Criminal Bar Quarterly | Issue 1 - Spring 2012
SENTENCING
5
Sentences for Life?
PREFACE
Sentencing policy
CONTRIBUTOR
Richard Gibbs
n the immediate wake of the sentences handed to the two
convicted murderers of Stephen Lawrence, it was perhaps
inevitable that much ink would be spilled by the media
in contemporaneous assessments of the sentences given
to murderers. Equally, public confusion at the term “life
imprisonment” has come to the fore and is likely to remain so
given that the Attorney General is – at the time of writing –
reviewing whether the sentences handed down by Treacy J (a
member of the Sentencing Council), were too lenient.
However, whilst the recent trial holds the limelight, the
issue of the mandatory sentence for murder was receiving
increasing attention some time ago; first, with the release
of the report by the Homicide Review Advisory Group
Public Opinion and the Penalty for Murder on December
6, 2010 and secondly, in the comments by the Lord Chief
Justice in his annual press briefing the following day.
Underpinning both the remarks of the Lord Chief Justice
and the Homicide Review Advisory Group, was a sense that
the current sentencing regime is overly rigid and that it fails
to give sentencing Judges the flexibility needed to do justice
in individual cases. In that regard, it could be argued that
the problems with the mandatory life sentence are no greater
than those faced by sentencing Judges every day; namely,
that sentencing has evolved from an exercise by an individual
Judge, cognisant of the facts in a specific case, toward an
exercise in implementing a wider sentencing policy; one
that is centrally determined and implemented by way of the
Sentencing Guidelines. Of course, it is the degree to which
those “guidelines” serve as a euphemism for the instruction of
Judges in sentencing that is the germane point here.
Whilst, therefore, the debate on mandatory life sentences
for murder can be seen to be a part of a wider argument
about sentencing, the status of murder as the most serious
offence in the criminal law together with what the Lord
Chief Justice describes as the “fiendish difficulties” with
this area of law, means that the issue of the mandatory life
sentence for murder receives far greater attention.
The Law Commission Report – A Missed Opportunity?
To a great extent, the current debate on the mandatory
life sentence should be seen to have begun with the Law
Commissions’ 2006 report Murder, Manslaughter and
Infanticide. Commissioned and subsequently rejected by the
then Labour government, the report recommended that
© Cover image: Gettyimages/Stockbyte
I
instead of the current two-tier structure of general homicide
offences; namely, murder and manslaughter, there should be
a three-tier structure – first degree murder (mandatory life
sentence), second degree murder (discretionary life sentence)
and manslaughter (discretionary life sentence.) Whilst it is
true that the current furore surrounding the sentences for
Gary Dobson and David Norris for the murder of Stephen
Lawrence would have been unaffected by the implementation
of these changes – the issue at play being the fact that both
men, though now in their 30s, fell to be sentenced given
their age at the time of the commission of the offence –
the fact remains that the proposed changes would have
allowed a far more nuanced approach to the sentencing of
murderers generally. However, the quid pro quo for achieving
this nuanced approach would have been a considerable
amendment to the existing law of murder generally; the
introduction of US style first and secondary degree murder
and the wholesale reform of defences. Whilst this approach
has its supporters and is worthy of consideration, it perhaps
serves best as an indicator that something fundamental
requires reform in the way in which the law of murder
operates. Perhaps the opportunity, which was missed in
2006, was to recognize that the Law Commission had
identified some serious questions that required addressing,
though it is arguable that the answer they provided would
have served more to complicate the – seemingly ever
changing – criminal law. Rather, the main difficulty is the
fact that a finding of guilt in relation to murder de facto
means a mandatory life sentence; the Law Commission
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SENTENCING
sought to focus on defining murder differently which would
have had the ancillary effect of altering the sentencing
criteria but perhaps at the expense of clarity and their
proposals would certainly have done nothing to improve the
individualization of sentencing or judicial discretion to that
end. It is to this purpose that the Homicide Review Advisory
Group directs the thrust of its recommendations.
Judicial Discretion – Why Confine it Purely to Starting
Points?
The current sentencing regime rests primarily on three
statutory provisions which focus solely on the age of the
defendant. For those over 21, s.1(1) of the Murder (Abolition
of Death Penalty) Act 1965, stipulates life imprisonment
(mandatory sentence); for a person aged 18 but under 21,
s.93, PCC(S)A 2000, stipulates custody for life (mandatory
sentence) and for murder by a person aged under 18 at the
time of the offence, s.90, PCC(S)A 2000, provides the
penalty of detention at Her Majesty’s pleasure (mandatory
sentence.) Section 269 of the Criminal Justice Act 2003,
restates the mandatory life sentence for murder, but goes on
to require the sentencing court to pay regard to the principles
contained in sch.21 of the Act.
There is some judicial discretion afforded in sentencing
given that whilst s.269(5)(a), CJA 2003 requires that the
sentencing Judge allocates a starting point for the sentence,
it was confirmed in R. v. Sullivan and Others [2004] EWCA
Crim 1762, (para.11) that whilst the Judge must have regard
to statutory guidance, he is not bound to follow it and needs
only do so to the extent he considers appropriate.
Nonetheless, such flexibility is confined to the assessment
of the relevant starting point; the mandatory nature of
the life sentence is enshrined in the legislation and is not
something that the Judge can exercise any discretion over.
It is at this point that the conflicting approach between that
advocated by the Law Commission in 2006 and that which
exists in the current law can be seen in its starkest light; the
sentencing regime the Law Commission proposed would
have meant that any judicial discretion in the sentencing
exercise would have been focussed upon the individual
circumstances of the case as a means of determining the
overall sentence. The problem here – and one that the Lord
Chief Justice appears to have been alluding to – is that the
sentencing regime currently in place fails to focus on the
exigencies of the individual case. Where the intention of the
offender is to kill or cause serious injury, the law currently
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Spring 2012 - Issue 1 | Criminal Bar Quarterly
takes a highly prescriptive approach – as recognized by the
Homicide Review Advisory Group.
The Lord Chief Justice has put on record his desire
that if the issue ever comes before Parliament, it should be
subject to a free vote and this perhaps reflects his recognition
that the issue is politically a very hot potato. Whilst the
Homicide Review Advisory Group sought to rely heavily
for its contention that the public were ready to accept the
abolition of the mandatory life sentence on the 2010 report
by Professor Barry Mitchell and Professor Julian Roberts
for the Nuffield Foundation: Public Opinion and Sentencing
for Murder: An Empirical Investigation of Public Knowledge
and Attitudes in England and Wales, the reality remains that
the statistical analysis carried out for this report was – as
its authors acknowledge – less than a fully representative
attitude study of the public. The greater likelihood is that
the public recognize – as do most practitioners – that
the sentencing exercises should vary depending on the
circumstances of the murder and that matters such as joint
enterprise and the inclusion of intent to do serious harm
within the rubric of murder act as complicating factors that
cast doubt on the equity of mandatory life sentences.
A Straightforward Alternative to Mandatory Life
What the Homicide Review Advisory Group recommend is
that the simplest and easiest solution is the straightforward
abolition of the mandatory life sentence, replacing it with a
discretionary life sentence as originally advocated by the then
Lord Chief Justice, Lord Parker in his efforts to amend the
Murder (Abolition of Death Penalty) Bill in July 1965. Such
a change would permit the trial Judge to pass a sentence –
which would of course include life imprisonment – however,
he could equally not hand down a custodial sentence where
appropriate. The existence of the discretion to set the starting
point appears not to have resulted in arbitrary or idiosyncratic
outcomes and the removal of the mandatory requirement
would undoubtedly result in greater individualization of
sentences for murder. As the discretion relating to starting
points has shown, such discretion is not unfettered; the
existence of sentencing guidelines and evolving case law
would act to ensure consistency. 
Richard Gibbs
BPTC Student, College of Law Birmingham
Philip R Teichman and Major Scholar, Inner Temple
Pupil at St Ives Chambers Birmingham from October 2012
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