Category Archives: Caselaw Update

Summaries of interesting or important cases.

‘Lex mitior’ – IPP, Extended sentences and giving defendants the benefit of new, lenient, legislation

prison wing

The transcript is available here: R v Docherty [2014] EWCA Crim 1197

Shaun Docherty pleaded guilty to two charges of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. On 20 December 2012 he was sentenced by the learned judge to a term of imprisonment for public protection (“IPP”) with a specified minimum custodial term of 5 years and 4 months.

The facts are unimportant for the purposes of the case, but are recounted in the judgment, with some additional information surrounding the proceedings, at paras [2] – [13].

The probation service concluded that a) he posed a high risk of serious harm – in summary, considered him to be ‘dangerous’ – b) there was a very high risk of violent re-offending, and c) the most appropriate sentence was IPP.

The Judge had regard to that report and found that Docherty was indeed ‘dangerous’ and imposed an IPP sentence.

There was no challenge to the length of the minimum term.

The issues

Where to start? Well IPP was repealed on 3 December 2012. Docherty was sentenced on 20 December 2012, a short while before the repeal was effective.

At that time, the scheme for sentencing dangerous offenders – where a judge considers that a defendant poses a significant risk of serious harm to members o the public – was as follows:

1)      Life sentence (discretionary, under common law or CJA 2003 s.225)

2)      IPP (CJA 2003 s.225)

3)      Extended sentences or ‘EPP’ (the previous incarnation, CJA 2003 s 227)

The grounds of appeal were as follows:

a)     The judge failed to consider whether lesser restrictions, including the old style extended sentence of public protection (“EPP”) under the 2003 Act, instead of IPP would have enabled proper protection of the public.

b)      The abolition of IPP prior to the sentencing in this case obliged the court to impose an EPP rather than an IPP in order to comply with Article 7 (or Articles 5 and 14) of the European Convention on Human Rights (“ECHR”) and the international norm and principle of “lex mitior”.

In essence, the argument was that IPP was wrong in principle.

The first ground

‘The Judge failed to consider whether a lesser sentence would have enabled proper protection of the public.’

In C & Others [2009] 1 WLR 2158 the Lord Chief Justice stated that IPP was the “most draconian sentence” apart from life, and that it should not be imposed if an overall sentence package of lesser measures provides appropriate protection to the public. [20]

The Court of Appeal accepted that ‘ the judge did not expressly give reasons in his judgment for not adopting the alternative of an extended sentence, with other precautionary measures.’ [21]

However, the Court found that the reason was ‘entirely clear’, namely that:

i) the judge was unable to discern the time scale within which the danger posed by the appellant could be addressed, controlled and (hopefully) eliminated.

ii) a discretionary life sentence had been discounted (due to the availability of IPP.

iii) there was a perceived need for the parole board to assess the risk posed by Docherty (which was not available under the EPP regime). [21]

The Court concluded: ‘We have no doubt that he had the full range of options in mind, and that he gave the issues full consideration even if he did not spell them out explicitly.’ [21] and ‘The sentence of IPP was clearly suited to this case in a way that an old style extended sentence was not. [22]

The second (more interesting) ground

‘The abolition of IPP required the court to impose and EPP sentence (not IPP) as to not do so would offend ECHR article 7, 5 and 14 and the principle of lex mitior.’

The ECHR can be found here.

The Court divided the issues into two:

Article 5 and 14

It was agreed by the parties that the issue fell within the ambit of article 5 (the right to liberty and security-with listed exceptions) and so that if there has been discrimination towards the appellant on a ground encompassed by Article 14 (the prohibition on discrimination), that Article is breached in the absence of objective justification.

The basic argument was that there was no objective justification for the treatment received by Docherty since it was dictated by the date upon which he had been convicted in circumstances where a lesser penalty would have been imposed had he been convicted after 3 December 2012 (because IPP was not available), and thus prior to his date of sentencing on 20 December 2012.

Docherty claimed that the discrimination alleged did not fall into any of the listed catgeories, and so fell into the ‘other’ category.

The Court did not agree. The decision in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484 held that classification as a prisoner was insufficient to amount to “other status” for the purposes of Article 14. [29]

Interestingly the European Court of Human Rights came to the opposite conclusion in Clift v UK [Application 7205/07] however, relying on Kay & Others v Lambeth LBC [2006] 2 AC 465, it was clear that domestic courts  are bound by the House of Lords precedent. [30]

The Court also expressed doubts as to whether there had ‘been unjustifiable discriminatory behaviour. The mere fact of an anomaly arising from the introduction of LASPO would not of itself constitute unwarranted discrimination – see paragraph 33 of Clift (H of L).’ [31]

The Court commented that whether legislative change was effective from the date of the offence (CJA 2003), the date of sentence (CJIA 2008 amendments) or the date of conviction (LASPOA 2012), there would inevitably be different treatment. [32-33]

The conclusion in relation to Articles 5 and 14 was as follows:

Given Parliament’s legitimate desire to reform the legislation relating to dangerous offenders, we doubt in the circumstances whether asserted incongruities of the sort arising in this case properly fall within the ambit of Article 14 discrimination, but even accepting that they do, it is hard to see how, unless the appellant is successful on the Article 7 point, the State could fail to establish the necessary objective justification.

The same conclusion applies to the appellant’s further submission asserting a violation of Article 14 within the context of Article 7. [34-35]

Article 7

The complaint was that there was a failure to comply with Article 7 of the ECHR and the international principle of “lex mitior”.

Lex mitior – the Rome Statute of the International Criminal Court defines it as: ‘In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply.’ (Article 24(2))

Article 7(1) of the Convention reads as follows:

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than one that was applicable at the time the criminal offence was committed.”

The Court commented: Clearly, on its face there was in fact no breach, because the penalty of IPP was available at the time when the offences were committed. There is nothing in Article 7 which expresses the concept of “lex mitior”. [39]

Interestingly, Article 7 is in contrast with other international instruments:

International Convention on Civil and Political Rights (ICCPR) Article 15 states:

“(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If subsequent to the commission of an offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.” (emphasis added by the Court)

It was suggested that the modern law of the ECHR applies more widely than the express wording of Article 7, relying on  the decision of the Strasbourg court in Scoppola v Italy (No.2) [2010] 51 EHRR 12, the facts of which are as follows.

The applicant murdered his wife on 2 September 1999; the offence was punishable by life imprisonment. On 18 February 2000, he agreed to be tried under a summary procedure. It lacked some of the safeguards of a full trial but carried the advantage of reducing the available sentence to 30 years. That provision came into force in December 1999. On 24 November 2000 he was found guilty and sentenced. The court noted his liability to a life sentence, but imposed a 30 year term, honouring the terms of the summary procedure. On the same day a new legislative decree took effect. It amended the provision relating to summary procedure which reduced life to 30 years. It provided that in the event of trial under the summary procedure life imprisonment could be imposed in place of life with daytime isolation. On an appeal hearing in January 2002, the applicant was sentenced to life imprisonment pursuant to the amending legislation. Further domestic appeals by the applicant against his life sentence were dismissed.

The applicant’s Article 6 and 7 challenges were upheld and the 30 year term reinstated. [41-42]

In so deciding, the European Court decided to depart from its earlier decision in X v Germany [Application No 7900/77] that Article 7 did not guarantee the right to a more lenient penalty provided for in a law subsequent to the offence. [43]

The basis for that decision was in essence that ‘a consensus had gradually emerged in Europe and internationally around the view that application of a criminal law providing for a more lenient penalty, even one enacted after the commission of the offence, has become a fundamental principle of criminal law.’ Additionally, Italian law had recognised the principle since 1930. [para 106 of the Scoppola judgment]

Further, the absence of recognising lex mitior in Article 7 was not decisive when viewed in light of the developments in attitude to the principle. [para 107 of the Scoppola judgment]

Inflicting a heavier penalty for the sole reason that it was prescribed at the time of the commission of the offence would mean applying to the defendant’s detriment the rules governing the succession of criminal laws in time. In addition, it would amount to disregarding any legislative change favourable to the accused which might have come in before the conviction and continuing to impose penalties which the State – and the community it represents – now consider excessive. [para 108 of the Scoppola judgment]

The Grand Chamber felt it appropriate to depart from the decision in X v Germany and reinstated the 30-year term. [para 109 of the Scoppola judgment]

Counsel for Docherty sought to claim the benefit of this ruling and urged that, in consequence, the IPP having been abolished by the date of sentence for convictions recorded on or after 3 December 2012 and the new style extended sentence only being available for convictions on or after that date, the lesser sentence of an old style extended sentence should have been imposed. [45]

The Court of Appeal considered the Scoppola decision and the possible arguments for not applying it [46]

a)     The lesser sentence sought cannot be the one provided for by the new legislation (LASPO) since the new style extended sentence can only be imposed in post 3 December 2012 cases. What Mr Rule sought to obtain is the imposition of the old style extended sentence under the 2008 Act which was repealed by LASPO from 3 December 2012, as were the provisions relating to the sentence of IPP, and retaining both sentences as available to a court where a conviction had occurred before that date. Thus, while it is sought to consign the IPP to history in advance of the date provided for by Parliament, it is sought to retain the benefit of a closely-related provision which was repealed in the same way. To do so is not impossible, if Scoppola were applied, but there is an anomalous feel to it.

b)     There is a tension between the phrases “it would amount to disregarding any legislative change favourable to the accused which might have come in before the conviction” (paragraph 108), and “differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment is rendered” (paragraph 109). The latter phrase is repeated at paragraph 119. The difference between conviction and sentence was irrelevant in Scoppola: it is central in this case. The applicant’s conviction was recorded prior to the commencement date for the relevant provisions LASPO, and prior to the making of the relevant commencement order.

c)     The reference in paragraph 108 to “foreseeability of penalties” as an essential element of Article 7 is hard to follow in the present context. The available penalties for the appellant’s crimes were clear and certain at the date of his offence. Uncertainty is only a function of retrospectivity which is prohibited by Article 7. If anything the possibility of some later, more lenient legislation applying retrospectively introduces uncertainty instead of applying foreseeability of penalties.

d)     The decision in Scoppola was by a majority of 11 votes to 6 with a strong dissenting judgment in relation to Article 7. The Article 6 violation was clear and was found unanimously. The case could have been decided on that basis alone. The Article 7 decision required the setting aside of longstanding authority.

e)     In Scoppola, there had been in place since the 1930s a provision of the Italian Criminal Code which contained the lex mitior principle.

Did Scoppola have to be followed?

The Court said:

Noting that Scoppola is a decision of the Grand Chamber, we do not consider that it can be said that the judgment represents a misunderstanding or overlooking of a significant feature of English law or practice which would or could lead to a review by the European Court. Any argument that Scoppola does not represent a “clear and constant” line of authority will founder since the decision is one of the Grand Chamber. Thus the obligation is to follow the Scoppola interpretation, subject to its application to the particular facts of the case. [51]

In essence, yes it had to be followed unless the Court considered it did not apply to the facts of Docherty’s case.

Legislative changes and domestic law

The court commented:

As our domestic law currently stands, it is clear that the subsequent legislative changes in the criminal law are presumed not to have any retrospective effect (Section 16(1)(d) and (e) of the Interpretation Act 1978), and it is well established that legislation enacted after the conviction and sentence does not affect the correctness of anything done under the law as it stood and was properly applied at the time of trial: Bentley [2001] 1 Cr App R 21, at 24 by Lord Bingham CJ. Even a later interpretation of the common law that is favourable to a convicted person does not in itself confer a right to an extension of time for appealing to the Court of Appeal: see, for example, Hawkins [1997] 1 Cr App R 234. [48]

The LASPO regime

The effect of the LASPO changes (after 3 December 2012) was that the hierarchy of sentences available prior to LASPO had changed:

Formerly, Life, IPP and EPP were available. Post 3/12/12, the sentences available were now Life and EDS (the new extended sentence).

The gap left by the IPP repeal did not mean that defendants who formerly would have received IPP would automatically receive a life sentence, but it was accepted that the repeal would mean that more life sentences would be imposed. (See R v Burinskas and our blog in December 2012)

The question for the court was whether there was a real possibility of Docherty receiving a life sentence if he was sentenced after the LASPO changes were in force (3 December 2012 onwards). [57]

The Court said: a judge under the new sentencing regime could properly and reasonably consider a life sentence as a real possibility. [58]

The sentencing judge himself recognised this in his sentencing remarks. He did not consider that a life sentence was needed when an IPP was available to him. However he went on to comment that “the position may well change with the changes in the law”. [59]

Therefore (even if it were to be recognised in English law) lex mitior did not apply as there was a real possibility that Docherty would have received a life sentence (more severe than his EPP sentence) had he been sentenced under (what he considered the benefit of) the new LASPO regime.

The appeal was dismissed.

Peter Bunyan – successful appeal for sex on duty PCSO

We covered the case of Peter Bunyan, a PCSO who was sent to prison for seven years for having sex with various women whilst on duty, on 19th March 2013.

We stated that our view was that the sentence was too long (‘Mr Bunyan’s sentence seems appealable’). Well, on 9th November 2013 we were alerted through CrimeLine that Mr Bunyan had in fact appealed, and he was successful.

The Court of Appeal decision doesn’t lay down any great principle of law, but is worth reading to give the full facts, and we like to keep you uptodate with developments in the cases that we have looked at.

In the end, the Court concludes that the sentence was manifestly excessive and reduced it to 3 years – less even than we had suggested would have been appropriate.

This is a very large reduction – the Court of Appeal rarely make that much of a change, especially when it is a sentence passed by a Judge who has heard the trial. In this case, it has achieved the right result.

Ceri Shipman – Sentence reduced for Perverting the Course of Justice

Introduction

Courtesy of Crimeline, we were made aware of the sentencing appeal of Ceri Shipman ([2013] EWCA Crim 1698) where the Court of Appeal reduced her sentence of 30 months to 20 months for Perverting the Course of Justice. And, prompted by a little nudge from one of our readers, we decided to have a look.

Facts

Ms Shipman was in a relationship with Jason Savage, a very violent man. During the course of that relationship, Mr Savage was arrested and charged with very serious offences (including 3 offences of rape and three of s18 – causing really serious harm), some of which he admitted. Others he denied, but his denials weren’t believed by the jury.

As a consequence, he was sentenced to life imprisonment with a minimum term of 9 years – a very, very serious sentence. Prior to the sentence, Ms Shipman gave birth to their daughter.

Ms Shipman believed that there had been a miscarriage of justice – a belief described by the Court of Appeal as ‘absurd‘, pointing to, among other things the fact that Mr Savage had been violent towards her during their relationship (something that she was not able to accept until earlier this year).

After Ms Savage’s conviction, Ms Shipman set up Facebook and email accounts in the name of the main victims of Mr Savage. She then created a string of fabricated messages between herself and the two women. The gist of these were to suggest that the two woman had made up false allegations against Mr Savage.

After a period of time, Ms Shipman took them to the police in September 2010. The two women were arrested and interviewed, being kept in custody for 5-7 hours. It then took ‘some months’ before ‘elementary checks’ of their computers reveled the truth.

It then took 2½ years for Ms Shipman to be investigated and charged. The Court noted that they “have received no explanation from the prosecution as to why that was the case, notwithstanding the questions from the single judge. We assume, therefore, that there is no good explanation. It means that the appellant had this offence hanging over her for a very prolonged period, when she knew that she had no defence and that she would be going to prison.

Ms Shipman pleaded guilty at the earliest opportunity.

Appeal

The Court of appeal noted that Perverting was a very serious offence, that attracts a prison sentence unless there are wholly exceptional circumstances (and there were none here).

The fact that the two women exposed to the risk of a wrongful prosecution is an aggravating feature. More than that, the sentencing judge decided that Ms Shipman was intending that they be prosecuted to a conviction, another aggravating feature. Lastly by way of aggravation, the offences with which Mr Savage was convicted of were extremely serious.

On the other hand, the behaviour of Ms Shipman, whilst calculated, was “bound to lead nowhere“. She was a vulnerable young woman of good character who had accepted responsibility straight away. Mr Savage was the driving force behind the offending. The length of the delay, unexplained, was a further matter of mitigation.

In those circumstances, the Court of Appeal decided that the appropriate sentence was 30 months after a trial and therefore reduced the sentence to 20 months to reflect the credit for the plea of guilty.

Comment

Each case should be decided on its facts is a general rule, but all the more so in cases of Perverting the Course of Justice. It seems to me that the Court of Appeal were right to reduce the sentence in all the circumstances. 20 months is still a very long sentence and sends out a clear message that as a society we do not approve of the behaviour that Ms Shipman engaged in.

From a lawyers point of view, there are four further points of note :

(1) As was pointed out on criminalsolicitor.net, why did it take the police ‘some months’ (it seems it was four) to ascertain that Ms Shipman’s allegations were false? It seems that both victims said in their police interview that this was a fabrication. The fabrication was discovered by “elementary checks” on the computers, and given that both women who did not appear to be friends, were saying the same thing, could this have been done more quickly ?

(2) Similarly with Ms Shipman – this would not have been in any way a particularly complex investigation – certainly nothing requiring 2½. Why did it proceed in such a leisurely pace? We looked recently at the question of whether the police abuse bail. It is not clear when Ms Shipman was arrested, but shouldn’t this have come to Court far earlier?

(3) We haven’t looked in the blog at the issue of retention of DNA and fingerprinting, but the issues have been well canvassed in the press. Here, two women were attacked and raped. After that, they were then the victims of an attempt to ‘fit them up’. Neither had been in trouble before. Because they were arrested, their DNA and fingerprints are on the national database.

This is a good example of why a blanket policy of retention of an individual’s personal data is wrong. I hope that the police have apologised to them and, as a symbolic gesture, agree to wipe their DNA and fingerprints from the database.

(4) Whilst I agree that this was never going to lead to a successful prosecution of the two women, I don’t think we should be too glib about the chances of success. The fact that there were two people of good character targeted by the same method, and the very low sophistication, does not mean that in another case things would end so happily.

Particularly with the current approach of the police (less investigation than there used to be) and the CPS (minimalist disclosure and inadequate forensic reports), in a case where someone had been in trouble before and the evidence against them appeared to be strong (which, on the face of it, it was against the two victims in this case), there are plenty of occasions where a defendant would, wrongly, plead guilty.

This is more likely to happen if someone’s fingerprint or DNA were to be planted (pretty easy to do). Faced with such seemingly incontrovertible forensic evidence, many people who have been inside the system before would plead guilty rather than face a trial that, on the face of it, seemed hopeless. That is a sobering thought and this case is a salutary reminder to all of us that things aren’t always what they seem.

Sex Offenders & Bank Accounts – case comment on Prothero

Introduction and Issue

Christopher Prothero lost his battle at the High Court relating to the requirements of the Sex Offenders Register on 18th September 2013. Mr Prothero was released from prison in February 2012 after having served a 4½ sentence for sex offences. One of the requirements (that was added in 2012) is a requirement to disclose to the police details of any bank account and credit cards that the person holds.

Mr Prothero was unhappy with this and challenged this requirement as being unlawful under Art 8 European Convention on Human Rights (the right to a private life). His stated objection was the risk that his personal financial details would be unlawfully passed on. The application was resisted by the Government on the basis that if a sex offender went on the run, then knowing their bank account details was the best way of tracking them down.

The Court’s Ruling

It will come as no surprise that the Court dismissed the claim. In a short judgment, the Judges rehearsed the arguments and concluded that although there was (as everybody accepted) an interference with the individual’s private life, there was “little doubt but that the requirements are very valuable in achieving the legitimate aims and are both necessary and proportionate for the achievement of those aims“. For this reason, the application was dismissed.

Comment Although I am not surprised by the outcome, it seems to me that there is quite a lot of doubt that the requirements are ‘necessary and proportionate’ in achieving the aim of protecting the public.

There is nothing wrong with a judgment being short – it is to be welcomed when the Court sets out the issues and their conclusions concisely, as long as it covers everything. To my mind, it would have been better had there been more discussion as to whether a blanket requirement is compatible.

The concern I have is that there is no individual tailoring of the requirements of the register – no Judge looks at the individual and considers whether notifying bank details will offer any protection to the public.

This all relates to a wider concern I have, and that is whether the Register is a good thing or not. There is no evidence from the UK that it works to prevent crime and, (as mentioned in our post on the Register) some evidence to suggest that it is, in fact, counter-productive.

Before saying whether it is necessary and proportionate, I would want to know the following (as a minimum) – (1) how many people are subject to the register, (2) how many people go ‘missing’ from it, (3) how many of those have committed offences after, and (4) how many of these were tracked by their bank account details. I have strong doubts that the numbers would support the Government’s case on this point.

Further, if someone really does want to go to ground, then will this really help the police? The offender knows that they have disclosed these details and can be tracked via it, so will they just go and take out cash and disappear off? Or, it they are intending to hide from the police, will they just declare some accounts and leave one hidden (which they then use)? This may provide a false sense of security rather than any real protection.

These arguments may or may not be persuasive. But, it’s for the Government to show that the measures are proportionate and, on the face of the judgment, they didn’t produce enough evidence to persuade me.

More Miscarriages of Justice Compensation – Allen v UK

Background

We looked at the way that the Court of Appeal dealt with deciding whether victims of miscarriages of justice should be compensated in various cases (including Barr George) earlier in 2013.

It was widely reported on 12th July 2013 that Lorraine Allen lost her bid in the ECHR to be compensated after serving a three year sentence for the manslaughter of her son. She was convicted in September 2000 and sent to prison. Her conviction was quashed in 2005 (long after she had served her sentence) on the grounds that the medical knowledge relating to ‘shaken baby syndrome’ had moved on since then and there were alternative explanations for the injuries.

The Court of Appeal did not order a re-trial (which is not unusual in a case where someone has served their sentence in full).

 

Decision 

Ms Allen applied for compensation under the scheme in place at the time (again, fuller details in this post). This failed in the UK, in part because there was no ‘new fact’ – just a re-evaluation of the medical evidence. Further, Ms Allen could not establish her innocence.

She took her case to the ECHR arguing that to deny her compensation put the UK in breach of its obligations under Art 6(2) European Convention – “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law“. Ms Allen was not complaining that the refusal or compensation per se was a violation of the presumption of innocence, just that in her particular case the reasoning of the English Court of Appeal when they refused compensation was in such terms as to cast doubt in her innocence.  v

The ECHR stated the principles to be applied: “the presumption of innocence means that where there has been a criminal charge and criminal proceedings have ended in an acquittal, the person who was the subject of the criminal proceedings is innocent in the eyes of the law and must be treated in a manner consistent with that innocence.

What did that mean in Ms Allen’s case? The ECHR is a review Court – their job is to review the decision of the Court of Appeal (in this case) to see whether its decision is within the margins of what is permissible. Here, they concluded that the Court of Appeal stayed well within that margin and, therefore, that the appeal had to be dismissed.

 

Comment

It is important to note that the ECHR analysed the question by considering the Court of Appeal’s role when set against the statutory test, not whether the statutory test was unlawful of itself. What I mean by that is that the Court of Appeal has to go through the questions that are set out in  s133 Criminal Justice Act 1988 and give reasons for their conclusion.

The ECHR then looked at the answers they gave and the language they used, they did not look at whether the questions that they are told to ask are the right ones. It may be that they come back to that another day.

As noted in the previous post, this area gives rise to some pretty complicated issues. It seems to me, however, that when the state takes away someone’s liberty, and they do so wrongly, they should have to compensate the individual for that. There will be people who ‘get away with it’ as a consequence, but I would rather that there were unmeritorious cases of people getting compensation than people who are innocent, and have had their lives torn apart by the state, not being given any recompense for that.

 

 

Whole Life tariffs unlawful – Vinter v UK in the ECHR

Introduction

The newspapers gave extensive coverage to the ECHR’s decision in the case of Vinter v UK (see the Daily Mail for one few and the Guardian for a more measured response). We meant to look at this earlier, but life got in the way.

We gave the background here.

 

What did the Court decide?

The news reports were confused as to what had happened. The first point to note is that the European Court of Human Rights has less power than the Courts in the UK. They are not able to quash a conviction or allow an appeal against sentence, they can only look at whether a Convention right has been breached. If they find that that has happened, then the individual will have to go back to the UK Court to seek redress there (the ECHR does have a power to order compensation, although they did not in this case).

So, the argument for the ECHR was whether a ‘whole life’ tariff (it was often referred to as an ‘irreducible life sentence’) was a breach of Art 3 of the Convention (the prohibition against “torture or to inhuman or degrading treatment or punishment”).

The Court looked at the practice across Europe as well as various International instruments and concluded that the overwhelming practice was not to impose sentences where there is no chance of release (paras 59-81). The UK accepted (para 83) that any sentence that was ‘grossly disproportionate’ would be ill-treatment that was incompatible with Art 3 and therefore unlawful.

The Court concluded that a ‘whole life’ tariff, where there was no effective review mechanism, fell into that category (paras 119-122) and was therefore unlawful.

Although that seems the case with a UK ‘whole life sentence’ (actually not the UK, as Scottish law does not allow for whole life tariffs), the Government argued that s30 Crime (Sentences) Act 1997 meant that even a whole life sentence did not have to mean that an individual spent the remainder of their life in the prison because it allows the Secretary of of State to, “at any time release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds.”

Whilst the English Court of Appeal bought that argument, the ECHR did not, pointing to the fact that the police that was in place states that “release will only be ordered in certain exhaustively listed … circumstances, namely if a prisoner is terminally ill or physically incapacitated and other additional criteria can be met (namely that the risk of re-offending is minimal, further imprisonment would reduce the prisoner’s life expectancy, there are adequate arrangements for the prisoner’s care and treatment outside prison, and early release will bring some significant benefit to the prisoner or his or her family”.

This was considered to be too restrictive. For that reason, a sentence of life imprisonment with a whole life tariff is a breach of Art 3 and therefore unlawful.

The ECHR noted that since whole life tariffs were introduced in England and Wales in 1983, it was always the case that the sentence would be reviewed after the prisoner had served 25 years to see if the whole life tariff was still justified, bearing in mind all the circumstances of the individual case. This was removed by the Criminal Justice Act 2003 for political reasons.

The ECHR stated that there must be a review mechanism and, whilst they did not proscribe the time frame (or the mechanism) for this, “the Court would also observe that the comparative and international law materials before it show clear support for the institution of a dedicated mechanism guaranteeing a review no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter”.

It seems clear that if the UK were to respond with a review longer than 25 years then they will be back in Court again and will, eventually, lose that fight.

 

What happens now?

This emphatically does not mean that any of those prisoners will be released. The UK has an obligation to do something to ensure that our law is compatible with Art 3.

There are various options. The ‘lightest touch’ would be to issue revised policy guidance under s30 Crime (Sentences) Act 1997 that allows an application to (presumably) the Home Secretary for a review of the sentence. This would be undertaken and, if the whole life tariff remains, then can be Judicially Reviewed. An option on the other end of the spectrum would be to repeal s4(1) Sch 21 Criminal Justice Act 2003 that permits a whole life tariff to be imposed. That may well be the cleanest and most sensible option (not least that it will save money in future litigation) but is likely to be politically unacceptable, especially given the initial responses from the Government.

Whatever happens, it is important to stress the practical impact of this judgment – almost none. There are about 50 people serving whole life tariffs and the result of any review for them is likely to be that a whole life tariff is still appropriate. Even where it is concluded that a whole life tariff is no longer necessary, it means that a fixed term tariff will be set, which is longer than 25 years. In any event, however long the tariff will be, this is still a minimum term and someone cannot be released until the Parole Board says it is safe to release them.

So, the conclusion is – don’t believe the hype. This will make almost no difference to anyone.

 

Does this apply to people serving a fixed term tariff over 25 years?

To my mind, the answer is no. The judgment only applies to whole life tariffs and not to people who are serving determinate tariffs longer than 25 years. From this, it could be noted that the ECHR may well be (at this stage at least) relatively sanguine over tariffs of 30 or 40 years.

This does give another possibility – that Parliament could set a maximum tariff of say 50 years which would (or at least they would argue would) comply with the letter of the ruling whilst being an effective whole life sentence. This was the route taken by Terry Branstad (the Governor of Iowa) who reacted to the US Supreme Court ruling in Miller v Alabama that outlawed mandatory life without parole for juveniles in America. He commuted all the life sentences to 60 years (without parole), a fine example of how to undermine a Court judgment.

The reaction to the judgment in the UK provides a good example of how politicians and commentators (either through ignorance or malice) twist the truth to plug their own world view. By way of an example, one MP, Martin Vickers, was apparently taking to the airways stating that this may mean that Ian Huntley will be released early. This is completely wrong, partly because the judgment does not say anything of the sort about anyone being released, but also because Mr Huntley is not serving a whole life tariff.

 

Comment

In the piece last year I suggested that whole life tariffs were in breach of Art 3 and would be ruled so, so this is not a surprise to me. While the judgement has been very controversial, it seems to me to be plainly correct.

As to where the government will go, I think that it is likely that they will go down the policy route to retain as much control over the process as possible. This will tide them over for a while, but I would stake a lot of money on the fact that that will end up back in the ECHR who will eventually require a more transparent and judicial process.

Court of Appeal expect more discretionary life sentences in wake of LASPO

 

In conjoined appeals, the Court of Appeal considered the imposition of what is commonly known as a discretionary life sentence.

The appeals were heard together as they raised similar issues in relation to the correct approach to the issue of dangerousness in the wake of the changes to the Criminal Justice Act 2003 effected by LASPO.

 Life imprisonment

The court set out the circumstances in which a sentence of life imprisonment could be imposed:

1. Following a conviction for murder.

 The provisions are unchanged. The sentence is mandatory.

 2. Following a conviction for a second ‘listed’ offence.

Under CJA 2003 s 224A – the court must impose such a sentence unless the circumstances make it unjust to do so – the court described this as a statutory life sentence. This was the sentence described as ‘automatic life’ and ‘two strikes life’ by the press and the MoJ.

3. Following a conviction for a ‘specified’ offence.

Under CJA 2003 s 225 – the court must impose such a sentence where the conditions in s 225(1) and (2) are met (essentially that the defendant poses a significant risk of serious harm to the public, and that the seriousness of the offence justifies such a sentence).

This is the sentence known colloquially as ‘discretionary life’. The court took issue with that description in that the sentence is mandatory where the conditions are made out. The court said that in a broad sense, this was also a statutory life sentence.

4. Following a conviction for a sentence which carries life imprisonment but which is not a specified offence under section 225

 Of this situation, the court said this:

“The jurisdiction to impose a life sentence in an appropriate case has survived the enactment of the 2003 Act and the changes to the sentencing regime affected by LASPO. If it had been intended to abolish it, the appropriate legislative change could readily have been made by provisions restricting the life sentence (other than the mandatory sentence) to the statutory sentence or the discretionary sentence under s.225(1) and (2). As it is, neither the 2003 Act, nor LASPO, imposed any limit on the power of the court to impose a sentence of life imprisonment in such cases. Some of these offences may involve a significant risk of serious harm to the public, but are not included within the list of “specified” offences in the dangerousness provisions in the 2003 Act. One obvious example is the offender who commits repeated offences of very serious drug supplying which justifies the imposition of the life sentence. In circumstances like these the court is not obliged to impose the sentence in accordance with s.225(2), but its discretion to do so is unaffected.”

Why is this an issue?

Well as you will recall, the much criticised IPP sentence was repealed in December 2012.

Prior to the repeal, custodial sentences for serious offences were as follows:

  • Life (mandatory) – murder only
  • Life (discretionary) – limited offences such as s18 wounding and rape
  • IPP – a wide range of sentences including s20 GBH
  • Extended Sentence – a wide range of sentences including ABH
  • Determinate sentence – all serious offences

An IPP sentence was essentially a life sentence; a minimum term was set and the prisoner would be released only when the parole board was satisfied that he no longer posed a risk to the public. The test for imposing a an IPP sentence was essentially the same as ‘discretionary life’, but it was considered to be a less serious sentence in that the minimum terms were generally shorter, and they were imposed for crimes which did not carry life as a maximum sentence.

When LASPO changed the law, the hierarchy became as follows:

  • Life (mandatory) – murder only
  • Life (discretionary)
  • Life (automatic/two strike)
  • EDS (Extended Determinate Sentence) – this comprised of a determinate custodial sentence, and a licence extended beyond the normal term mandated by the length of the custodial sentence.
  • Determinate sentence

The new statutory life sentence, nor the new EDS sentence did not replace IPP. The court said:

“Many offenders who represent a danger to the public may not “qualify” for the statutory life sentence. Yet, for some offenders, the imperative of public protection continues undiminished, and is not wholly met by the “new” extended sentence. Very long term public protection must therefore be provided by the imposition of a discretionary life sentence.

[Due to the nature of an EDS sentence, which is not indefinite] in relation to the offender who will continue to represent a significant risk to the safety of the public for an indefinite period, the new extended sentence cannot be treated as a direct replacement for the old IPP.”

The court’s conclusion

“Accordingly, in cases in which, prior to the enactment of LASPO, the court would have been driven to the conclusion that an IPP was required for public protection … the discretionary life sentence will arise for consideration, and where appropriate, if the necessary level of public protection cannot be achieved by the new extended sentence, ordered.”

Essentially, the court was stating that in the absence of a power to impose IPP, a discreitonary life sentence will be imposed as the new EDS sentence will not provide the required level of protection for the public – there will be more discretionary life sentences.

Comment

This is no surprise.

In fact, three days after the repeal of the IPP sentence in December 2012, we published this post which raised exactly this question – in slightly less than neutral language – have the MoJ and Parliament inadvertently caused an increase in the number of life sentences?

Repealing IPP – the intermediary between an extended sentence and a life sentence – created a lacuna into which some (but not many) defendants will fall.

If an EDS (new extended sentence) will not suffice ie it will not provide sufficient protection for the public, then the only alternative is a discretionary life sentence.

Do we really want to be condemning increasing numbers to the heafty penalty of a life sentence? Do we need to? Should increasing amounts be spent on the ancillary costs associated by a life sentence (parole board, life licence etc.)?

More poor policy decisions from the MoJ, and the tax payer and defendants pay the price.