Application of the draft guideline
to murder: conclusions
36. The 2003 Act carries forward previous provisions
in relation to reduction for a guilty plea, and explicitly states
that these apply to the new arrangements for murder tariffs. There
is no mention in the Act (or in parliamentary debate during the
passage of the Act) of any restriction of these provisions to,
in the Home Secretary's words, "genuinely exceptional circumstances".
37. It is not clear whether, at the time of the
passage of the 2003 Act, either the Home Secretary or the House
at large realised the full implications of paragraph 12 of Schedule
21 to the Act. This situation almost certainly arose because the
provisions relating to murder tariffs were introduced by way of
government new clauses at report stage, i.e. comparatively late
in the passage of the Bill through the House. This prevented effective
parliamentary scrutiny either by select or standing committee.
It is a classic illustration of the truth of the maxim, "legislate
in haste and repent at leisure". We hope the lesson will
be learnt by the Home Office and the House that it is highly undesirable
for major criminal justice provisions to be put before Parliament
at a late stage in proceedings on a Bill. The House and the public
have the right to expect that in future adequate time will be
allowed for effective scrutiny of major legislative proposals.
38. The question of the "unique nature of the
offence of murder", also referred to by the Home Secretary,
has been the subject of debate in legal and political circles.
On the one hand, murder is obviously a very serious offence and
in many cases crimes of murder are justifiably regarded with deep
abhorrence by the public. On the other hand, murder covers a very
wide range of circumstances. A former Lord Chancellor, Lord Hailsham
of St Marylebone, commented in a case before the House of Lords
in 1987 that:
Murder, as every practitioner of the law knows, though
often described as [an offence] of the utmost heinousness, is
not in fact necessarily so, but consists in a whole bundle of
offences of vastly differing degrees of culpability, ranging from
brutal, cynical and repeated offences like the so called Moors
murders to the almost venial, if objectively immoral, 'mercy killing'
of a beloved partner.[27]
39. Murder undoubtedly encompasses a range of acts
of differing degrees of culpability, which merit a corresponding
range of sentencing options. However, by making express provision
for murder tariffs in the 2003 Act, Parliament sent a clear signal
that it does wish murder to be treated as significantly different
from other offences—and we endorse this view. We believe
that the Sentencing Guidelines Council acted in a reasonable manner
when it included murder as well as other offences within the ambit
of the draft guideline. Nonetheless we believe that the draft
in its present form does not fully reflect the wishes of Parliament
indicated by the enactment of the special provisions for murder
in the 2003 Act. Nor does it fully reflect public disquiet about
the extent to which reductions for a guilty plea, especially when
applied in addition to reductions for other 'mitigating circumstances',
may reduce sentences for murder significantly below the 'starting
points' set out in the Act.
40. It should be pointed out that neither in the
2003 Act, nor in any earlier statute, is the appropriate level
of reduction in sentence for a guilty plea stated. The draft guideline's
indication that 33% is an appropriate reduction where a guilty
plea has been entered early is founded not on statute but on longstanding
practice and 'legitimate expectation', and the Panel's assessment
of "the normal approach" of the courts in the past.
41. We note that there is no clear statistical evidence
on the extent to which reductions in sentence for a guilty plea
have hitherto been applied to murder tariffs. It is therefore
impossible to be entirely certain that the proposed guidelines
do, as is claimed, merely reflect current practice.
42. We also note in passing that early guilty pleas
are relatively uncommon in murder cases, compared with other crimes.
We believe that media coverage which suggested that reductions
in murder tariffs would be widespread and commonplace under the
new guidelines was irresponsible and misleading.
43. The 2003 Act does explicitly limit any reduction
in sentence, to 20%, in the case of two specific offences, drug
trafficking and third-time burglars. We considered whether
the draft guideline might be amended to indicate a 20% limit in
murder cases. This might be justified by analogy with the
2003 Act's provision in the case of these other two mandatory
sentences, on the grounds that in the case of murder the convention
of discounting by one third is less well established, because
of the relatively recent introduction of tariffs. It could be
argued that such a limitation would reflect the particular gravity
of the offence of murder and the public's abhorrence of it.
However, there is a strong argument that any such limitation should
be imposed through statute, and that in the absence of express
statutory provision such a model might be subject to challenge
in the courts. There is also the point that the existing 20% limit
applies to two categories of the so-called 'three strikes and
you are out' rules; there is no obvious analogy with murder cases.
For these reasons we do not favour such an amendment to the draft
guideline at this stage (but see our further recommendation in
paragraph 44 below).
44. We think there are two ways forward. In the
medium term, the best solution might well be for Parliament to
legislate to remove the ambiguity and confusion which has inadvertently
arisen out of the conjunction of the 2003 Act's provisions and
the draft guideline, by making express statutory provision for
some restriction, in respect of murder, of the normal reductions
in sentence for a guilty plea.
45. In the short term, we recommend that the Sentencing
Guidelines Council should consider possible ways of amending the
draft guideline in order to reflect Parliament's clear wish that
murder be treated as a separate and especially grave category
of offence. In particular, we ask the Council to take account
of public concern over the extent to which reduction in sentence
for a guilty plea, in addition to reductions for other mitigating
circumstances, may produce a 'multiplier effect' which reduces
individual sentences for murder very significantly below the starting
points set out in the 2003 Act. We would wish to see sentencers
advised that in the case of murder, reduction in sentence for
a guilty plea should not normally be granted in addition to reductions
for other mitigating circumstances. It may be that further legislation
is required in order to give legal authority to this recommendation;
but if it were possible for the Council, without acting ultra
vires, to amend the draft guideline along these lines, this
would undoubtedly help to maintain public confidence in the criminal
justice system.
46. Finally, we recommend that the guideline should
explicitly state, for the avoidance of any doubt, that the starting
points for murder tariffs specified in the 2003 Act supersede
those contained in the 2002 Advice and any subsequent restatements
of it.
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