Should life mean life? Discuss and analyse the status of life sentencing under the UK law.
Should life mean life? Discuss and analyse the status of life sentencing under the UK law.
Before we consider an appropriate definition for a 'life' sentence, it is useful to consider the context within which serious offenders are sentenced in the UK today. The Judiciary, as it stands, determines the application or otherwise of life sentencing. Although there has been a trend in recent years for politicians to become involved in the setting of tariffs, it is still fundamentally a matter for individual judges to determine how long an offender should stay in prison depending on the particular merits of a case.
Life sentencing - like, indeed sentencing of any kind - can present judges with a frustrating and sometimes near-impossible task. They must juggle several often-conflicting sentencing aims in order to meet their goal. As well as considering the usual retributive and rehabilitative elements of a sentence, members of the judiciary presiding over cases in which life sentencing may be appropriate must also account for the physical and administrative implications, not to mention the cost to the public purse, of putting some one in prison. In these terms, life sentencing can be a balancing act: although a life tariff (whether that means 'whole life' or the more usual 15-20 years) must balance two potentially conflicting public interests: the necessity of protecting the community and rehabilitating the offender must be set against the long term cost of imprisonment.
The other problems the judges face when dealing with life sentencing issues are related to public perceptions. With sentencing being a central and highly acknowledged aspect of the criminal justice system, the Judiciary often bears the brunt of public criticism for being seen to either sentence to harshly, or, more often, for sentencing too leniently. In each case a decision has to be made regardless of the media coverage.
Additionally, it should be noted there are different types of standard life sentence, even before we consider whether or not life should mean a whole life tariff. There are three types of life sentence that exist with UK law today. Firstly if the prisoner is convicted of murder, then he is known as a mandatory lifer, because a life sentence is the only sentence that a court can pass for that offence. The law that governs sentencing for murder is based on the Murder (Abolition of the Death Penalty) Act 19651. Section 1(1) of this act tells us that if the defendant is over the age of 21 at the time of the offence then he must be sentenced to life imprisonment. Prior to 2003, the court would set a recommended tariff for the prisoner before sending it to the Home Secretary to amend as he saw fit, which in reality meant that before that date the Home Secretary was responsible to setting a mandatory lifer's tariff.
If, however, the prisoner is sentenced to life for another offence such as manslaughter, rape or armed robbery then he is known as a discretionary lifer - the presiding judge has made a decision to impose a life sentence, even though he or she was at liberty not to do so. The difference between these two categories of prisoner is import as parole and release procedures are different.
Finally, the court is also obliged to pass a sentence of life for anyone convicted of a second serious offence, these people are known as automatic discretionary lifers.
All life sentences within UK law are indeterminate. This means there is no fixed term, and prisoners will stay in prison until they are considered safe to release. However there are and have been a number of lifers - such as the now-deceased Myra Hindley - who are told because of the nature and severity of their crimes they are to serve a 'whole life' tariff, meaning they will remain imprisoned until they die unless released on humanitarian grounds - usually envisaged to mean the final stages of a terminal illness as seen with the infamous London gangster Ronnie Kray.
The average time a 'lifer' spends in prison before he or she is eligible for parole is 15 years, and those who are released are subject to a 'license' for the rest of their life - meaning they can be recalled to custody for breaching the conditions of their parole without any license-breaching offence they are believed to have committed ever even coming to trial. Given that this is a significant and life-long restriction on liberty, it is a matter of debate whether a 'lifer', even though he or she has only served 15 years, can ever be ...
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The average time a 'lifer' spends in prison before he or she is eligible for parole is 15 years, and those who are released are subject to a 'license' for the rest of their life - meaning they can be recalled to custody for breaching the conditions of their parole without any license-breaching offence they are believed to have committed ever even coming to trial. Given that this is a significant and life-long restriction on liberty, it is a matter of debate whether a 'lifer', even though he or she has only served 15 years, can ever be considered to be fully released. In the sense that the lifer's usual freedoms are permanently curtailed in this way, every life sentence can be considered to be 'for life' under existing UK sentencing procedures, irrespective of the amount of time actually served in custody.
For mandatory lifers the courts decide the length of tariff - a responsibility that was previously down to the Home Secretary but this power was revoked in 2003 as a result of the House of Lords ruling in favour of Anthony Anderson2, a convicted killer.
The question of whether it should be the home secretary or the courts to set mandatory life tariff had been challenged under the Human Rights Act and is a hotly-debated topic: should the fate of serious offenders rest with the professional judgment of a trial judge or with the democratic will of the people, as expressed through the Home Secretary? The situation is rather different for discretionary lifers, whose tariff is always set by the trial judge.
In the Anderson and Taylor case, the plaintiff, Anderson, claimed his human rights had been breached under Article 6 (1) of the Human Rights Convention3 which states the individual's right to a fair trial, and that the Government involvement in a judicial matter was a clear breach of this fundamental right.
This was because according to the Human Rights Act the trial had to be an "independent and impartial tribunal". However this was rejected by the Court of Appeal, which stated as its reasoning that the Home Secretary's act of setting a tariff was an administrative action and not a sentencing one and therefore did not breach the defendant's right to a fair trial. However, when this case finally reached the top of the legal hierarchy and ended up at the House of Lords, it was decided that the Court of Appeal was wrong in its decision. The Lords' ruling stated that section 29 of the Criminal sentences Act 1997 was unable to function alongside the Human Rights Act; a declaration of incompatibility was made.
Also in 2002, the case of Stafford v UK4, heard in the European Court of Human Rights (ECHR), declared that the Home Secretary's role in sentencing was not lawful according to Article 5 (1+4) of the convention, which states that it is not permissible for a politician to review an offender's continued detention. As a result of this, David Blunkett took measures in an attempt to reassure the British public and re-affirm his hard line on life-sentencing, stating in an interview that was broadcast on BBC television stating that '...life should mean life'5. He then vowed to use all domestic legislation to '...enshrine the power of Parliament to provide adequate punishment for the guilty - including life meaning life'.
Blunkett, in making this declaration, was behaving in an explicitly populist manner. The typical public point of view is that no one likes to see a person 'get away with murder', and the public as a whole like to see a murderer punished severely for his actions.
As a result of these crucial decisions Parliament decided to amend the law and did so by implementing the Criminal Justice Act 2003, which sets out guidelines for how long murderers in particular should spend in prison before being considered for parole and stated that it was for the trial judge to decide the minimum tariffs for a convicted criminal. However, within the Act was included a provision which stated that the Attorney General could appeal against sentences that he considered too harsh or too lenient - a provision which is seen as a safeguard and guarantee against irrational decisions by judges. The Act attempts to make the law consistent and help judges to determine sentencing. Within the Criminal Justice Act 20036 there were also guidelines set out which require the explicit consideration of an offender's motives in sentencing. Although the consideration of motive has long been a factor in sentencing - based on the consideration that there is a moral difference between a cold-blooded killer and a normally placid person who is provoked to deadly violence - the 2003 Act enshrines this principle in legislation.
For example, according to the Criminal Justice Act 2003, a murderer whose crimes involved sexual abuse, pre-planning or terrorism should receive a whole life tariff, whereas a single murder should receive a minimum of 15 years. The Act, therefore, is differentiating between the severities of murders in an attempt to achieve consistency of sentencing. This obviously causes a lot of controversy amongst the public. To a simplistic analysis it is not justifiable to say that the way and method of taking a life can mean punishment is more or less severe, the end result being the same. In recent years additional pressure has been placed on the Judiciary in this respect by the inclusion in trials of Victim Impact Statements, during which (in the example of a murder trial) tearful relatives of the victim take to the stand and underline the callousness of the crime. This policy of victim support might be desirable from a sociological point of view, but it cannot make the determination of life tariffs any easier for judges, who already have to operate within a significant media spotlight.
The shift in power governing the determination of a minimum tariff from the Home Secretary to the Judiciary represented a significant revolution in tariff management. On the one hand, people may take the point of view that sentencing should be left up to politicians as they are ultimately accountable to the general public, whereas judges are not. If politicians are denied the ability to set sentences, it might be asked, how can we (the general public) have any input into the process? As such, the Lords' decision could be construed as a reduction in accountability and the legal system's connection with its democratic roots. Conversely, British legal and legislative opinion has always sought to place some distance between the will of the people and the management of offenders, believing that sentencing is a matter of professional expertise rather than something that should be governed by the whim of the people. Defenders of this approach may point to the fact that, were public opinion to hold sway, sentences would be much longer and the cost of imprisonment much, much higher - another example of the general public demanding measures which it is generally unwilling to pay for through the taxation system.
This brings us closer to the central conflict between the populist 'life should mean life' and the judicial/professional 'sentencing should be discretionary' viewpoints. Most educated professionals working with offenders - whether they are lawyers or probation officers - tend to take the view that prison is ineffective as a deterrent and only serves as punishment insofar as it prevents criminals from inflicting further damage on society for the duration of their time in custody. In other words, they take a fundamentally rehabilitative view of criminal justice, while also acknowledging that it is important that offenders of whatever degree are seen to be punished.
The general public, on the other hand, tends to take a retributive view of punishment: life should mean life. In a recent BBC interview7, Lord Wolfe stated,
that recent surveys have shown that '...many victims and members of the public see sentences handed out by the judiciary as very inadequate.' This retributive viewpoint is also illustrated by the continuing popularity of the idea of the death penalty, a punishment which by its very nature can never be considered rehabilitative.
Judges have to use their professional wisdom and ability, but they also have to remember that they are public servants who work with the consent of the people of the UK. As such, the dilemma they face in sentencing - and in deciding the length of life tariffs - is whether to let the public will override their professional judgment, or vice versa. A situation like this clearly depends on the character and opinions of the individual judge and the extent to which he or she is inclined to cave into the perceived weight of public opinion. As such, it is something of a recipe for inconsistent decisions.
Currently, all those convicted of murder are sentenced to a mandatory life sentence. The mandatory life sentence was one of the suggested replacements that led to the final abolition of the death penalty, and in itself was seen as a sufficient penalty to deter potential wrongdoers. How any punishment given out by a civilized society could be considered 'sufficient' deterrent against murder is questionable: even the death penalty clearly did not deter those who suffered it from committing their crimes. However, the mandatory life sentence is still seen as a key deterrent to murder. Recently, however, it has been criticised for its inflexibility.
Lord Chief Justice Phillips voiced his opposition to the mandatory life sentence stating it 'misleads the public'8, yet Government ministers still insist the law must remain how it is to reflect the unique seriousness of murder. Once again, the conflict between professional expertise and professional opinion - manifested in this case in ministers' unwillingness to be seen as 'soft' on crime - can be seen to have a potential effect on judicial decision-making.
Lord Phillips said that in the 'current context' mandatory life sentences were 'not a good idea' because of the wide range of offences for which they are used. For example, murder ranges over a wide area. It includes a mercy killing by a husband who sees his wife suffering and smothers her with a pillow. He may be convicted of murder and, if he is, then it is said he is going to receive a 'life sentence'. However, in reality, the sentence he will be required to serve may be very brief indeed.
Lord Phillips warned that jails would be full of 'geriatric lifers' in future because of guidelines on minimum terms set out in the Criminal Justice Act 2003. In the final analysis, there are positives and negatives to mandatory life sentencing. People who think mandatory sentencing does work believe it reduces crime and does provide uniformity in sentencing, where potential criminals are certain of their sentence if they are caught.
Opponents of mandatory life sentencing might argue that the punishment should fit the crime: as there are different degrees of viciousness and malice involved in individual rapes and murders, so there should be a flexibility of punishment that allows the judge to tailor the sentence exactly to the specific offence. A further argument states that an offender who knows he is committing a crime that attracts an automatic life sentence might well think that he might as well be hanged for a sheep as a goat, and commit two or three rapes or two or three murders rather than just one. A public policy of more flexible sentencing sends a message to the offender that the more serious his crime, the more extreme the punishment he will suffer. Additionally, in assessing life sentencing under the current UK law and pondering the question of whether life should mean life, it's necessary to understand the constraints in which the courts must operate. The recent increase in criminals facing a life sentence is in itself having an effect on sentencing: not only does it mean over crowded prisons and a sap on taxpayers' money (leading to pressure on judges to impose lighter sentences). It is also related to pressure, on cost grounds, for the rapid disposal of each case with the possibility corners may be cut and the quality of decisions may deteriorate.
A major difficulty of determining the effectiveness or desirability of life sentences is that the crimes with which life sentencing are associated are often highly emotive - murders, rapes, acts of terrorism and so on. Politicians and the public feel they have a right to 'get involved' in cases such as these to a greater extent than they do with lesser offences, although there is little logical reason why that should be the case: a crime is a crime, and although different crimes are differentiated by their degree the courts handle them all according to similar procedures.
However, because the most serious crimes are by their nature the most reported, it is only on the basis of the handling of serious offenders that the public forms its level of confidence in the Judiciary. It might be argued, therefore, that as public opinion demands tough sentencing, tough sentences should be delivered to retain public confidence in the criminal justice system. On the other hand, we must define the difference between laws made by the people and laws made by the mob; the politicians who govern our criminal justice system are not only democratically accountable - they are vulnerable to shifting tides in public opinion, which, by its nature, is rarely thought through in a careful way.
Neither should we forget the role of prisons and the necessity that they continue to function in an efficient, humane and cost-effective manner. Prisons are accepted to be places for rehabilitation as well as punishment, institutions that mould a person and teach him to be beneficial to society as opposed to a threat to it. If life were truly to mean life then prison would simply become a dumping ground for lost souls - a convenient dustbin for those offenders who exist in the limbo between society's reluctance to exact the death penalty and its equal reluctance to grant the possibility of rehabilitation and redemption to individuals who are guilty of the most serious crimes.
Bibliography
Glazebrook,P. (2007) Blackstone's Statutes on Criminal law London: Blackstones
Dyer, C. (ed.) (2007) Guardian Newspaper cited: http://politics.guardian.co.uk/constitution/story/0,,2041021,00.html
Ashworth, A. (2005) Sentencing and Criminal Justice Cambridge: Cambridge University Press
Cullen, E. & Newell, T. (1999) Murderers and life imprisonment Winchester: Waterside Press
Quinn, F. & Elliot, C. (2006) Criminal Law Harlow: Pearson/Longman
Gibson, B. & Watkins, M. (2004) The Criminal Justice Act 2003: An Introduction To New Procedures and Sentencing. Winchester: Waterside Press
Murder (Abolition of the Death Penalty) Act 1965.
2 R v Secretary of State for the Home Dept ex parte Anderson and Taylor [2002] UKHL 46
3 European Convention of Human Rights
4 Stafford v United Kingdom (2002)
5 Tuesday, 18 June, 2002, 15:52 GMT 16:52 cited: http://news.bbc.co.uk/1/hi/uk/2051660.stm
6 Criminal justice Act 2003
7 Monday, 8th of July 2002 cited: http://news.bbc.co.uk/1/hi/uk_politics/2116082.stm
8 Clare Dyer, Legal editor of The Guardian Newspaper Friday March 23, 2007
cited: http://politics.guardian.co.uk/constitution/story/0,,2041021,00.html
