Criminal Justice and Courts Bill

Debate between Lord Davies of Stamford and Lord Phillips of Worth Matravers

Monday 14th July 2014 Lords Chamber

[Lord Davies of Stamford (Lab)]

My Lords, I hope that the noble and learned Lord, Lord Lloyd, was right when he said that he did not believe that any member of the Government had ever wished that the right of review for whole life prisoners should disappear. He may well be right, and I would be the last person to wish to challenge his generosity, but I have seen at very close quarters in the course of my political career how really fundamental legal principles can be eroded under the pressure of electoral and demagogic—I can use no other word—considerations. It is enormously important for us in the House of Lords, who are less prone and less open to those pressures than Members of the other place, to be very clear in our minds about the legal principles on which we really do wish to take our stand and which we think are foundational for our legal system.

I support this splendid amendment on the three grounds that have already been touched on in one way or another by those noble Lords who have spoken to it. One is that it undoubtedly increases the humanity, and therefore the justice, of our legal system, which, after all, has been inspired over the centuries by the Christian idea of forgiveness, as well as by other Christian concepts

It also contributes to the efficiency and efficacy of our penal system, because no penal system can really work properly unless it is committed to the concept of rehabilitation. If rehabilitation is excluded or irrelevant for certain classes of prisoner, because nothing they do and no transformation of their character or behaviour can earn them any kind of release, then there is no rehabilitation for some prisoners and rehabilitation therefore ceases to be a general principle that is observed by the penal system in relation to all its prisoners as a matter of course. That leads to a degradation of the spirit and the culture of the penal system concerned, which would be extremely undesirable.

Thirdly, I very much share the view that has already been expressed that it is very important that other penal, legal decisions about the review of prisoners should be taken by independent judicial or quasi-judicial bodies—for this purpose, I accept that the Parole Board falls into that category—and under no circumstances, for the reasons that I mentioned at the outset of my intervention, by a member of the executive branch of government, open to pressures from Back-Benchers, the Daily Mail and God knows who else.

This amendment is extremely timely and I wholeheartedly agree with the view that has already been expressed that the responsibility now lies with Parliament to clarify the law, to make it absolutely clear what we believe the law should be in this particular matter, not to leave matters to the vagaries of jurisprudence, given the considerable uncertainty that has already been created, certainly in my mind, by the Minister’s statement that it is possible to interpret “compassionate” as including all sorts of issues relating to the conduct of the prisoner as well as the prisoner’s health. We are going down a route that would lead to greater uncertainty for the law and therefore greater injustice, which would be extremely undesirable. We have the opportunity to legislate clearly in this House this afternoon and we should take it.

[Lord Phillips of Worth Matravers (CB)]

My Lords, I support this amendment. In Vinter, the Grand Chamber of the Strasbourg court made it plain that a whole life sentence that had no possibility of review, however long the defendant might be detained in prison, constituted inhuman treatment contrary to Article 3 of the convention. In explaining its decision, the Grand Chamber said at paragraph 112 that,

“if such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence”.

That passage echoes the observations of the noble Lord, Lord Marks, which I endorse.

The Strasbourg court held that the discretionary power of the Secretary of State to release a whole life prisoner under Section 30 of the Crime (Sentences) Act 1997 did not satisfy the requirement of Article 3 because of uncertainty as to when the Minister would be required to exercise that power. In so holding, it differed from a decision of the Court of Appeal in Bieber, over which I had presided, but as the House has heard, the Criminal Division of the Court of Appeal presided over by the Lord Chief Justice has recently disagreed with the Strasbourg court on this point in the case of McLoughlin.

The Court of Appeal said this about the duty of the Secretary of State:

“First, the power of review under the section”—

that is, Section 30 of the 1997 Act—

“arises if there are exceptional circumstances. The offender subject to the whole life order is therefore required to demonstrate to the Secretary of State that although the whole life order was just punishment at the time the order was made, exceptional circumstances have since arisen. It is not necessary to specify what such circumstances are or specify criteria; the term ‘exceptional circumstances’ is of itself sufficiently certain”.

The court went on:

“Second, the Secretary of State must then consider whether such exceptional circumstances justify the release on compassionate grounds … Third, the term ‘compassionate grounds’ must be read, as the court made clear in R v Bieber, in a manner compatible with Article 3. They are not restricted to what is set out in the Lifer Manual. It is a term with a wide meaning that can be elucidated, as is the way the common law develops, on a case by case basis … Fourth, the decision of the Secretary of State must be reasoned by reference to the circumstances of each case and is subject to scrutiny by way of judicial review”.

One suspects that the Secretary of State may not relish being required to exercise this discretion; nor is it appropriate that the discretion should be exercised by a member of the Executive, as the noble Lord, Lord Pannick, has explained. This amendment would transfer the relevant decision to the Parole Board and define the circumstances in which it would fall to be exercised, with a precision that should satisfy the Strasbourg court.