Life imprisonment in England and Wales

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, one carrying the death penalty and one life imprisonment, 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life sentence, but who are a danger to the public and so should not be released until the Parole Board decides they no longer represent a risk.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

When Parliament was considering abolition of the death penalty, there were many MPs who were against the reform, and the deal offered was that former capital offences would always inevitably merit a mandatory life sentence. Accordingly, life imprisonment replaced the death penalty as punishment for murderers, firstly for those whose sentences were commuted and later for those whose crimes were not "aggravated" within the meaning of the Homicide Act 1957. To begin with, it was fairly common for those sentenced to life to be released in around ten to fifteen years.^[3] As time passed, it came to be thought that longer sentences should be imposed, especially in cases such as the Moors Murders, the Yorkshire Ripper and Dennis Nilsen. The Home Secretary (and now the Minister for Justice) was empowered to make Whole Life Orders to ensure that particularly dangerous or heinous criminals were never released. Presently mandatory lifers serve an average of 14 years and for other lifers the average has been in decline and now stands at nine years.^[3]

The Criminal Justice Act 2003

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 sets 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.^[7] The guidelines recommended that multiple murderers (who murder two or more people) whose crimes involved sexual abuse, pre-planning, abduction or terrorism should never be released from prison. Such a sentence is known as a "whole life order". The murder of a single child following abduction, sexual or sadistic conduct also qualifies, as does the murder of a police or prison officer during the course of their duty (since 2015) and murder committed to advance a political, religious or ideological cause. 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,^[8] 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, so that he would not be released until at least 2041, at the age of 75. 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; this crime met the guidelines for a whole life term as it involved planning and resulted in the death of more than one person. Angus Sinclair, who had been locked up since 1982 for child abuse, was given a minimum term of 37 years in 2015 for murder. This means he will almost certainly die in prison as he is already 69.

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, or can only be considered for release on appeal to the High Court, or in exceptional circumstances such as great age or ill health. By 2015, there were at least 60 prisoners in the England and Wales serving such sentences, issued by either the High Court or the Home Office. These include Moors Murderer Ian Brady and "Yorkshire Ripper" Peter Sutcliffe. A number of other prisoners have died in prison when serving such sentences, including Myra Hindley (the other Moors Murderer) and serial killer GP Harold Shipman.

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. The Scottish legal system does not allow a whole life sentence to be issued.

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.

For example for a murder, someone may be given a life sentence with a minimum term of 15 years. This means they cannot be released on parole until the minimum term is served.

Starting points for murder

The terms below are only guidelines for adults, and starting points vary in different legal cases. Starting points may either be increased or decreased depending on aggravating and/or mitigating factors respectively. The guidelines are in Schedule 21 of the Act.

Whole-life orders cannot be given to offenders under the age of 21.^[11][12]

Whole life order

The whole life order (formerly a whole life tariff) is a court order whereby a prisoner who is being sentenced to life imprisonment is ordered to serve that sentence without possibility of parole. This order may be made in cases of aggravated murders committed by anyone who was aged 21 or above at the time of the crime. The purpose of a whole life order is for a prisoner to be kept in prison until he or she dies, although in exceptional circumstances a prisoner can still be released by the Home Secretary on compassionate grounds such as great age or ill health. A whole life tariff can also be quashed on appeal by the Court of Appeal.

From 1983, the Home Secretary had the right to decide how long a life sentence prisoner should serve before being considered for parole, and the trial judge was not obliged to recommend when or if an offender should be considered for parole. In some cases, the trial judge had recommended that a life sentence prisoner should at some point be considered for parole, 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 was a controversial one, since a decision to impose such a sanction (or not) could carry political consequences for the Home Secretary and, by extension, the government he served - as well as a backlash by the tabloid media. Perhaps the most notable example is Myra Hindley, jailed for life in 1966 for her role in the Moors Murders. Her original 25-year minimum term was subsequently increased to 30 years and then to "whole life" by a succession of Home Secretaries. Hindley's supporters claimed that she was being denied the chance of parole to serve the interests of successive Home Secretaries and their governments - even some who opposed Hindley's release felt that her fate should not be determined by politicians.

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, including the right to decide that certain prisoners should never be released. In the following year the Criminal Justice Act 2003 was passed, which required that the trial judge recommended the minimum number of years to be served (or order that life should mean life) in the case of anyone being sentenced to life imprisonment.^[13] As had been the case when the Home Secretary could decide on the minimum length of a life sentence, prisoners were entitled to have their tariff reviewed by the High Court. These prisoners can also appeal to the European Court of Human Rights if their appeals to the High Court are unsuccessful.^[14]

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 ill health. 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, having spent two decades in prison. The other was gang member Reggie Kray, who was freed from his life sentence in 2000 after serving 32 years (two years after the expiry of his original 30-year minimum term) due to terminal cancer. He died within weeks of release.

Many prisoners have also received minimum sentences which are likely to last for most if not all of their remaining lives, such as Roy Whiting and Ian Huntley, who were both convicted of child murder and received 40-year minimum terms which mean that they cannot apply for parole until they are at least 82 and 68 respectively. Whiting's trial judge had originally recommended that life should mean life and just before the High Court stripped politicians of their sentencing powers in November 2002, Home Secretary David Blunkett set Whiting's minimum term at 50 years, which was effectively a whole life tariff as it meant that he could only apply for parole if he lived to be at least 92. This decision was later appealed before the High Court, and the tariff was reduced to a 40-year minimum term.

Perhaps the most notable prisoner to have been issued with a whole life tariff is Myra Hindley, who was jailed for life in 1966 for her part in the Moors Murders with Ian Brady. Her original 25-year minimum term was increased to 30 years by a High Court judge in 1988, before Home Secretary David Waddington ruled in 1990 that life should mean life for Hindley. His successors Michael Howard, Jack Straw and David Blunkett agreed with this ruling over the next 11 years. Between 1997 and 2000, Hindley made three appeals against the ruling that life should mean life in her case, but each was unsuccessful. She remained in prison until her death in November 2002, 36 years after she was jailed. Ian Brady was also told by a succession of Home Secretaries that his life sentence should mean life, but has insisted that he never wants to be released and since the late 1990s has made legal challenges to be allowed to die, but has so far been unsuccessful.

Since 2003 the law has provided that whole life orders cannot be issued to anyone who was under the age of 21 at the time of their crime, although there had never been a previous case of a whole life tariff being imposed or recommended to someone who committed their crime before the age of 21.^[15]

Around 80 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.

A high proportion of prisoners who are unlikely to ever be released or have received very long sentences have declared their wish to die; for example, Ian Brady. At least two such inmates have committed suicide in prison, Harold Shipman and Daniel Gonzalez and at there have been attempted suicides by such prisoners, including Ian Huntley. A number have since died in prison as a result of ill health, including Brady's accomplice Myra Hindley and the "Black Panther" serial murderer and armed robber Donald Neilson.

Whole life sentences have also been criticised in some quarters for giving offenders no incentive to behave well and co-operate with prison staff, or make any serious attempt at rehabilitation. This was highlighted by the case of Robert Mawdsley, jailed for life in 1975, who went on to kill three inmates several years into his sentence. In 2016, a second such murderer, Victor Castigador, admitted murdering another prisoner. At least two other such prisoners have seriously wounded other inmates in prison. Just after being jailed for life in 2005, spree killer Mark Hobson poured a bucket of boiling water over Ian Huntley. In 2012, convicted double murderer Gary Vinter admitted slashing Roy Whiting with a sharpened toilet brush handle. Four years later, Vinter admitted the attempted murder of another inmate who was left with a traumatic brain injury and blinded in one eye. Vinter's lawyer claimed after the second attack that the absence of any likelihood of eventual release from prison had left him with no incentive to co-operate with the prison regime.

Crimes where whole life orders are the starting point

• Murder of two or more persons, where each murder involves any of the following:^[16]
  • 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.
• murder of a police or prison officer in the execution of their duties.

European Court of Human Rights cases on whole life orders

Three convicted murderers, Jeremy Bamber, Peter Moore and Douglas Vinter, all murderers who had been sentenced to whole life orders, applied to the European Court of Human Rights in Strasbourg, for the court to declare that it is a contravention of the European Convention on Human Rights for someone to be sentenced to lifelong imprisonment. The court ruled that because the whole-life orders were imposed by a judge only after consideration of the facts of each case, and because the life prisoners could apply to the Home Secretary for compassionate release, their whole life orders did not breach the murderers' human rights.^[17][18] A later appeal by the same men led to a ruling in July 2013 that there must be a prospect of review of whole-life tariffs, and that any impossibility of parole would violate their Article 3 rights.^[19] By this stage there were at least 49 prisoners serving such sentences, although the tariff had been used on many more occasions when sentencing prisoners who had since died.^[20]

The European Court of Human Rights stated whole-life orders could be justified but should be reviewed after 25 years. Five judges at the Court of Appeal found the Strasbourg court was incorrect in concluding English and Welsh law never allowed whole life orders to be reduced because the Secretary of State could reduce such orders in "exceptional circumstances". Lord Thomas, current Lord Chief Justice said whole life orders were compatible with the European Convention on Human Rights in cases of extremely heinous crimes. Thomas said further, "Judges should therefore continue as they have done to impose whole-life orders in those rare and exceptional cases. (...) In our judgment the law of England and Wales therefore does provide to an offender 'hope' or the 'possibility' of release in exceptional circumstances which render the just punishment originally imposed no longer justifiable" ^[21]

In 2015 the European Court upheld the lawfulness of whole life orders, on the ground that they can be reviewed in exceptional circumstances.^[22]

References

External links

• Schedule 21 of the Criminal Justice Act 2003, from legislation.gov.uk
• Life Sentenced Prisoners in United Kingdom from Ministry of Justice
• Information from Liberty website regarding United Kingdom