Friday, 22 November 2019

Whole life terms for child murder

HM Prison Wakefield
It is invariably a powerful headline when politicians promise to ensure that convicted murderers of children serve whole life terms.

That view was expressed recently by the Secretary of State for Justice and Lord Chancellor - Mr Robert Buckland QC MP - The Guardian 19 November - Tories pledge whole life term for premeditated murder of a child

The proposal:

On 19 November, the Conservative Party
issued a Press release - Life will mean life for child murderers - where it is commented that -  

The Press release goes further by stating:

"We will reform the life sentence regime for murder by revising Schedule 21 of the Criminal Justice Act 2003 and setting a Whole Life Order (a life sentence with no parole eligibility) as the starting point for all adults who murder children.  This would apply to all convicted adult murderers over 21 who commit the premeditated killing of a child aged under 16 with intent to kill.  The current rules require the murder to be of multiple children, or to be sexually or sadistically motivated, to attract a Whole Life Order, which is too restrictive.  The sentencing decision in any given case would continue to rest with the judge."

and then -

"A Whole Life Order in these cases will be the starting tariff, however judges will be able to depart from this if there are exceptional mitigating circumstances in an individual child murder case."

The proposal is therefore quite narrow. It applies to murder only (not other homicide offences such as manslaughter). The convicted individual would have to be over 21 which I take to mean at the time of the murder.  The victim would have to be under aged 16 which, again, I take to be at the time of the actus reus constituting the murder. Crucially, the actual sentencing decision would remain with the judge who could decide not to impose a whole life order if there was strong enough mitigation in the individual case.

Present legal position:

Schedule 21 of the Criminal Justice Act 2003 has already been amended by the Criminal Justice and Courts Act 2015 and the Counter-Terrorism Act 2008.   Paragraph 4 of the Schedule deals Starting Points for sentencing including Whole Life Terms:


From this we note that the seriousness of the offence has to be exceptionally high and the offender has to be aged 21 or over when the offence was committed. The paragraph goes on to give examples of cases that would normally be viewed as exceptionally serious and those include the murder of a child if it involves the "abduction of the child or sexual or sadistic motivation."  A child is defined by the Schedule as a person under age 18.

Schedule 21 paragraphs 8 to 11 make it clear that aggravating and mitigating factors are to be taken into account to the extent that the judge has not allowed for them in the choice of starting point. A significant degree of planning or premeditation is already in the list of aggravating factors and also the fact that the victim was particularly vulnerable because of age or disability. The list of factors in paragraphs 8-11 is not exhaustive.



Will the proposal achieve anything?

It is not clear why age 16 has been chosen when Schedule 21 defines "child" as a person under age 18 but the premeditated murder of a child under 16 by an individual 21 or over can already attract a Whole Life Order.  However, on the wording of the Schedule, a Whole Life Order is not the starting point. A Whole Life Order has to be justified on the basis of aggravating factors and absence of mitigating factors.

The proposal put forward by Mr Buckland would alter the starting point for sentencing in these, thankfully, rare cases. Altering the starting point in this way would make it more likely that a Whole Life Order would be imposed for such a murder.


Whole Life Terms and Human Rights:

In 2014, the Court of Appeal (Criminal Division) held that Whole Life Terms are permissible - [2014] EWCA Crim 188 which was discussed on this blog on 18 February 2014.  Even in whole life cases there is the possibility of compassionate release under s.30 of the Crime (Sentences) Act 1997.

Overall:

Under existing law, this category of murderer could receive a Whole Life Term.  The proposal is a headline-catching move but it would alter the starting point for sentencing in these cases and make it more likely that a Whole Life Term would be imposed.

According to government statistics there were 63 Whole Life prisoners on 30 September 2019 (plus 3 more "lifers" in scure hospitals). It is not clear how many of those, if any, fall within the proposal under discussion - i.e. being 21 or over at the time of the murder of a child under 16. 

Links:

The Secret Barrister - "Life means life for child killers" - the truth behind the headlines

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