Commission has produced a very thoughtful report on the law. Curiously, one of the consequences of its proposals, if they are accepted by the Government and appear in a Bill, is that more people will be convicted of murder than before. This is because the offence of reckless manslaughter will be moved up from the manslaughter category to the category of second degree murder. That category, it has been assumed by the Law Commission, will be subject to a discretionary sentencing system and not a mandatory sentencing system.

I listened with great interest to the noble and learned Lord, Lord Hope, on the situation in Scotland. To some extent, one sees that thinking reflected in the Law Commission’s definition of first degree murder; because, in addition to an intention to kill, the intention to commit serious harm is now qualified by the requirement that the accused should be reckless as to whether there is a serious risk that the act might end in death. In a sense, therefore, the Law Commission is moving towards the Scottish situation.

There are important criticisms to make of mandatory life sentences that are unique to the mandatory life sentence. One, to which many of your Lordships drew our attention, is the way in which the fact of a mandatory life sentence distorts the approaches of juries to assessing the evidence and often leads to acquittals in circumstances where that would otherwise be inappropriate. The other distinct category of mandatory life sentence is that, however short a sentence is served, at the end of the day, when you leave prison you are subject to a licence for the rest of your life. That is highly undesirable for many offences.

However, surely the real issue here is wider than this; because even if it is right to replace the mandatory life sentence with the system recommended by the Nathan committee, we are still faced with the problem highlighted by the noble Lord, Lord Monson—namely that everybody knows that the sentence that is handed down by the court often bears little relation to the amount of time the individual spends in prison. That undermines the whole credibility of the sentencing system. Until we address that problem, the general public will not have faith in our system of criminal law. If we move to discretionary sentencing, we still have to take this further step of being honest about sentencing so that sentences handed down by judges are the sentences that are served by the person who has been convicted. That is, in a sense, the dog that did not bark in this report; but it is the dog that ought to have barked.

I for one would be very reluctant to move down the road of a Bill seeking to change the law of murder along the lines of the Law Commission report without at the same time having a set of rules about sentencing which were truly credible in the eyes of the general public. In my view these two matters run together and I hope that is the message that the Government will take away.

My Lords, let me join all those who have chorused congratulations to the noble and learned Lord, Lord Lloyd of Berwick, on calling for this extraordinarily useful debate. I think we have had a glittering array of talent. It is rare indeed to see so many noble Lords with legal backgrounds, Lords of Appeal in Ordinary, gallant Lords, scientific Lords, musical Lords almost from the Liberal Democrat Benches, singing so clearly in relation to this matter. I join the noble Lord, Lord Kingsland, not only in congratulating noble Lords but in rejoicing in having the noble Baroness, Lady Darcy de Knayth, with us because I, too, think that she was wrong to say that she does not have an expertise, having joined that Nathan committee with such distinction.

I am however a little perplexed as to where the party of the noble Lord, Lord Kingsland, actually sits. I do not understand whether he is saying that he would get rid of the mandatory life sentence. I see him shaking his head. No, he is not saying that. And I do not understand whether he is suggesting that the current system of sentencing should no longer have remission or parole or licence periods after sentence and that we should simply have a sentence of imprisonment. I am sure that he will elucidate on that in later debates, but I am somewhat perplexed about his party’s position on this. But as I now experience that perplexity in so many policy issues, I should perhaps become a little more accustomed to it.

It is a matter of great celebration that we are looking at the Government’s review of the laws of homicide because this is the first proper review in this area for more than half a century, and it is important that at all stages we debate it very thoroughly indeed. I can assure your Lordships that all the comments made during this debate will be taken into account and fed directly into the review of the Law Commission’s contributions. The impetus for this review was the concern with the way in which the law works, in particular in domestic homicide cases. The noble and learned Lord, Lord Lloyd of Berwick, asked for an explanation of why the review is as limited as it is and it is incumbent on me to answer that. Your Lordships will remember that when we first looked at domestic homicide, there were huge difficulties; for example, concerns that it may be too easy for a jealous partner to use the partial defence of provocation to escape a murder conviction through blaming the victim’s alleged infidelity. Unfaithfulness should not be an excuse for murder.

We therefore asked the Law Commission to look at partial defences. In its 2003 report on partial defences, it concluded that the law of murder was in a mess. In response, the then Home Secretary invited the Law Commission to undertake the first part of a wide-ranging two-stage review of the law of homicide. The Law Commission’s report is the conclusion of the first part of that process. The Government are very grateful to the Law Commission for its work in producing the detailed and considered report on proposals for reform.

We are particularly pleased that the commission has consulted so widely in drawing up these proposals. It has drawn together views from a wide range of interested parties, and we will seek to build on this work in the next stages of the review, which will now be taken forward by the Home Office. When my noble and learned friend Lord Morris of Aberavon questioned the commission’s comment about judges not welcoming a single offence, I believe that it may be referring to the judges of today who may have expressed that view. In doing this work, we must ensure that any reform leaves us with practical laws that provide justice for victims, properly punish offenders and command confidence from the public.

Clearly, many difficult issues arise in looking at the law of murder which raise complex moral and legal questions. But the review of homicide must not become a political battleground. We all come to this with a desire to get the law right. So today’s debate is a very welcome opportunity for me to explain the Government’s reasons for reviewing the law and why we have set the parameters for the review that we have.

In particular, I turn to the direct question that was asked to me by the noble and learned Lord, Lord Lloyd. The Law Commission has identified problems with the law of murder and potential solutions to them. We need to be able to take these forward without the risk of being sent off track by other issues. The other issues that we have discussed are weighty, involving moral and legal minefields, but the key problems with the existing law lie elsewhere. I know that there are many who would want us to go into that contentious area, including the mandatory life penalty for murder, euthanasia, suicide and abortion. But we believe that the difficulties of law are such that we should concentrate on those.

The Government believe that the mandatory life penalty for murder is an essential part of giving the public confidence in the criminal justice system, and the life sentence is of course a very important part of that. The Government are of the view that the mandatory life penalty should not be abolished. I recognise that that view is not universally held and, indeed, not a view that was expressed by any noble Lord in this debate. But we are proposing an important change and I am particularly grateful to the noble and learned Lord, Lord Hope, for his exposition of Scottish law and the helpful contribution that that may make.

The noble and learned Lord, Lord Lloyd, will of course recall that Parliament very recently had the opportunity to consider whether the mandatory life penalty for murder should be abolished when he tabled an amendment to that effect during the passage of the Criminal Justice Act 2003. This House then supported the retention of the mandatory penalty. It also supported the introduction of the principles for tariff setting for murder which were introduced to ensure confidence in the criminal justice system and consistency of sentencing. Therefore, what the noble and learned Lord, Lord Woolf, said was right. It reminded us of what came out of that Act by virtue of the guidelines that can be set by the Sentencing Guidelines Council. Given Parliament’s recent support for the retention of the mandatory penalty and the principles for tariff setting, it was only sensible that the review of murder should take that reality into account.

Furthermore, and equally important, I do not believe that the review of the law of murder has been unduly restricted by the terms of reference that were set for the Law Commission. Indeed, it disagreed with those who said that its proposals for a new structure would have been different had it been reviewing the mandatory penalty. For that reason, I cannot accept the proposition that the root of the problems with the law of murder is the mandatory life penalty.

One key problem that the Law Commission identified with the present law is the mismatch between a general view of what murder means and the legal definition. This means that juries may convict killers of manslaughter rather than murder where there was no intention to kill the victim, only an intention to do serious harm, which is of course a sufficient intent for a murder conviction. That must be partly because the label of murder does not seem appropriate in all the circumstances, many of which we have discussed today.

My Lords, before the Minister entirely leaves the issue of the mandatory life sentence, will she indicate whether the Government are prepared at this stage—when embarking on the second phase of their review of murder—to consider an in-depth analysis of public opinion? The Minister says that that has motivated Parliament in the past to adhere to the continuance of the mandatory life sentence. I am bearing in mind that lay people often consider that the trouble is that a “life sentence” is perceived not to be “life”. That is partly why our debate is so contrived and confined. Does the Minister agree that a real, in-depth understanding of the public’s feelings about the appropriateness of the sentence fitting the crime would not necessarily lead to an asseveration of the view that Parliament reiterated?

My Lords, the second part of the review will continue to look at the issues raised by the Law Commission. No set provision has been made on what further consultation may take place or its nature. We believe that we need to concentrate on trying to find a legal solution to some of the clearly identified problems, which have been with us for a long time.

I know, too, of another suggestion raised in the work undertaken by Sir Louis Blom-Cooper and others: that we should have a single offence. We have had to look at that option, and it is accepted that some solutions to the problem with the law, such as creating a single offence for homicide, would necessitate the abolition of the mandatory penalty. It is true, of course, that by not reviewing the mandatory penalty that option was ruled out.

However, while that was outside the scope of the review, the Law Commission nevertheless considered it. We agree with it that while such a proposal offers some advantages, the label of murder is so significant in our society that we should neither abandon it altogether, nor apply it to all forms of homicide. For that reason, and the other compelling ones set out by the Law Commission, we are not minded to support a single offence of homicide. I stress that the second part of the review is yet to be completed.

Having accepted that we need more than one offence of homicide, the solutions we find for the problems with the law will be more complicated than simply abolishing the mandatory penalty. As a point of principle, we believe it is right that the most serious form of homicide retains that penalty.

We have looked at partial defences, and it has been suggested that we should change them. They allow juries to decide whether the behaviour of the offender is in some way mitigated, so that the full force of a murder conviction is not imposed on the offender. I am glad that there has been no suggestion in this debate to abolish entirely those partial defences, because it is recognised that they provide us with an important way in which to differentiate levels of culpability.

We do not accept that the review of the law has been restricted in a way that would prevent the problems that need to be addressed being addressed. That is demonstrated by the Law Commission’s report, which offers many interesting ideas for improving the law. It is also useful to consider how the Law Commission’s proposed new structure would affect some of the hard cases which raise the most difficult questions about the appropriateness of mandatory life sentences.

Many noble Lords raised today the appropriateness of the mandatory penalty for those who kill terminally ill loved ones. The Law Commission has proposed that the definition of the partial defence of diminished responsibility should be expanded so that it more easily accommodates severely depressed carers who kill, thus mitigating the problem. Although this does not address head-on the question of whether those who kill in such circumstances but are of sound mind should ever not be convicted of the most serious offence of homicide, we have consistently said that this is a matter of conscience and needs separate consideration. However, I was very grateful for the comments of the noble Baronesses, Lady Murphy and Lady Finlay, who both identified some quite complex issues, which we need to look at in relation to diagnosis and the appropriate role for palliative care. Can we always be sure that the mercy killing really has that attached to it? There may be other reasons. I found those comments enormously valuable.

We have looked at issues recently in this House, and will no doubt do so again. I do not see the noble Lord, Lord Joffe, in his place, but he has the consistency and persistency of the noble and learned Lord, Lord Lloyd of Berwick, so I am confident that the issue will not go away.

Another type of case where the mandatory penalty may seem inappropriate is the case of a victim of domestic violence who finally kills their abuser out of desperation. That is not a case that has been mentioned much this afternoon, but can I say how important I believe it is? We have a dreadful situation in this country at the moment in relation to domestic violence, whereby one in four women may be subject to it at some stage in their lives. We must deal with those issues, not only with a degree of compassion but with acuity too. Here again, the Law Commission offers some interesting ways to allow such killers to be convicted of an offence which does not carry the mandatory penalty, but at the same time can reflect the intentional nature of the killing.

I was also grateful for the very carefully crafted speeches of the noble Lord, Lord Dear, and the noble and gallant Lord, Lord Bramall. The plight of the soldiers and police officers who discharge on our behalf some of the most dangerous and difficult duties should, rightly, excite our attention, particularly when such individuals kill in the line of duty but in doing so may have overreacted to a threat of violence or had to make a decision in a split second as to how to respond. Here the Law Commission's reform of provocation to encompass excessive use of force in self-defence could see such situations being brought out of the scope of the mandatory penalty.

In conclusion, this has been an incredibly useful and wide-ranging debate and has raised many concerns to which I am sure we will return as the review progresses. I recognise that many of those who have spoken today would like us to broaden the scope of the review to look at the continued existence of the mandatory life sentence for the most serious forms of homicide and at other difficult moral questions associated with homicide, but we believe that to do so would make for an unwieldy review. There are some genuine difficulties with the way in which the current homicide laws work which we believe can be addressed within the parameters of this review. To bring into the review other difficult and controversial areas risks preventing us being able to make progress with reform in areas where we need to see change.

The proposed Law Commission’s reforms would address many of the concerns that have been raised today about the impact of the mandatory life penalty; they would address a much broader range of issues, too. I want to build, if we can, on consensus in taking this review forward. For reforming laws as key as homicide, it is right that we have that consensus. I believe that we can do that, producing viable proposals for reform that will address the key problems without getting into highly controversial areas such as the mandatory life penalty.

Finally, in terms of the next steps for this review, we are considering whether to adopt the Law Commission’s proposals. As I have said, we see a lot of merit in them, but because this is such a sensitive area, we also want to consult widely on how to reform the law. I am sure that the consensual way in which we have always worked in this House will greatly assist us in that regard.

My Lords, I should, in the brief time I will take, apologise to the Law Commission for dealing hardly at all with the recommendations it has made in its important report. It will, I hope, be obvious to the commission that the reason was that although I had 15 minutes in which to speak, which was more than anyone else, I ran out of time. I spent too much time on the mandatory sentence about which, it must be obvious, I feel strongly. But my deficiencies in that respect have been amply made good by others who have spoken in the debate.

I particularly agree with the noble Lord, Lord Dholakia, and my noble friend Lady Murphy that a person who kills without intent to kill but only to cause serious harm should not be guilty of second-degree murder, as is proposed, but should be guilty only of manslaughter. I particularly agree that if a partial defence is upheld, it should result in a verdict of manslaughter, not second-degree murder.

I agree with my noble friends Lady Darcy de Knayth and Lord Bledisloe and my noble and learned friend Lord Woolf that the problem since the Homicide Act 1957 has been the attempt to draw fine lines and create new categories. That has not worked, yet that is what the Law Commission is now recommending. Not only would there be a fine line between murder and manslaughter, which is unavoidable, but a fine line between first and second-degree murder would add to the difficulties of juries and create appeals to the Court of Appeal on technical points. I cannot, I am afraid, support having two degrees of murder.

I agree very much with the noble Lord, Lord Brennan, that if there is to be legislation, it should be considered by a Select Committee of this House. Murder is too important a subject to be considered only by the lawyers, as it has been, and by civil servants, as it is about to be. It is a subject on which the public are involved, not only in respect of mercy killing but on all the other matters we have been discussing this afternoon.

We were all deeply impressed by the contributions of my noble friend Lord Dear and my noble and gallant friend Lord Bramall, speaking for the police and the armed services respectively, and also by my noble friend Lady Finlay, speaking as a doctor, as President of the Royal Society of Medicine and as a professor of palliative care.

The noble Lord, Lord Kingsland, agreed that the mandatory sentence was the root of the problem. But like the noble Baroness, I am not quite sure whether he went further than that in condemning the mandatory sentence as such. As the noble Baroness has said, there has been a glittering array of speakers this afternoon; together they have made a very powerful case for the abolition of the mandatory sentence. Nobody has supported it. I hope, now, that the Government will take action, not only on the many recommendations in many reports, but on this debate. I beg leave to withdraw the Motion for Papers.

Motion for Papers, by leave, withdrawn.