Police, Crime, Sentencing and Courts Bill

Lord Carlile of Berriew Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 8th December 2021 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, we have more and more life sentences and less and less judicial discretion. The point made by the noble Baroness, Lady Fox, that deterrence is not a factor in this really should not be glossed over; it is very important.

[Lord Carlile of Berriew (CB)]

My Lords, I am puzzled by the mechanism that the Government are trying to use to increase sentences, which, in some cases, should rightly be higher, in relation to the deaths of emergency workers. After a long period of development, we created a completely new mechanism: the Sentencing Council. Judges must have regard to sentencing guidelines in every case, and those guidelines are complex. They give examples of levels at which sentences should start in certain circumstances.

I see a number of noble Lords around this Chamber who have either acted as police officers or have prosecuted and defended manslaughter cases. In my case, I have done, on one side or the other, a number of one-punch manslaughter cases, in which there was a conviction, and perhaps a sentence of three or four years’ imprisonment. One can imagine circumstances in which that could have arisen where the person who died was an off-duty emergency worker trying to help someone, and the perpetrator of the offence had no idea that that person was an emergency worker.

Surely the better mechanism is to use the flexible, living instrument of the Sentencing Council, and the sentencing guidelines, and not to inhibit the discretion of judges. The Sentencing Council and the judges will, of course, respond to the pressure that rightly arises from the awful case that has given rise to this discussion and this amendment. With great respect to the Minister, relying on “exceptional circumstances”, a description that is always determined in a restrictive way—rightly so—by the Court of Appeal, seems to be the wrong mechanism to achieve the right result.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, on these Benches we share the shock and revulsion at the death of PC Harper and the way that it came about. We support the principle that a life sentence should be available, and even possibly the norm in serious cases, for the manslaughter of an emergency worker. But where we part company with the Government is in sharing the concerns of the noble Viscount, Lord Hailsham, and everybody else who has spoken. We are unhappy with the proposal that such a sentence should be mandatory unless a judge can find “exceptional circumstances”.

The word “exceptional” has been seen in the past as requiring circumstances that are quite out of the ordinary. Frankly, I took issue with the Minister when he treated the word as allowing more latitude than the usual interpretation of “exceptional” would permit. The MoJ press release uses the phrase “truly exceptional” to describe what is required. In that connection, the noble Baroness, Lady Fox, rightly made the point about legislation by press release—a point echoed by the noble Lord, Lord Carlile, when he talked about the knee-jerk nature of this type of legislation in particular cases.

We would have far preferred the amendment to permit judges the discretion to depart from the life sentence where the circumstances and the interests of justice required. The Government’s determination to prevent judges exercising discretion, as seen throughout this Bill, is frankly depressing. This is despite Victoria Atkins MP saying in the other place only yesterday, in answer to a question from my right honourable friend Alistair Carmichael MP, that:

“Fundamentally, the judiciary and magistrates should be trusted in their sentencing decisions.”—[Official Report, Commons, 7/12/21; col. 206.]


Frankly, we agree. I made these arguments in Committee in connection with my amendments to the minimum fixed sentence provisions in Clause 101—now Clause 102 —and I will make them again when we come to debate my amendments later on Report.

The Explanatory Note to these provisions asserts that they require a court to impose a life sentence on an offender who is convicted of unlawful and dangerous act manslaughter against an emergency worker. That is misleading. There is no requirement in the proposals that the manslaughter be dangerous, in the sense that there was danger to the life of the victim, as there so obviously was in the Harper case. The requirement for danger in the case of unlawful act manslaughter, on the cases and in the CPS guidelines to prosecutors who apply those cases, it is very limited indeed. It is necessary only that the unlawful act exposed someone—not even necessarily the victim who died—to the risk of “some harm”.

I take a hypothetical case, similar to that mentioned by the noble Viscount, of a bad-tempered 17 year-old suspected by a shopkeeper of shoplifting. The shopkeeper accosts him. A row ensues, which turns into a fight—not serious, but serious enough to draw a passing police officer to come into the shop to intervene. The officer tries to arrest the youth. The youth resists arrest. He throws a punch at the officer—not hard, but plainly an assault on a police officer in the execution of his duty and enough to be obvious to everyone that it could cause some harm. The officer falls backwards and sustains an injury that turns out to be fatal.

All the elements of unlawful manslaughter are there. The guideline sentence would probably be two to four years. The required sentence under these proposals would be life imprisonment. Are these circumstances “exceptional,” as that word is known to the law? No. is the sentence just for that 17 year-old, whose very bad behaviour had such tragic consequences? I would suggest clearly not, when one considers the overall criminality of the offence and the offender. Of course, the death of the victim would significantly aggravate the sentence. That is true for all manslaughter cases. And of course, the fact that the victim was a police officer acting in the course of his duty would be another seriously aggravating factor. But should those circumstances lead to detention for life for a 17 year-old?

The manslaughter excluded from the operation of these provisions is, as the Minister helpfully explained, manslaughter by gross negligence—a very sensible exclusion—or manslaughter mentioned in certain sections of the Homicide Act or the Coroners and Justice Act, which cover diminished responsibility by reason of a recognised mental condition, suicide pacts and loss of control, reducing murder to manslaughter if the specified conditions are met. But that leaves the whole area of unlawful act manslaughter within the provisions, and any such manslaughter of an emergency worker would attract the mandatory life sentence.

The current sentencing guidelines mentioned by the noble Lord, Lord Carlile of Berriew, which came into force as recently as 1 November 2018, suggest a range of sentences for manslaughter of between one and 24 years. They divide culpability into four ranges, from A at the top to D at the low end. The factors indicating lower culpability are as follows:

“Death was caused in the course of an unlawful act … which was in defence of self or other(s) (where not amounting to a defence) OR … where there was no intention by the offender to cause any harm and no obvious risk of anything more than minor harm OR … in which the offender played a minor role,”


or where the

“offender’s responsibility was substantially reduced by mental disorder, learning disability or lack of maturity.”

Those factors, or some of them, could quite easily be present in many cases of manslaughter of an emergency worker. So these sentences might—perhaps even often—cause serious injustice.

A further point was alluded to by the noble Lord, Lord Pannick. When a life sentence is passed, the release date is ultimately in the hands not of the courts but of the Home Secretary. Any Home Secretary, not just this one, is subject to political pressures. Were a victim, for example, the holder of a Queen’s Police Medal, and there was a campaign to keep the offender in custody on that account, how easy would it be for this or a future Home Secretary to succumb to pressure to keep the offender subject to a life sentence in custody, for far longer than would be just?

--- Later in debate ---

[Lord Carlile of Berriew (CB)]

I am grateful to the Minister for giving way. One point he has not dealt with, as I understand it, is why the Sentencing Council and sentencing guidelines are not seen as an adequate and flexible mechanism for dealing with cases of this kind. We need a reasoned explanation for the rejection of that proposition.

[Lord Wolfson of Tredegar (Con)]

The reasoned explanation is that the Government believe that this is an offence which should be marked by a life sentence—a mandatory life sentence. The amount of time the person serves can be set by the judge in a tariff.

[Lord Carlile of Berriew (CB)]

The Minister has just given the game away by his slip of the tongue. He said it is a case which should be marked by “a life sentence”, and then he said, “a mandatory life sentence”. He was right before he made the slip of the tongue. That is exactly what judges can do and exactly what the Sentencing Council can deal with. I am afraid that I do not accept that his explanation so far has been reasoned.

[Lord Wolfson of Tredegar (Con)]

We are now having precisely the opposite debate to the one we had in Committee. In Committee, when someone said to me—I think it was the noble Baroness, Lady Jones—“this is a mandatory sentence” and I said, “but there are exceptions”, it was said to me, “no, it is mandatory”. Now, when I am trying to point out that it is not mandatory, in the sense that it is a mandatory life sentence but it does not mean you serve life in prison, that is said to be a slip of the tongue. I absolutely meant what I said: this provision sets out a mandatory life sentence, because the Government believe that is the right way to mark society’s horror at the killing of emergency workers, in the same way that we do for murder.

However, with murder, and in this case, the trial judge will have the ability to set an appropriate tariff. Also, unlike with murder, the trial judge can, in exceptional circumstances, depart from the sentence entirely, something which society and Parliament does not enable a trial judge to do in any murder case. With great respect to the noble Lord—

[Lord Carlile of Berriew]

I am sorry to interrupt again, but the Minister has said something completely untenable. He said that under “exceptional circumstances”, the judge has the power to depart from the sentence entirely. That is absolutely not the case. If the sentencing guidelines in front of any judge sitting in a criminal court lead to the conclusion that the starting point for the sentencing process is a life sentence, but there are circumstances at which different levels can be set, they will operate on that basis. This provision is unnecessary if we trust the judges. The Government are telling us, on the basis of belief, as the Minister said—which I do not necessarily regard as reasoned—that they do not trust judges to pass appropriate sentences in these cases, on the basis of one or two instances, when there is a perfectly good living instrument for dealing with this.

--- Later in debate ---

[Lord Wolfson of Tredegar]

I am very happy to be accused of all sorts of things, but I hope that nobody in this House believes that I act either towards it or towards any of its Members with discourtesy. We may have disagreements, but they are always, I hope, courteous. I am not in the least embarrassed about going back to the Ministry of Justice with or without anything. My task, as I see it, is to set out the Government’s position in this House and then the House has to take a view.

With great respect to the noble and learned Lord, I do not accept that this is a question of tweaking the provision or making it better. The points that have been put to me are really points of principle—people do not agree with this at all, while saying, “Of course we agree.” The matter ought to be presented to the House and dealt with by it today.

[Lord Carlile of Berriew (CB)]

Following on from the remarks of the noble and learned Lord, Lord Falconer, can the Government agree to the House being adjourned for half an hour or so, so that there can be a discussion between the usual channels and between the groups in the House as to how this should continue? We would be very grateful and it would be seen as a matter of utmost but necessary courtesy.

[Baroness Jones of Moulsecoomb (GP)]

I have an alternative suggestion; perhaps the clerk can tell us whether it is legal. Is there anything to stop any of us calling for a vote once—