Life imprisonment in England and Wales

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In England and Wales, life imprisonment is a sentence which lasts until the death of the prisoner, although in most cases the prisoner will be eligible for parole (officially termed "early release") after a fixed period set by the judge. This period is known as the "minimum term" (previously known as the "tariff"). In some exceptionally grave cases however, a judge may order that a life sentence should mean life by making a "whole life order."

Murder has carried a mandatory life sentence in England and Wales since capital punishment was suspended in 1965.^[1] There is currently no "first degree" or "second degree" murder definition. However there were two degrees of murder between 1957 and 1965, and there have recently been plans to introduce such a definition.^[2]

Life imprisonment is only applicable to defendants aged 21 or over. Those aged between 18 and 20 are sentenced to custody for life. Those aged under 18 are sentenced to detention during Her Majesty's pleasure for murder, or detention for life for other crimes where life imprisonment is the sentence for adults. However people under 21 may not be sentenced to a whole life order, and so must become eligible for parole.

In addition to the sentences mentioned above are two other kinds of life sentence, imprisonment for public protection (for those over 18) and detention for public protection (for those under 18). These are for defendants whose crimes are not serious enough to merit a normal life sentence, but who are a danger to the public and so should not be released until the Parole Board decides they no longer represent a risk. Consequently a whole life order is not available for either of these sentences. (See Criminal Justice Act 2003 for details.)

History

Main article: Capital punishment in the United Kingdom

When life imprisonment gradually replaced the death penalty as punishment for murderers, firstly for those whose sentences were commuted and later for those whose crimes were not aggravated in the terms of the Homicide Act 1957, it was fairly common for those sentenced to life to be released in around ten to fifteen years.^[3] After the death penalty was abolished, it came to be seen as necessary for longer sentences to be imposed, especially in cases such as the Moors Murders and the Massacre of Braybrook Street. An additional factor leading to longer incarceration was that the average natural lifespan of the British population has grown at the same time as very long sentences have been implemented in the absence of the death penalty.

The Criminal Justice Act 2003

Main article: Criminal Justice Act 2003#Life sentences for murder

Formerly, the Home Secretary reserved the right to set the "tariff" or minimum length of term for prisoners sentenced to life imprisonment. However in November 2000 politicians were stripped of this power in relation to defendants aged under 18, following an appeal to the European Court of Human Rights by the murderers of James Bulger.^[4]

In November 2002 a similar decision in relation to adult offenders followed a successful challenge by convicted double murderer Anthony Anderson. Anderson had been sentenced to life imprisonment in 1988 with a recommended minimum term of 15 years, but the Home Secretary later informed him that he would have to serve at least 20 years. The House of Lords ruled that this was incompatible with his human rights.^[5][6] This judgment was upheld by the European Court of Human Rights. Since then, judges have set minimum terms and only the Court of Appeal or the Supreme Court of the United Kingdom can make any amendments to the sentence. Though politicians can no longer decide how long a life sentence prisoner spends behind bars, the Attorney General still has the power to petition the Court of Appeal in a bid to increase any prison terms which are seen as unduly lenient.

The Criminal Justice Act 2003 set out guidelines for how long murderers should spend in prison before being considered for parole. Judges are not obliged to follow the guidelines, but must give reasons if they depart from them. The guidelines recommended that multiple murders (the murder of two or more people) whose crimes involved sexual abuse, pre-planning, abduction or terrorism should never be released from prison, which is known as a "whole life order", while other multiple murders (two or more) should carry a recommended minimum of 30 years as a starting point sentence prior to consideration of additional aggravating factors and of any mitigating factors. A 30-year minimum should also apply to the worst single murders, including those with sexual or racial motives, the use of a firearm as well as the murder of police officers. Most other murders should be subject to a 15-year minimum as a starting point. Inevitably, there have been numerous departures from these guidelines since they were first put into practice. For example, the judge who sentenced David Bieber for the murder of a police officer ordered that he should never be released from prison,^[7] whereas statutory guidelines recommended a 30-year minimum for such crimes. On 23 July 2008, Bieber was told by the High Court that he would not have to serve a full life sentence, as originally recommended by the trial judge, but would still have to serve a minimum of 37 years before being considered for parole, meaning that he is set to remain in prison until at least 2041 and the age of 75. And in the case of Mark Goldstraw, who killed four people in an arson attack on a house in Staffordshire, the trial judge set a recommended minimum of 35 years. As the crime included planning and resulted in the deaths of four people, it might have been expected to come under a category of killings which merited a whole life term.

Parole

A prisoner who has served their minimum term becomes eligible for parole. If the Parole Board agrees to release a prisoner who was sentenced to life, he or she is released on a life licence. Prisoners who break the conditions of their release, or who are found to be a danger to the public, can be immediately re-incarcerated under the terms of this licence.

In England and Wales, the average sentence is about 15 years before the first parole hearing, although those convicted of exceptionally grave crimes remain behind bars for considerably longer; Ian Huntley was given a minimum term of 40 years. Some receive whole life orders and die in prison, such as Myra Hindley. Various media sources estimate that there are currently between 35 and 50 prisoners in England and Wales who have been issued with whole life tariffs or whole life orders, issued by either the High Court or the Home Office. These include Ian Brady, Donald Neilson, Dennis Nilsen and Robert Black.

For England and Wales, the law regarding release on licence of prisoners is laid out in chapter 2 of the Crime (Sentences) Act 1997 (see in particular sections 28–30). This Act was amended and updated by the Criminal Justice Act 2003 chapters 6 and 7.

For Scotland, the law is set out in the Prisoners and Criminal Proceedings (Scotland) Act 1993, as amended in relation to life prisoners by the Convention Rights (Compliance) (Scotland) Act 2001, which incorporated changes to ensure that the procedure is compliant with the European Convention on Human Rights.

Minimum term

Under the criminal law of England and Wales, a minimum term (formerly "tariff") is the minimum period that a person serving an indefinite sentence must serve before that person becomes eligible for parole. The sentencing judge bears responsibility for setting the minimum term.

The purpose of this mechanism has been described as follows:

“

The tariff is the minimum period a life sentence prisoner must serve to meet the requirements of retribution and deterrence before being considered for release. After this minimum period has been served release will only take place where the prisoner is judged no longer a risk of harm to the public. Hilary Benn, House of Commons Hansard Written Answers for 8 Jul 2002.

”

The factors involved in the determination of a tariff were contested in the 1993 case of Robert Thompson and Jon Venables, two boys around ten years old who were convicted of the murder of two-year-old James Bulger. Although the trial judge sentenced the killers to eight years in prison each, the Home Secretary (then Michael Howard) set a tariff of fifteen years, based in part on the public outcry over the murders. The House of Lords overturned this tariff, criticizing the Home Secretary for giving too much weight to public opinion. As discussed above, the Home Secretary lost this power in 2002.

A similar system operates in Scotland, whereby the trial judge fixes a "punishment part" to "satisfy the requirements of retribution and deterrence". The prisoner cannot be considered for parole until this punishment part is served.

Whole life order

Further information: List of prisoners with whole-life tariffs

The whole life order or whole life tariff is a mechanism whereby a prisoner is sentenced to remain in prison until his or her death. It came into force in 1983 when the Home Secretary began to set minimum terms that convicted killers had to serve before being considered for release on life licence. The intention of a whole life tariff was for a prisoner to spend an entire lifetime behind bars without ever being released, unless there were exceptional circumstances for a prisoner to go free. Trial judges were entitled to recommend that a life sentence prisoner's tariff would mean life, though in many cases the trial judge had recommended that an offender could be considered for parole after a number of years, only for the Home Secretary to later impose a whole life tariff.

The question of whether a Home Secretary should have the power to impose whole life tariffs is a controversial one since a decision to impose such a sanction (or not) can carry political consequences for the Home Secretary and, by extension, the government he serves. In 2002, a successful legal challenge by convicted double murderer Anthony Anderson saw the Home Secretary stripped of the final say on how long a life sentence prisoner must serve before parole can be considered - as well as the right to decide that certain prisoners should never be released.

The law was subsequently changed so that the trial judge was obliged to recommend a minimum number of years (or recommend that life should mean life) in the case of anyone being sentenced to life imprisonment, and that the final say rested with the High Court rather than the Home Secretary.

Only the Home Secretary can grant a release to a prisoner sentenced to a whole life tariff or whole life order, on compassionate grounds due to great age or infirmity. Only four prisoners known or believed to have been issued with a whole life tariff have been released on compassionate grounds. Three of them were IRA members who were freed under the Good Friday Agreement in 1999. The other was gang member Reggie Kray, freed from his life sentence in 2000 after serving 32 years, due to terminal cancer. He died within weeks of release.

Since whole life tariffs were introduced, the law has stated that defendants aged under 21 years cannot be subjected to such a recommendation or order.

Around 50 prisoners have been issued with whole life tariffs or orders since the mechanism was first introduced in 1983, although some of them were convicted of their crimes before that date and some of the prisoners known to have been issued with the whole life tariff have since died in prison.

Crimes where whole life order are recommended

• murder of two or more persons, where each murder involves any of the following :
  • a substantial degree of premeditation or planning,
  • the abduction of the victim, or
  • sexual or sadistic conduct,
• child murder if involving the abduction of the child or sexual or sadistic motivation,
• murder done for the purpose of advancing a political, religious or ideological cause,
• murder by an offender previously convicted of murder,
• other offence if the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high. For example, high treason can warrant such a sentence, if it is grave enough.^[8]

European Court review on whole life order

In February 2007, the European Court of Human Rights announced that it was considering whether it is a contravention of human rights for someone to be sentenced to lifelong imprisonment.^{[citation needed]} This news was made public just after David Bieber was due to lodge an appeal against the trial judge's recommendation that he should never be released from prison. His appeal was due to have been heard at this time, but was delayed due to this uncertainty as to whether lifelong imprisonment will remain lawful. If the European judges rule that lifelong imprisonment is a violation of human rights, all prisoners serving whole life orders will have their cases recalled to the courts for a new minimum term to be set. Such a ruling would be highly controversial in many other European countries where the option for whole-life sentences exists, as some European states have whole-life sentences, whereas others do not. For instance in the Netherlands, when a life sentence is passed, it is always intended to mean "life" and as such there is no possibility for parole. So far, just two Dutch life sentence prisoners have been freed, and it was due to terminal illness in both cases. In Spain, on the other hand, the maximum time anyone can serve in prison is 40 years.

A high proportion of prisoners who are unlikely to ever be released or have received very long sentences have declared their wish to die;^{[citation needed]} for example, Ian Brady. At least two such inmates have committed suicide in prison - Harold Shipman and Daniel Gonzalez.

References

1. ^ "Murder (Abolition of Death Penalty) Act 1965 (c.71)". www.opsi.gov.uk. http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1965/cukpga_19650071_en_1. Retrieved 2010-08-14. 
2. ^ BBC News website, 2007
3. ^ "The history of life". BBC News. 2006-06-16. http://news.bbc.co.uk/1/hi/magazine/5086978.stm. Retrieved 2010-05-07. 
4. ^ HM Courts Service: Review of Minimum Terms set for Young Offenders detained at her Majesty's Pleasure. Statement from the Lord Chief Justice about the 2000 changes.
5. ^ "Lords defy Blunkett on life sentences". BBC News. 2002-11-25. http://news.bbc.co.uk/1/hi/uk_politics/2509561.stm. Retrieved 2007-08-24. 
6. ^ "Judgments - Regina v Secretary of State for the Home Department (Respondent) Ex Parte Anderson (Fc) (Appellant)". House of Lords of the British Parliament. 2002-11-25. http://www.publications.parliament.uk/pa/ld200203/ldjudgmt/jd021125/ander-1.htm. Retrieved 2007-08-24. 
7. ^ "Killer's appeal delayed for 'rights' ruling". Yorkshire Post. http://www.yorkshiretoday.co.uk/ViewArticle.aspx?sectionid=55&articleid=2066396. 
8. ^ "Criminal Justice Act 2003 (c. 44)". www.opsi.gov.uk. http://www.opsi.gov.uk/acts/acts2003/ukpga_20030044_en_44#sch21. Retrieved 2010-03-08. 

External links

• Life Sentenced Prisoners in United Kingdom from HM Prison Service
• Information from Liberty website regarding United Kingdom