We covered the case of Ian McLoughlin, who was sentenced to life with a minimum term of 40 years for his second murder (and third homicide) last month. One of the questions that we raised was why he did not receive a whole life tariff. Well, it seems that we will be finding out the answer to that one soon…
On 6th November 2013 it was announced that the Attorney-General would be referring the sentence to the Court of Appeal (effectively a prosecutor’s appeal). There has not been an official announcement that we have seen, but the BBC quoted him as saying “The attorney general considers that a whole-life order ought to have been made on the facts of the case and that the sentence was, therefore, unduly lenient.”
The sentence (and the possible reasoning for it) generated a fair amount of interest in the legal community. One of the advantages of an Attorney-General’s reference is that the Court of Appeal will probably deal with it quite quickly. It is likely that the Lord Chief Justice will be taking this one, due to the political questions that it will raise, which will be a good way for him to introduce himself to the world at large.
We will come back to it when it is heard, but it is certainly one to watch …
DISCLAIMER – This is just my view … But it sees to me that this is not a sentence that should be appealed.
Am Attorney-General’s reference can only succeed if the sentence is ‘unduly lenient‘. This means “ it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate“.There is a provision that allows the question to be asked whether the judge erred in law as to his powers of sentencing“and, if he did, then this can somehow be ‘deemed’ to be unduly lenient. So, if the Judge did wrongly conclude that a whole life tariff is unavailable to him, then this can be a ground for referral.
However, the CPS policy does indicate that this will be the case “if the judge has erred in law as to his/her powers of sentencing (section 36(2)) to the extent that the resulting sentence is unduly lenient. (emphasis added)”. This would accord with a common sense reading of the law – even if the Judge erred, then one must stand back and ask if the sentence is unduly lenient, given all the facts.
A sentence of life imprisonment is the harshest sentence that can be imposed. There is a power to refer such a sentence if the tariff is too low, but it is worth bearing in mind that it is still a life sentence.
Here, Mr McGloughlin cannot possibly be released before he is 95. Most people will serve longer than their tariff, so it is extremely unlikely that he will be released before his 100th birthday. The tariff of 40 years, whilst not in theory a whole life tariff, is in practice, identical to one. Mr McGloughlin’s life expectancy (looking at the Office National Statistics data) is about another 24 years. His chances of living till 95 are minimal – less than 4% of 55 year old men will make it that far, and I’d be willing to bet a lot of money that Mr McGloughlin isn’t one of them. Life expectancy in prison, and for those who go to prison, is generally lower (I’m not saying that there is necessarily a direct causal link).
Leaving aside the question of the ECHR for one moment, can it sensibly be said that a life sentence with a minimum term of 40 years is lenient, let alone unduly lenient?
The Oxford Dictionary defines lenient as “more merciful or tolerant than expected“. It seems to me that to say the sentence passed was not only lenient, but ‘unduly’ so is to do extreme violence to the English language. It is hard to see how anyone can sensibly say that the sentence itself meets the test.
So here is my concern – is this being referred because of the political question raised by the sentencing exercise? It is hard to see how that is not the case. I await the analysis of the Court of Appeal with interest!