Annex
The recent history of sentencing in murder cases
Since the Murder (Abolition of Death Penalty) Act
1965, the mandatory life sentence has been applied to all convictions
for murder: and responsibility was placed with the Home Secretary
to keep prisoners under continuous review, and to authorise release
at the most appropriate time. The rationale for this was that
trial judges would not be in a position to know the right point
at which to achieve appropriate and safe release: and the factors
that should be considered were the gravity of the offence, the
safety of the public, and the danger of destroying by degrees
over long years a life which society had refrained from destroying
at the beginning. This was the first call for the establishment
of a Parole Board, which was subsequently created (by the Criminal
Justice Act 1967) to advise on risk and to make recommendations
as to release.
The Home Secretary (Sir Frank Soskice) urged "the
greatest care" in the exercise of this discretion saying
that, except where absolutely necessary, deterioration of the
personality should not be allowed to set in, nor the chances of
reintegration permitted to diminish. It was known that 9 or 10
years was the maximum that "normal human beings can undergo
without their personality decaying, their will going, and their
becoming progressively less able to re-enter society and look
after themselves and becomes useful citizens"[36]
This was a clear recognition of the public interest in rehabilitation;
and litigation (see below) has gradually had the effect of transferring
the Home Secretary's original functions to the Parole Board.
On 11 November 1983, the then Home Secretary, Rt
Hon Leon Brittan MP, announced changes in the administration of
life sentences. They were not put before Parliament. The new
arrangements introduced tariffs: minimum terms that had to be
served to satisfy the requirements of retribution and deterrence.
On the expiration of the tariff, the Parole Board would review,
and might recommend release if the prisoner were not regarded
as dangerous. Then the Home Secretary would decide whether to
accept the recommendation. If release were not recommended, another
date for parole review would be set. Post-tariff detention was
therefore justified on grounds of dangerousness. Tariffs, or minimum
terms, were to be set by the Home Secretary; and trial judges
and the Lord Chief Justice were to be consulted and to make recommendations.
These changes have been controversial, and have sparked
off considerable litigation. The Home Secretary lost his role
in setting tariffs in discretionary lifer (non murder) cases[37]
(when it appeared that their lesser culpability had not been taken
into account). Trial judges became responsible for setting tariffs
in these cases; and following a European court decision[38]
they were granted oral Parole Board hearings, (implemented by
the Criminal Justice Act 1991) at which their release could be
ordered directly, without reference to the Home Secretary.
These principles have gradually been extended both
to HMP detainees (under 18-year-olds convicted of murder) and
to mandatory lifers, again by means of litigation. The House of
Lords ruled that there should be disclosure of judicial recommendations
as to tariff, together with the right to make representations
in 1993.[39]
By this time, aided by the findings of the 1989 (House of Lords)
Select Committee (which had uncovered ministerial increases of
tariffs in a large percentage of cases) criticism of the Home
Secretary's role gathered momentum. The Home Affairs Committee
produced a report in 1996 (Murder: the Mandatory Life Sentence)
recommending that both tariff and release decisions should be
removed from the Home Secretary; and that the trial judge should
decide on tariff, with both prosecution and defence having the
right to appeal to the Court of Appeal.
These changes did not, however, occur until after
the implementation of the Human Rights Act. Successive decisions
had made it clear that the courts regarded tariff-setting as a
"sentencing exercise"[40]
and this argument, taken in conjunction with the provisions of
Article 6 (of the European Convention) requiring trials (and sentences)
to be conducted by an impartial and independent tribunal, has
eventually succeeded. The European Court decision in the case
of Venables and Thompson[41]
ruled that the Home Secretary, as part of the executive, was not
impartial or independent: and thus was precluded from setting
tariffs for HMP detainees. A former case[42]
had given them access to oral Parole Board hearings.
Mandatory lifers are now in the same position, following
other court decisions.[43]
It appears that the provisions in the Criminal Justice Act 2003
(Schedule 21) identifying starting points of 15 and 30 years from
which trial judges must begin to calculate tariffs may be a response
to this litigation.
36 HC Deb, 21 December 1964, col 927 Back
37 ExparteHandscombe(1988)86CrimAppR59 Back
38 ThynneGunnellandWilsonvUK(1990)13EHRR666 Back
39 ExparteDoody19933AllER92-113 Back
40 ExpartePierson
(1997)3AllER Back
41 T&VvUK16December1999 Back
42 HussainandSinghvUK26February1996 Back
43 ExparteAnderson,
HL Judgement 25 November
2002;andStaffordvUKMay2002 Back
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