Lord Keith of Kinkel

My Lords,

For the reasons given in the speech to be delivered by my noble and learned friend Lord Mustill, which I have read in draft and with which I agree. I would dismiss the appeal, and the cross-appeal save as to issue 3 which I would allow and make the declarations he proposes.

Lord Lane

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Mustill. I agree with his reasoning and conclusions. I would accordingly dismiss the appeal and cross-appeal, save that I would allow the cross-appeal on issue 3 as defined by Lord Mustill and make the declarations which he proposes.

Lord Templeman

My Lords,

For the reasons given by my noble and learned friend Lord Mustill I would dismiss the appeal and crossappeal, save that I would allow the cross-appeal on issue 3 defined by Lord Mustill and make the declarations he proposes.

Lord Browne-Wilkinson

My Lords,

For the reasons given by my noble and learned friend Lord Mustill I would dismiss the appeal and dismiss the cross-appeal save as to issue 3 which I would allow and make the declarations which are proposed by Lord Mustill.

Lord Mustill

My Lords,

The sentencing of a convicted murderer according to English law is a unique formality.Although it is a very grave occasion it is a formality in this sense, that the task of the judge is entirely mechanical.Once a verdict of guilty is returned the outcome is pre-ordained.No matter what the opinion of the judge on the moral quality of the act, no matter what circumstances there may be of mitigation or aggravation, there is only one course for him to take, namely to pass a sentence of life imprisonment.

This purely formal character of the sentencing process is unique in more than one respect.Thus, whilst it is true that there are other, comparatively unimportant, offences where a particular sentence, or component of a sentence, is prescribed by law there is in practice no other offence besides murder for which a custodial sentence is mandatory.This singularity is not to be accounted for by the fact that the crime has resulted in the death of the victim, since although the offence of manslaughter carries a maximum penalty of life imprisonment the sentence is discretionary and the maximum is rarely imposed; and other offences in which the death of the victim is an element are subject to maximum fixed terms.Nor can the uniqueness of the mandatory sentence of murder be ascribed to the uniquely wicked quality of the intent which accompanies the fatal act, since as every law student knows, although many who speak in public on the subject appear to overlook, it is possible to commit murder without intending to kill, and many of those convicted of murder have intended to do no more than commit grievous bodily harm.In truth the mandatory life sentence for murder is symbolic.

The sentence of life imprisonment is also unique in that the words which the judge is required to pronounce do not mean what they say.Whilst in a very small minority of cases the prisoner is in the event confined for the rest of his natural life, this is not the usual or the intended effect of a sentence of life imprisonment, as a judge faced with a hard case will take pains to explain to the offender before sentence is passed.But although everyone knows what the words do not mean, nobody knows what they do mean, since the duration of the prisoner's detention depends on a series of recommendations to, and executive decisions by, the Home Secretary, some made at an early stage and others much later, none of which can be accurately forecast at the time when the offender is sent to prison.

There is, however, another form of life sentence, of which the philosophy, statutory framework and executive practice are quite different even though the words pronounced by the judge are the same.This is the discretionary life sentence.The imposition of this sentence is severely constrained by s. 2(1) of the Crimin