He also feared the planned changes to the parole system were a recipe for "unhappiness and challenge" in jails.
In his first television interview, Lord Bingham, England's senior judge, gave notice of the coming rebellion against the Home Secretary's Crime (Sentences) Bill in the House of Lords, insisting that judges should not be obliged to pass a mandatory sentence if they considered it "unjust".
The bill proposes mandatory minimum terms of three years for adult third- time burglars and seven years for adult dealers in class-A drugs, and indeterminate life sentences for second-time violent or sexual offenders.
Some judges have warned of the futility of having no choice but to imprison for seven years an inadequate addict who sells small amounts of ecstasy or cocaine to fund their own habit. Major traffickers regularly receive higher sentences already.
Speaking in the wake of criticisms by the former Tory Home Secretaries Kenneth Baker and Douglas Hurd on the bill's Commons Second Reading last week, Lord Bingham said on BBC 1's Breakfast With Frost that provisions for judges to depart from the sentences where there were "exceptional" circumstances did not meet critics' concerns "at all". Invoking existing legislation on suspended sentences with the same wording, Lord Bingham said judges had felt they must interpret the words narrowly. Psychiatric problems, financial pressures and family difficulties did not count as "exceptional".
Indicating the minimum concession Mr Howard would need to buy off a Lords' rebellion, he said: "It would mitigate the difficulty if the bill provided that a judge should not be obliged to pass a mandatory sentence if he considered it in all the circumstances unjust to do so."
An ever-growing group of critics led by Lord Taylor, Lord Bingham's predecessor, say the removal of judicial discretion will lead to injustice, fewer guilty pleas and more acquittals.
Lord Bingham was equally critical of the measure's "honesty in sentencing" proposals, which would abolish parole and replace it with a system of limited remission for good behaviour, insisting that while existing scheme worked well, the judgment as to whether someone should have time taken off their sentence would be "extremely difficult".
It would be made, presumably, by the prison officer on the landing. "One only needs to think for a moment of the kind of tensions and resentments and unhappiness that it will cause if the landing officer says that Prisoner A has been a very good prisoner, but Prisoner B has not."
t Lord Bingham also reiterated his support for sweeping away the mandatory life sentence for adult murderers. He cited the case of Lee Clegg, the paratrooper convicted of a killing a joy-rider in Northern Ireland, who, nominally at least, was given the same sentence as a sadistic child murderer.
"Nobody in their right mind would equate the two crimes," he said. In blunt contradiction of the "life must mean life" lobby, he said when the period for retribution and deterrence had been served, most lifers could be safely released.Reuse content