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Sentencing - Mandatory life sentences in Murder cases

Updated: 25 April 2022|Legal Guidance

Background

All offenders convicted of murder receive a sentence of life imprisonment.  Where the court imposes the mandatory life sentence, it must also specify the minimum term that the offender will serve before being eligible to apply for parole. (Section 269 of the Criminal Justice Act 2003) or order that the early release provisions do not apply (a “whole life order”).

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, which declared the practice unlawful. 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 (see further below)

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.

Determination of minimum term; The Statutory Framework – Sections 269-277 Criminal Justice Act 2003

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

The statutory provisions apply to:

  • sentences of life imprisonment for murder (but not related offences such as attempted murder or conspiracy to murder).
  • detention at Her Majesty's pleasure under s90 PCC(S)A 2000, PCC(S)A 2000,
  • custody for life imposed for murder committed by an offender under 21 under s 93 PCC(S)A 2000

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 (s. 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 - (s.269(5)(a)).

The court must first allocate a starting point based on the examples given in Schedule 21. It will then consider any aggravating or mitigating factors, 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 (s.270).

The court must also consider any guidelines relating to the offences in general which are relevant to the case and not incompatible with the provisions of Schedule 21.

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 (s. 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.

Further guidance can be found in the Criminal Practice Directions; section M

Starting Points

Schedule 21 sets out the starting points:

  1. For adults aged 21 and over, there are four starting points:
    • A whole life order;
    • 30 years’;
    • 25 years’ (effective from 2 March 2010); and
    • 15 years’.
  2. For 18-20 year olds, there are three starting points:
    • 30 years’;
    • 25 years’ (effective from 2 March 2010); and
    • 15 years’.
  3. 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. 

Having determined which starting point applies, the court must make any appropriate adjustment for the aggravating and mitigating factors (see below).

R v Kelly (Marlon) [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.

For offences committed on or after 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 or over

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 that the prisoner must serve before the Parole Board can consider release on licence. An exception is if the offence is so exceptionally high that the early release provisions should not apply, which is known as a ‘whole life order’.

A whole life order applies if the offender is aged 21 or over when the offence was committed and the court considers that the offence or combination of the offence and one or more associated offences is 'exceptionally high'.

Cases which would normally fall into this category include:

  • the murder of two or more persons where each murder involved a substantial degree of planning or the abduction of the victim, or sexual or sadistic conduct;
  • the murder of a person under the age of 18 involving abduction or sexual or sadistic motivation;
  • political, religious or ideological murder;
  • murder of a police officer or prison officer in the course of their duty

Hutchinson v United Kingdom [2017] 1 WLUK 173; 43 B.H.R.C. 667 ruled that Attorney General's reference no69 of 2013 [2014] 1 W.L.R 3964 had dispelled the lack of clarity identified by the European Court of Human Rights in the law concerning the review of whole-life sentences and that the regime of whole-life sentences should now be considered compatible with ECHR Article 3.

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’. Such cases included (but are not limited to):

  1. The murder of a police or prison officer in the course of their duty;
  2. A murder involving the use of a firearm or explosive;
  3. A murder carried out for gain (in the course of a robbery or burglary, or done for payment);
  4. A murder intended to obstruct or interfere with the course of justice;
  5. A murder involving sexual or sadistic conduct;
  6. The murder of two or more persons; or
  7. 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 (CJA 2003, Sch 21, para 5A).

The judgment in R v Kelly (Marlon) & others [2012] 1 W.L.R. 55 examines the ambit and impact of the Criminal Justice Act 2003 Sch.21 para 5A on the determination of the minimum term to be served following conviction for murder committed with a knife.

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

Authorities such as R v Bristol [2012] EWCA Crim 1684; [2013] 1 Cr.App.R.(S.) 81 and R v Thomas [2009] EWCA Crim 904; [2010] 1 Cr.App.R.(S.) 14 are clear that a background of domestic abuse is an aggravating factor when it comes to setting the minimum term and it is not necessary that it should be the subject of a separate charge and conviction: R v Wilson [2018] EWCA Crim 1352; [2018] 2 Cr.App.R.(S.) 25.

Offenders 18-20 years old

In R v Peters; R v Palmer; R v Campbell [2005] EWCA Crim 605; [2005] 2 Cr.App.R.(S.) 101, it was said that it should be borne in mind that although eighteenth and twenty-first birthdays represent significant moments in the life of an individual, they are not necessarily indicative of the individual’s true level of maturity, insight and understanding; that such characteristics are not postponed or suddenly accelerated by those birthdays; and that the first stage in the process is to select the prescribed statutory starting point; then to allow, where the offender’s age, as it affects their culpability and the seriousness of the crime justifies it, a substantial discount from the starting point.

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

For an offender who is a youth when they committed the offence the appropriate starting point is 12 years’ detention.

For guidance on life sentences for youths convicted of murder, see Criminal Practice Directions, CPD VII Sentencing, para M.11.

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:

  1. A significant degree of planning or premeditation;
  2. The victim was vulnerable because of age or disability;
  3. Mental or physical suffering inflicted on the victim before death;
  4. The abuse of a position of trust;
  5. The use of duress or threats against another person to facilitate the commission of the offence;
  6. The victim was providing a public service or performing a public duty; and
  7. Concealment, destruction or dismemberment of the body.

Mitigating factors include:

  1. An intention to cause serious bodily harm rather than kill;
  2. Lack of premeditation;
  3. 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;
  4. The offender was provoked in a way not amounting to a defence of provocation;
  5. The offender acted to any extent in self-defence;
  6. A belief by the offender that the murder was an act of mercy;
  7. 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.

Appropriate credit should be given for a guilty plea  (see the Sentencing Council’s Reduction in Sentence for a Guilty Plea guideline); in relation to whole life terms, the court should consider the fact that the defendant has pleaded guilty to murder when deciding whether it is appropriate to make such an order

Transitional Cases

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 he could have received at the time that he committed the offence, 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. Therefore, 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 evaluate 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 their 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."

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.

Section 36 of the Criminal Justice Act 1988 provides 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.

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