Tony McCluskie was convicted on 30th January 2013at the Central Criminal Court (Old Bailey) of the murder of his sister; Gemma. He was sentenced on the same day to life imprisonment – mandatory for murder – with a ‘tariff’ of 20 years. For a full explanation of the setting of tariffs, and what a life sentence means, see here.
Following an argument with his sister, with whom he was staying, and during a difficult period in his life, Mr McCluskie hit Gemma on the back of her head at least twice. This killed her. The Judge was prepared to accept that he wasn’t intending to kill her, but this provided less mitigation than usual because of the severity of the injuries. After that, he set about dismembering her body and disposed of in the canal in an attempt to avoid detection. He kept up the pretence of not knowing anything about her disappearance until her body was discovered.
How did the Judge come to set a term of 20 years?
In this case we have, all too unusually, the Judge’s sentencing remarks. This may be because of the high profile nature of the case. Also, Fulford J seems to be particularly good at ensuring his sentencing remarks are made public.
This does help greatly. The Judge took the ‘usual’ starting point of 15 years. The mitigating features were the absence of the intention to kill (although this was only a very slight mitigating feature as mentioned above) and the fact that Mr McCluskie had no previous convictions of any note – he had no history of violence and this offence was not premeditated.
However, these were greatly outweighted by the aggravating features. Firstly, and most significantly, the violation of Gemma’s corpse and the elaborate attempts to prevent detection (had that succeeded, her family would not have known the whereabouts of her and been able to bury her (and would not have known for sure that she had died).
The Judge also took account of the fact that Mr McCluskie had attempted to shift the blame onto Gemma and besmirched her character during the trial.
As there was a trial, there was no credit for a plea of guilty. The Judge considered the various aggravating and mitigating features and increased the sentence from 5 years from the starting point of 15 years to reflect this.
Is the sentence right?
On reading the news reports, our first reaction was that the tariff was too long (not by much, perhaps by 2 or 3 years). However, reading the sentencing remarks of the Judge, his reasoning can be seen and we would suggest that the sentence is well within the range of what would be expected. For that reason, whilst there may be an appeal, it is unlikely to be successful.
It must be remembered that this does not mean that Mr McCluskie will be automatically released after 20 years. He will not be released until the Parole Board have determined that it is safe for him to be released. The 20 year period is the minimum time that he will have to spend in prison.
Does the fact the jury was not unanimous make a difference to the sentence?
No. The law is binary. Once someone is convicted by a jury, they are determined to be guilty. It does not matter if it is a unanimous verdict after thinking about it for ten minutes, or a 10-2 verdict after days of retirement – there are no gradations of guilt. For a Judge to take this into account would be to case doubt on the conviction which would not be right.