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Sentencing - Mandatory life sentences in Murder cases

Guidance

Background

All offenders convicted of murder need to have a minimum term set. This is the minimum time that the offender will serve before being eligible for parole.

Up until November 2002, the Home Secretary set the minimum term, but this practice ceased following the decision in Anderson v Secretary of State [2003] 1 AC 837 that declared the practice unlawful. As a consequence all prisoners who had already been notified of a minimum term by the Home Secretary had the right to ask the High Court to review it. The High Court could confirm it or lower it, but not increase it (paragraph 3, Schedule 22 Criminal Justice Act 2003).

It also meant that between 25 November 2002 and 18 December 2003 no minimum terms were set, and offenders were sentenced to life imprisonment without knowing their earliest date of release. This resulted in approximately 700 serving life prisoners who had not had a minimum term set. Those cases were referred to the High Court by the Home Secretary under paragraph 6, Schedule 22 Criminal Justice Act 2003 for a minimum term to be set administratively by a High Court Judge.

The provisions of the Criminal Justice Act 2003 now apply to all cases where the date of offence is on or after 18 December 2003.

For offences dated before 18 December 2003, complex transitional arrangements apply.

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The Role of the Prosecutor

The Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise provides that prosecuting advocates should be in a position to assist the court by outlining those factors that bring the case within the suitable starting point and drawing the court's attention to relevant aggravating and mitigating circumstances, appropriate authorities, or sentencing guideline cases and any victim personal statements given by the victim's family.

It is the prosecuting advocate's duty to point out errors of law, such as, in these circumstances, if the court were to fail to give its reasons for departing from the starting point. The prosecuting advocate will need to be alive to the possibility that the minimum term may be unduly lenient, and be in a position to provide urgent advice.

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The Statutory Framework subsection 269 - 277 Criminal Justice Act 2003

Note: This applies to cases where the date of offence is on or after 18 December 2003.

In accordance with section 269 of the Criminal Justice Act 2003 all courts passing a mandatory life sentence are required to order the minimum term the prisoner must serve before the Parole Board can consider release on licence, unless the seriousness of the offence is so exceptionally high that the early release provisions should not apply in other words, a 'whole life order'.

In July 2013 the Grand Chamber of the European Court of Human Rights ruled in the case of Vinter and others v UK that whole life orders of imprisonment violated Article 3 of the European Convention on Human Rights which prohibits inhuman and degrading treatment and torture. This ruling has now been successfully challenged. On 18 February 2014 in the case of AG Reference (No 69 of 2013), Re; Also known as: R v McLaughlin and R V Newell [2014] EWCA Crim 188 the Court of Appeal, led by LCJ Thomas, held that whole life sentences imposed pursuant to section 269 of the Criminal Justice Act 2003 were not incompatible with Article 3 of the European Convention on Human Rights 1950 and judges were to continue to impose them in exceptional circumstances. There is an adequate review mechanism where such sentences are imposed. Thomas said the law in England and Wales provides an offender "hope" or the "possibility" of release in "exceptional circumstances". Although the Court found it difficult to specify in advance such circumstances. "But circumstances can and do change in exceptional cases." Therefore Section 30 Crime (Sentences) Act 1997 provides the regime through which such sentences can be reduced and is compatible with Article 3.

Despite this ruling any case where a whole life order is being considered should still be referred to the Appeals and Review Unit before any submissions are made and sentence passed by the court.

The court must take into account the seriousness of the offence (or the combination of the offence and any one or more offences associated with it) and any time served in custody on remand (section 269(3)). In considering the seriousness of the offence judges must have regard to the general principles set out in Schedule 21, Criminal Justice Act 2003 - (section 269(5)(a)).

The court must first allocate a starting point based on the examples given in Schedule 21, then consider any aggravating or mitigating factors, plus the effects of the defendant's previous convictions, any plea of guilty and whether the offence was committed on bail. The court has a duty to state in open court, in ordinary language, its reasons for arriving at the minimum term, including which starting point in Schedule 21 it selected and why (section 270).

It is important to note that the judge retains discretion to determine the minimum term. Whilst having regard to the statutory guidance judges need only do so to the extent they consider appropriate, and are not bound to follow it (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 (section 270(2)(b)).

In R v Davies [2008] EWCA Crim 1055 the Court stated that, when deciding whether aggravating features exist to increase the appropriate starting point for the minimum term of a mandatory life sentence, the judge should apply the same standard of proof as that applied by a jury in reaching its verdict. The distinction between the factors that call for a 30 year starting point and those that call for a 15 year starting point are no less significant than that which has to be considered by a jury when distinguishing between alternative offences, and it would be anomalous if the same standard of proof did not apply in each case.

Practical guidance is set out in Sentencing M: Mandatory life Sentences in Criminal Practice Directions [2013] EWCA Crim 1631.

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Starting Points

Schedule 21 sets out the basic starting points.

a) For adults aged 21 years old and over there are 4 starting points:

  • a whole life order; 
  • 30 years; 
  • 25 years (effective from 2 March 2010); and 
  • 15 years.

b) For 18 - 20 year olds there are three starting points:

  • 30 years;
  • 25 years (effective from 2 March 2010); and 
  • 15 years.

c) For youths there is one 12-year starting point.

Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term) Order 2010 (SI 2010/192) inserted a new paragraph into Schedule 21 which represents another "general principle" (involving the use of a knife) to which the court must have regard when making the determination.

R v Kelly (Marion) [2011] EWCA Crim 1462 held that judges should avoid a compartmentalised and mechanical approach to the provisions of Schedule 21. Judges should "have regard" to the principles set out in Schedule 21 but not follow it rigidly.

From 3 December 2012, section 65 (9) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 amends Schedule 21 paragraph 5(2)(g) by providing for a starting point of 30 years for the minimum term for a life sentence for murder aggravated on the grounds of the victim's disability or transgender identity.

Offenders aged 21 years or over

Where the offender is 21 or over at the time of the offence and the court takes the view that the murder is so grave that the offender should spend the rest of their life in prison, a 'whole life order' is the appropriate starting point. The early release provisions in section 28 of the Crime (Sentences) Act 1997 will then not apply. Such an order should only be specified where the court considers that the seriousness of the offence is exceptionally high. Such cases include:

a) the murder of two or more persons where each murder involves a substantial degree of premeditation, the abduction of the victim, or 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 or ideological cause; or
d) a murder by an offender previously convicted of murder.

Where the offence is not so serious as to warrant a whole life order but the seriousness of the offence is particularly high the appropriate starting point is 30 years. The following examples are given:

a) the murder of a police or prison officer in the course of his duty;
b) a murder involving the use of a firearm or explosive;
c) a murder done for gain (in the course of a robbery or burglary, or done for payment);
d) a murder intended to obstruct or interfere with the course of justice;
e) a murder involving sexual or sadistic conduct;
f) the murder of two or more persons; or
g) a murder that is racially or religiously aggravated or aggravated by sexual orientation.

Where the offender the offender took a knife or other weapon to the scene intending to (a) commit any offence, or (b) have it available to use as a weapon, and used that knife or other weapon in committing the murder the normal starting point is 25 years. This increased minimum term does not apply in relation to a life sentence imposed for an offence of murder committed before 2 March 2010.

For all other offences the appropriate starting point is 15 years.

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Offenders 18 - 20 years old

Where the offender commits a murder that is so serious that it would require a whole life order if committed by an offender aged 21 or over, the appropriate starting point will be 30 years.

As in the case of adults (see above) where the offence is not so serious as to warrant a whole life order, but the seriousness of the offence is particularly high, the appropriate starting point is 30 years.

Similarly, for murders committed after 2 March 2010, involving the use of a knife or other weapon in the circumstances set out above, the appropriate starting point is 25 years.

For all other offences the appropriate starting point is 15 years.

Offenders under 18 years old

For an offender who is a youth when they committed the offence the appropriate starting point is 12 years detention at Her Majesty's pleasure.

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Aggravating and Mitigating Factors

Having set a starting point the court must take into account any aggravating or mitigating factors, to the extent that it has not allowed for them in its choice of starting point (paragraph 8, Schedule 21).

Under paragraph 9, 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.

Aggravating factors that may be relevant include:

a) a significant degree of planning or premeditation;
b) the victim was vulnerable because of age or disability;
c) mental or physical suffering inflicted on the victim before death;
d) the abuse of a position of trust;
e) the use of duress or threats against another person to facilitate the commission of the offence;
f) the victim was providing a public service or performing a public duty; and
g) concealment, destruction or dismemberment of the body.

Mitigating factors include:

a) an intention to cause serious bodily harm rather than kill;
b) lack of premeditation;
c) the offender suffers from a mental disorder or disability (not falling within section 2(1) of the Homicide Act 1957) which lowered their degree of culpability;
d) the offender was provoked in a way not amounting to a defence of provocation;
e) the offender acted to any extent in self-defence;
f) a belief by the offender that the murder was an act of mercy; 
g) the age of the offender.

The court should also consider any previous convictions, whether the offence was committed on bail and if the offender pleaded guilty.

The court should take into account any period the offender has spent on remand in connection with the offence or a related offence. The offender will get no credit for time served on remand unless it is taken into account when setting the minimum term. The court should normally subtract the time for which the offender was remanded from the punitive period it would otherwise impose in order to reach the minimum term.

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Transitional Cases

Note: Sentence on or after 18 December 2003, for an offence pre-dating 18 December 2003

Where a convicted murderer is sentenced on or after 18 December 2003 for an offence that took place before that date the Crown Court will set the minimum term, pursuant to section 269 Criminal Justice Act 2003, and according to the new statutory framework.

The trial judge will consider the seriousness of the offence by applying Schedule 21, and the aggravating and mitigating factors. However, because the offence pre-dates the statute, the judge must apply an additional test (paragraph 9, Schedule 22 Criminal Justice Act 2003).

This is to ensure that an offender cannot receive a sentence greater than they could have received at the time the offence was committed, and so as not to fall foul of article 7 of the European Convention on Human Rights as incorporated into domestic law by the Human Rights Act 1998.

R v Duncan Jackson [2011] EWHC 1628 (QB) held that a defendants' rights under Article 7 would only be infringed if the minimum term fixed was longer than the tariff which could have been set as opposed to what would have been more likely set if he had been sentenced shortly after the offence was committed.

This additional test is found in paragraph 10, Schedule 22 Criminal Justice Act 2003. It states that the court may not set a minimum term greater than one that the Home Secretary would have set before December 2002, or make a whole life order unless the Home Secretary would have done so before that date. In other words, the court is required to determine a minimum term according to the new framework, then go on to determine what the decision of the Home Secretary would have been to ensure that the minimum term is no greater than this.

How to predict the Home Secretary's decision was considered in R v Sullivan, R v Gibbs, R v Barry Elener, R v Derek Elener [2004] EWCA Crim 1762, [2005] 1 Cr. App. R. (S.) 67 where the Court of Appeal ruled that, as a point of future practice, the judge should apply the Practice Statement of 31 May 2002. In order to determine the minimum term the judge has to carry out three distinct exercises which are:

Stage 1 - The judge has to assess what would be the appropriate period applying Schedule 21;

Stage 2 - Then as a separate exercise the judge has to consider  what period in accordance with the practice followed by the secretary of State before December 2002 would have notified;

Stage 3 - Then to fix the lower of the two periods reached at Stages 1 and 2.

R v James Cahill [2013] EWHC 4025 (Admin) explains the fourth stage required when dealing with a prisoner transferred to England to serve his sentence. In this instance there is a further stage, namely:

Stage 4 - Does the period specified at Stage 3 correspond with the sentence imposed by sentencing State?

Therefore in accordance with Article 10.2 of the Convention on the Transfer of Sentenced Persons 1983, the court has to consider whether to "adapt the sanction to the punishment or measure prescribed by [English] law for a similar offence......It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State."

 

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Appeals

Section 271 of the Criminal Justice Act 2003 provides defendants with a right of appeal against the duration of the minimum term.

Similarly, section 36 of the Criminal Justice Act 1988 now applies to minimum terms set under section 269(2), giving the Attorney General the power to refer cases to the Court of Appeal on the basis of being unduly lenient.

In section 36 of the Criminal Justice Act 1988, a new subsection 3(A) has been inserted. This states that in an appeal of an unduly lenient minimum term, the Court of Appeal shall not make any allowance for the fact that the person to whom the minimum term relates is being sentenced for a second time. Apart from this specific reference to the so-called 'double jeopardy' rule, the procedures and time limits for such a reference are the same as with any other qualifying offence, and Areas will need to ensure compliance.

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