Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Blair of Boughton Excerpts

Thursday 9th February 2012 Lords Chamber

[Lord Carlile of Berriew]

My Lords, as has already been said by others, this House should always listen with great respect and interest to the noble and learned Lord. I agree with him to an extent in relation to a number of the issues that he has raised. I agree with him entirely that the sentence for public protection, the IPP, has become extremely undesirable and has resulted in a very large number of people remaining in prison for far longer than is necessary or even proper. I think that he would agree with me in the criticism I have made consistently with others over the years about the mandatory life sentence for murder.

However, I am bound to say that I would urge the Minister of State not to accept this amendment for a number of reasons which I at least regard as cogent and also hope that the House would. The first is that although the noble and learned Lord is absolutely right that sentencing is for the judges, as successive Home Secretaries have emphasised—I am pleased to see a very distinguished former Labour Home Secretary in his place during this short debate—sentencing policy is not for the judges. It is for the Government.

Part of sentencing policy legitimately, I would suggest to your Lordships, is setting the framework in which sentences for murder are imposed. The provision that the noble and learned Lord wishes to have repealed has had two practical effects, apart from setting clear, public and consistent sentencing policy, which is well understood by all the judges who apply it. The first is that in reality, it has diluted, although not completely removed, the offensive consequences of the mandatory life sentence. Those of us who have appeared as counsel for the prosecution and for the defence in many murder cases know that the effect of the provisions that the noble and learned Lord criticises has been to enable those who advise people charged with murder to give a tariff before the judge gives his or her tariff at the end of the case. In reality, people charged with murder are able to be advised as to their likely sentence beyond its being a mandatory life sentence.

The second consequence has been an exponential increase in the number of guilty pleas in murder cases. Lawyers are able to advise the accused person—sometimes with the help of the judge based on these clear statutory guidelines—as to the sentence that he or she is likely to face. With that knowledge—I speak from experience as a criminal barrister—I have seen a number of people charged with murder plead guilty after it has been made clear where on the statutory tariff they lie. Certainly, in my early years in practice, it was almost unheard of for anyone to plead guilty to murder.

An obvious effect of that consequence is that witnesses who may have suffered extremely traumatic events—sometimes the children of the murder victim—do not have to give evidence in court. Surely, that is an advantage. My view is that the current provisions provide for fairness to victims, fairness to defendants and apply a degree of predictability. In my view, they increase, rather than decrease, public confidence in the system.

It is a very nice view, and I wish we could say it with complete confidence, that we should simply leave murder sentencing to the judges, with some guidance from the Sentencing Council. But that does not go far enough. It is the specificity of the statutory provisions that makes the real difference day by day in criminal courts up and down the country, where murder cases are tried these days in most instances not by High Court judges but by circuit judges, with what is rather unhappily called a murder ticket.

In conclusion, my advice to my noble friend—for what little it is worth—would be to leave well alone, albeit with the option, of course, of changing the guidelines from time to time to meet circumstances.

[Lord Blair of Boughton]

My Lords, I am probably the only person currently in the House who has actually carried out murder investigations. When you knock on the door and say you are investigating a burglary, nobody takes much interest. When you knock on the door and say you are investigating a murder, the reaction is very different. I am fully in support of the noble Lord, Lord Carlile, because murder is different. It is not just any other crime. In my opinion, it is actually the crime by which the public judge the criminal justice system.

I find myself somewhat surprised to be arguing against the noble and learned Lord, Lord Lloyd, but I think that the combination he used of sentences for murder and indeterminate sentences does not, in this argument, add up, because this is about murder. I am fully in support of almost everything the noble Lord, Lord Carlile, has said. I had expected to speak for longer; I came to the House to speak to this amendment. In fact, the noble Lord, Lord Carlile, has said almost everything that needs to be said—except for this emphasis that I would place before your Lordships’ House that murder is different. I believe that Parliament has a right—indeed, a duty—to set the tariffs from which judges then make their decisions about sentencing.

[Lord Thomas of Gresford]

My Lords, lest there should seem to be unanimity on these Benches, I support the noble and learned Lord, Lord Lloyd, in his amendment.

When I started out at the Bar, people did not plead guilty to murder at all. It was a throwback to the time when hanging was the only sentence that could be passed and therefore guilty pleas were sometimes simply not accepted and a person was told to plead not guilty so that the case could be properly proved. We have moved very far from that, to the present situation, which I find mechanistic. The gap between the 15-year starting point and the 30-year starting point is far too great, in my view. It is mechanistic in that once you get your starting point, you start to deduct for this and add for that, and at the end of the day, after this complicated arithmetic, you guess at what might possibly be the sentence and advise your client accordingly.

I do not find that a very helpful way of going about things. Today there are provisions for obtaining some guidance from the judge as to the sort of sentence he would pass in certain circumstances, and that is a better way of going. These artificial starting points of 15 years and 30 years have been laid down by people with no experience of how the courts work or how cases are brought to court, and with no personal contact with clients or anything of that sort, and are not the way we should be conducting our sentencing policy. I agree with everything that the noble and learned Lord, Lord Lloyd, has said.