The present sentencing framework:
The sentencing basis is now to be found in the Criminal Justice Act 2003 Schedule 21. Under s269 of the Act, the Lord Chancellor may by Order amend Schedule 21 following consultation with the Sentencing Council. Under section 330(5), the Lord Chancellor's Order must be approved by resolution of each House of Parliament.
The power to amend Schedule 21 has been used previously - see Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term ) Order 2010.
The clear aim of the Schedule, as presently drafted, is
to reserve a whole life starting point for cases which are of exceptional seriousness. For offenders aged 21 or over (at time of offence), the starting point is a a whole life order where the court considers that the seriousness of the offence is exceptionally high. The Schedule then lists some types of case which normally fit that category:.
(a) the murder of two or more persons, where each murder involves any of the following -
(i) a substantial degree of premeditation or planning,
(ii) the abduction of the victim, or
(iii) sexual or sadistic conduct,
(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation,
(c) a murder done for the purpose of advancing a political, religious, racial or ideological cause, or
(d) a murder by an offender previously convicted of murder.
The Schedule goes on to provide that, for an offender aged 18 or over (at time of offence), the starting point will be 30 years where the court considers that the seriousness of the offence is particularly high. Again, some types of case which would normally fit this category are listed and these include (a) the murder of a police officer or prison officer in the course of his duty.
Once the starting point is decided, the judge will then apply any aggravating and mitigating factors (see the lists in the Schedule) to the extent that they have not already been allowed for in choosing the starting point. Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order.
It is important to note that, as presently drafted, Schedule 21 is not a rigid 'tick box' system. As the
Crown Prosecution Service indicates (Mandatory Life sentences in murder cases), the judge retains discretion to determine the minimum term - (see R v Sullivan and others [2004] EWCA Crim. 1762 at paragraph 11). However, the court must state its reasons for departing from the guidance.
Whilst the present framework gives a 30 year starting point for the murder of a police officer (in the course of his duty), judicial discretion has been retained and where there are aggravating features the actual term set could be longer. If there are mitigating features then the term could be shorter. The retention of judicial discretion in any change to the law will be essential if serious injustice is to be avoided. Theresa May's announcement referred to a whole life starting point and so it appears that judicial discretion will remain to lower the minimum term if appropriate.
It is interesting to note that Schedule 21 - as now written - refers to prison officers as well as police officers. It is not clear whether Theresa May's thinking extends to raising the starting point for persons other than police officers.
Challenge to 'Whole Life Orders' under the existing framework:
In January 2012, the Fourth Section of the European Court of Human Rights gave judgment in
Vinter and Others v. the United Kingdom - (Judgment of 4th Section). The applicants, Douglas Gary Vinter, Jeremy Neville Bamber and Peter
Howard Moore, are currently serving mandatory sentences of life
imprisonment for murder. When convicted the applicants were given whole
life orders, meaning they cannot be released other than at the
discretion of the Secretary of State on compassionate grounds. They
argued that their whole life orders amounted to a breach by the UK of
the prohibition of inhuman or degrading treatment (Art 3). They also
relied on Article 5(4) (right to have lawfulness of detention decided
speedily by a court), Article 6 (right to a fair hearing), and Article 7
(no punishment without law). The E Ct HR held unanimously that Art 3 was not violated.
In November 2012, the Vinter case was heard by the Grand Chamber of the E Ct HR - Whole Life Terms for Murder - Vinter and others v UK (28th November 2012). A key point in the argument for the applicants was that when a 'whole life term' is set there is no review mechanism and that, as a result, Article 3 of the E Conv HR is breached. The British government submitted that whole life terms - for murders of the most extreme gravity - do not breach Article 3. This position was supported on 21st November by the Court of Appeal (Criminal Division) sitting as 5 judges with the Lord Chief Justice presiding - David Oakes and others v R [2012] EWCA Crim 2435 - (post at Law and Lawyers 22nd November Two BIG stories).
Judgment in the Vinter case has yet to be handed down by the Grand Chamber.
Other links:
List of Police Officers killed in the line of duty since 1900
Odegbune and others v R - Court of Appeal 15th May 2013
Thank you, that's very interesting. In the news reports which I'd heard I had missed that the Whole Life Tariff was proposed as a starting point, rather than an absolute.
ReplyDeleteI think this is really a very nice post.
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