Tag Archives: life sentence

David Mitchell – another whole life tariff for murder of Robert Hind?

Photo from the BBC

Photo from the BBC

Introduction

In 1991 David Mitchell received a life sentence for murdering his girlfriend. He had progressed through the prison system and was in an open prison in 2012 when he went AWOL. He was at large for less than 24 hours before being recaptured.

It’s not entirely clear when he was re-released, but in December 2013 he was in the community (whether on day release or otherwise) when he killed Robert Hind, a convicted sex offender.

On 9th June 2014 Mr Mitchell pleaded guilty to murder. Sentencing has been adjourned. Details are sketchy as to Mr Mitchell’s motives and exactly how the murder occurred, but we do know that Mr Hind ‘had died of head injuries and strangulation‘ and his remains were found in a river a few days after he had been killed.

 

What sentence will Mr Mitchell get?

Well, the mandatory sentence for murder is the life sentence. The key question is what tariff will Mr Mitchell get. Looking at the different starting points, because Mr Mitchell has a previous conviction for murder, the starting point is a whole life tariff.

The Judge will not be bound to pass a whole life tariff, but that will be the starting point. We don’t know why the sentence was adjourned – it could be to get psychiatric or other reports to see whether a whole life tariff is needed.

We will have a look when he is sentenced, but Mr Mitchell is now 46. If he doesn’t get a whole life tariff, he will get a tariff of around 40 years we would imagine. Either way, he won’t be going anywhere soon, and we imagine that he would only be released at the end of his life if he is terminally ill.

 

Does this show that people who get a life sentence shouldn’t be released?

No. You can’t extrapolate from one case to a general penal policy.

Skullcracker gets another life sentence for another robbery

From the BBC News website

From the BBC News website

Michael Wheatley – the Skullcracker – pleaded guilty to robbery, possession of a firearm and being unlawfully at large on 7 May.

On 29 May, he was sentenced to life imprisonment with a minimum period of 10 years.

Wheatley was in prison for numerous armed robberies. He was on day release and failed to return. Predictably, he went and robbed a bank (£18,000) and was subsequently caught in east London.

Previous

As has been widely publicised, he had extensive previous. He had 23 previous convictions for robbery, two for attempted robbery and 18 for related firearms offences.

In 2002, he was given 13 life sentences for bank robberies.

Escape

He was serving a life sentence at an open prison when he failed to return from day release.

The BBC reported that ‘He had gone on the run twice in the past and each time staged a series of violent robberies before being caught and re-jailed.’

Sentence

So a straightforward life sentence? Er, not quite.

Wheatley was sentenced for the robbery and the related firearm counts. There are four types of life sentence in England and Wales:

1)      Mandatory life (murder cases only)

2)      Discretionary life (where the offender is ‘dangerous’)

3)      Discretionary life (where the offender is not ‘dangerous’)

4)      Automatic life (where the offender has particular previous convictions)

So which applies here?

Considering his previous convictions, it is undoubted that Wheatley is ‘dangerous’ within the meaning of the Criminal Justice Act 2003 which provides the power to imprison someone for life.

But also, due to his previous convictions, automatic life (also known as ‘two strikes life’) also applies. Here’s why:

a)      At the time of the new offence, Wheatley has a previous conviction (more than one actually) for armed robbery – this is a requirement under CJA 2003 Sch 15B

b)      The sentence(s) received a custodial term of either 10 years + or a life sentence

c)      He now, after 3 December 2012 (because that is when the automatic life sentence was available from) has another conviction for a CJA 2003 Sch 15B offence – armed robbery

d)     The sentence for the new offence is worth 10 years + or life

We don’t have a transcript so it may be that the Judge got it bang on. But what should have happened? The Judge should have considered dangerousness and recorded that Wheatley was dangerous and therefore was receiving a life sentence under those provisions. He should then have considered automatic life and recorded that Wheatley was also subject to those provisions.

Anything else?

The Judge should probably have made an order for Wheatley to pay £120 victim surcharge, although due to sloppy legistlative drafting this is not entirely clear.

A point of note

The way in which the automatic life sentence works means that in very rare cases, someone could receive a life sentence for an offence which does not carry life as its maximum. Here’s why:

The list of offences in Sch 15B contains offences which do not carry life as a maximum – making etc. indecent images of children (10 years) for example. If a person had a conviction for rape (max sentence life) and received 12 years, and then subsequently was convicted of the indecent images offence, and would (but for the automatic life provisions) receive the maximum 10 year sentence, automatic life would apply and they would be  in line for a life sentence, even though the new offence a) wasn’t ‘worth’ a life sentence and b) the maximum sentence for the new offence wasn’t life imprisonment.

Funny huh?

So why doesn’t life mean life?

We had a look at this issue previously, here. In essence, the ‘life’ in life sentence refers not to the imprisonment, but the sentence as a whole, being made up of a custodial term, and the life licence which the offender is subject to upon his or her release.

 

More trouble for the UK? Whole life tariffs in the ECHR again – Magyar v Hungary

Photo from Channel 4

Photo from Channel 4

Introduction

Back in February we had a look at the case of McLoughlin as the Court of Appeal turned to the question of whether whole life tariffs are lawful and it was concluded that they were. In it, we opined that it was not the end of the argument, but just (yet) another step along the way.

Well, on 20th May 2014 the ECHR had another look at the issue in the case of Laszlo Magyar v Hungary [2014] ECHR 491.

 

Judgment

Mr Magyar was convicted of three murders committed during the course of numerous burglaries of elderly people – the sort of case that might well attract a whole life tariff her. For this he received a life sentence where eligibility for parole was excluded.

The only possibility for release was by a Presidential Pardon. The Court re-iterated their conclusions in Vinter v UK saying (para 50) –

in determining whether a life sentence in a given case can be regarded as irreducible, the Court has sought, for the reasons outlined in Vinter (cited above, §§ 110-118), to ascertain whether a life prisoner can be said to have any prospect of release. Where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3 (see Kafkaris, cited above, § 98). Article 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds (see Vinter, cited above, § 119).

Further (para 53) in terms of when the breach arises “A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration“.

The Court held that as the Presidential Pardon did not require consideration of whether the “continued imprisonment is justified on legitimate penological grounds. Although the authorities have a general duty to collect information about the prisoner and enclose it with the pardon request (see section 597(5) of the Code of Criminal Procedure, cited in paragraph 21 above), the law does not provide for any specific guidance as to what kind of criteria or conditions are to be taken into account in the gathering and organisation of such personal particulars and in the assessment of the request“.

Because the law did not “allow any prisoner to know what he or she must do to be considered for release and under what conditions.” there was a breach of Art 3.

 

Comment

The Court confirms what they said in Vinter. There is no consideration (unsurprisingly) of McGloughlin. The difficulties thrown up by the ECHR was resolved in a carefully worded compromise by the Court of Appeal relying on s30 Crime (Sentences) Act 1997.

We know that Mr Newell applied for permission to appeal to the Supreme Court, this being refused in April. It is anticipated that he will shortly be putting an application in to the ECHR.

What will Strasbourg make of it? Whilst of course s30 is different to a Presidential Pardon, we would suggest that the fundamental problem with s30 is (as stated previously) it does not give sufficient clarity or certainty. To say that this provides a sufficient safeguard because somebody can be released if the continued detention is a breach of Art 3 is to beg the question.

What does a prisoner, sentenced today to a whole life tariff, have to do to get considered for release in due course? The answer is ‘we don’t know‘. For this reason, it seems pretty clear to me that the UK’s system of sentencing with respect to whole life tariffs is contrary to Art 3.

The Lifer Manual has not been rewritten and, contrary to what the Court of Appeal think (para 31), it is highly doubtful that ‘exceptional circumstances’ is sufficiently clear. It may be that there could be sufficient clarity so as to make it compatible, but I imagine that even if this happens there will still be problems ahead that it is a decision of the Executive not an independent Judiciary.

 

What happens now? Further Comment 

If (or when) the Courts in England and Wales come to reconsider this, I imagine that they will try to uphold the current position based on the difference (that undoubtedly exist) between s30 and a Presidential Pardon. It may be that greater clarity will be given to the Life Manual.

Will this work? I suspect that the answer will be, in the long run, no – the answer to the Court of Appeal’s conclusion in McLoughlin will be ‘close but no cigar’. They have staved off the ECHR, but this is a temporary reprieve rather than a permanent victory for the UK.

Of course, the UK could save us all a lot of money and time by allowing for a judicial review after 25 years or anyone with a longer tariff.  The refusal to do this smacks of childishness on the part of the Government.

Why doesn’t a life sentence mean life anymore?

gallows

 

Introduction

One of the difficult things when you’re talking about crime and the criminal justice system is that most people don’t let the facts get in the way of their opinions. This isn’t just the MoJ when it comes to the question of what lawyers get paid – there is a huge amount of wrong information about that, and none more so than sentencing.

Murder is always an emotive topic that arouses strong feelings. That doesn’t relieve us of the obligation to actually use facts when discussing it however. If I had a pound for every time that someone said something along the lines of “we’re too soft nowadays, life was supposed to mean life, not 15 years” then, well I’d still be writing this, but I’d be doing it whilst reclining on a hammock in the sunshine sipping a cocktail rather than a cup of tepid tea.

It’s not just tabloids that do this. Thanks to Jonathan Bild who gave a slight steer on this, we have looked at Hansard for when the provisions of Sch 21 Criminal Justice Act 2003 (that guides the current sentencing practice for murder) and note that David Blunkett said “When the death penalty was abolished—I am wholly in favour of that—it was presumed that those who committed such an act against their fellow human beings would go down for the rest of their lives“. Mr Blunkett is not just another politician, he was Home Secretary at the time and the 2003 Bill was ‘his’ one. And a politician is not going to lie or make a mistake about such an important matter is he?

Did life mean life?

So, is Mr Blunkett right? Have we all been sold a pup here? Have pesky human right laws, quite probably of foreign origin, conspired with the permissive society to mean we have gone soft on crime?

No. In a word. ‘Far from it’ in three. When the death sentence was abolished in 1965 it was envisaged that those that were convicted of murder would generally receive a life sentence with a tariff of around 10-12 years. Since then sentencing in general, and for murder in particular, has gone up and up (whilst the tabloids constantly claim, untruthfully, that we sentence more and more leniently). 

At that time most people convicted of murder would spend 8 or 9 years before being released – Sir Oliver Crosthwaite-Eyre, a Tory MP, noted in the debate about the death penalty in 1956, “a life sentence, which, on the average, now means a sentence of only nine years’ imprisonment” and this continued in the 10 years after (if anything the trend was downward).

That’s not the complete picture of course as this only relates to people that weren’t executed. About half of those convicted of murder were sent to the gallows (a surprisingly low amount to my mind). Of those that weren’t, these would be skewed towards those who were convicted of less serious murders that would attract a lower tariff (for example, under 18s weren’t liable for the death penalty).

But when Parliamentarians were considering the abolition of capital punishment in 1965 whilst there were some who called for whole life tariffs, these were in the minority. MPs were under no illusions that in most cases a murderer would be released after 10 or so years.

From the horse’s mouth

Don’t believe me? There’s not much you can do better than read the debates on what became the Murder (Abolition of Death Penalty) Act 1965.

It is clear that it was felt that sentences of longer than 10 years were felt by many to be wrong in principle and counter-productive. This is Sir Frank Soskice (the Home Secretary at the time of abolition and therefore someone very familiar with the procedure) on the topic : “nine years, experience shows, is round about the time when one may begin to get symptoms to show that the person in prison is beginning to break down. Therefore, in practice a number of persons have been released after nine years in prison.” As a laugh, try imagine Theresa May standing up at the Dispatch Box and saying this. 

It was confirmed in the debate that in 1964, apart from people in Broadmoor, there were six people in the prison system who had been detained for longer than ten years. Six. That is an astonishingly low number. Even if it is wrong by a factor of many hundred percent, then it is a world away from where we are now.

Sir Frank recognised that some people (who would nowadays get a tariff of over 30) may need to remain in prison for much longer than that “I should regard it as essential …  in the case of [those] who serve long periods of imprisonment—to do everything I could to give [them] the kind of human contacts, the variety and interest in life, the comfort, the general possibility of activity and of developing his own personality, and so on, which would make it possible for him to stand up to a long period of imprisonment without deterioration” – not words that would ever have passed David Blunkett’s lips.

He did recognise that these cases would be rare, and for most murderers they”must be punished, obviously, but when I receive reports that he is a person who has accommodated himself well to prison life and that a time has arrived to consider his release, whether it is after nine years of imprisonment, eight and a half, eight or ten years, depending upon the circumstances of the case, I would find it very difficult, in the exercise of my discretion, not to say that he should be released on licence“.

Comment

So. Don’t believe the hype. It’s nearly 50 years since the death penalty was abolished and in that period of time the mean tariff for murder has now gone above 20 years and is rising. This is not just the case with murder, but with all sentences. I’m not writing this to comment on whether that’s a good thing (though you can probably guess my views), but merely to point out that we should try to not make up facts when debating this. 

How times have changed

I’ll finish this off with two quotes from Hansard, one from a Conservative Home Secretary and one from a Conservative Attorney-General.

This is from Sir John Hobson (a former Solicitor General and then AG) – “The view that every murderer ought to be sentenced to life automatically proceeds from the fallacious parrot-cry which we are constantly hearing—that murder is a unique crime. I do not believe that it is. Many murders are unique crimes, but quite a few are not. After all, the difference between some murders and attempted murders is only that the former succeeded. What the accused did is precisely and exactly the same in each case, and yet on conviction for attempted murder the judge has to determine whether he ought to sentence the accused to life imprisonment, or whether it is safe to give him a determinate sentence and allow him out in a shorter time.

I haven’t seen a better argument, or one put as simply, against the mandatory life sentence for murder as that one.

Next up, Henry Brook, the Home Secretary in the Tory government the year before :

Here we come up against the fact that our prison arrangements are generally geared to maximum terms of 9, 10 or 11 years. A 14-year sentence imposed by the court may be reduced, with full one-third remission, to 9⅓ years. It is believed, and I have no reason to doubt it, that few people have enough resolution to endure more than ten years’ confinement in normal prison conditions. The longer a man is kept in after that the less fit may he be ever to be released.

Unless we are to contemplate keeping some people in for the rest of their natural lives—we may have to do so, but it is a most terrible thing to contemplate in the case of a young man sentenced, perhaps, in his twenties—we must bear in mind that there comes a time beyond which most people will become less and less fit for return to the free world. Such a man may lose all his self-reliance and all the strength of will which will be needed for supporting himself as a free man in the free world outside.” 

Now, he may have been happier than most MPs at lengthy sentences, but can you imagine Dominic Grieve (one of the most liberal Tories) or Theresa May (no comment) saying anything as liberal or as compassionate, as the above?

 

Life Sentences II (discretionary)

There are various other offences for which a life sentence can be passed. These tend to be the more serious offences – manslaughter, wounding with the intention of causing really serious harm, rape, robbery etc.

A life sentence would only be passed for an offence if the criteria for dangerousness and an IPP is met and the Court is of the view that because of the nature of the offence or offences, a sentence of life imprisonment should be imposed.

In practice, given the availability of IPP, discretionary life sentences should be imposed only rarely (Kehoe [2008] EWCA Crim 819) and only where the offence is ‘particularly high’ or the culpability of the offender is ‘particularly grave’.

Life Sentences I (mandatory)

Murder

For someone convicted of murder this is the only sentence that can be passed. It doesn’t matter what the person did, or what part they played in the murder (this will be reflected in the tariff).

The Judge has to set a ‘tariff’ – a minimum period of time that you have to serve before the Parole Board can consider you for release. Whilst some people get out ‘on tariff’ (at the date upon which their tariff expires) this is very, very rare and in practice most people serve a lot longer than that before they are released.

In working out the tariff, there are four ‘starting points’ depending on the type of murder (these are set out in Sch 21). The Judge is not bound by these, and even if a case falls within one of the categories, then the Judge can still set any tariff he wishes. The starting points apply to offenders aged 18 or over at the time of the offence (with the exception of whole life, which can only be imposed where the offender was aged 21 or over at the time of the offence). For those under 18 at the time of the offence, the starting point will be 12 years.

Whole Life’ – this is an order where no tariff is set – due to the nature of the offence, or the person convicted, the Judge directs that they can never be released. This is very rare (there are only about 55 people serving this currently). Cases that ‘normally fall into this category’ (as the Act describes them) are:

  • the murder of a child if involving the abduction of the child or sexual or sadistic motivation,
  • a murder done for the purpose of advancing a political, religious, racial or ideological cause, or
  • a murder by an offender previously convicted of murder.

The murder of two or more persons, where each murder involves any of the following—

  • a substantial degree of premeditation or planning,
  • the abduction of the victim, or
  • sexual or sadistic conduct,

30 years’ – murders in the following categories:

  • the murder of a police officer or prison officer in the course of his duty,
  • a murder involving the use of a firearm or explosive,
  • a murder done for gain (such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death),
  • a murder intended to obstruct or interfere with the course of justice,
  • a murder involving sexual or sadistic conduct,
  • the murder of two or more persons,
  • a murder that is racially or religiously aggravated or aggravated by sexual orientation, or
  • a murder that would have a whole life tariff, but where the murderer was aged under 21 when he committed the offence.

25 years’ – if the murder was committed by a knife or other weapon that was taken to the murder site intending to commit ANY offence (not just the murder) or to have it available as a weapon.

‘15 years’ – all other cases.

Unusually, the law also sets out further factors that aggravate or mitigate the offence:

Aggravating factors

Aggravating factors include—

(a) a significant degree of planning or premeditation,

(b) the fact that the victim was particularly vulnerable because of age or disability,

(c) mental or physical suffering inflicted on the victim before death,

(d) the abuse of a position of trust,

(e) the use of duress or threats against another person to facilitate the commission of the offence,

(f) the fact that the victim was providing a public service or performing a public duty, and

(g) concealment, destruction or dismemberment of the body.

Mitigating factors

Mitigating factors include—

(a) an intention to cause serious bodily harm rather than to kill,

(b) lack of premeditation,

(c) the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957 (c. 11)), lowered his degree of culpability,

(d) the fact that the offender was provoked (for example, by prolonged stress),

(e) the fact that the offender acted to any extent in self-defence (or in fear of violence),

(f) a belief by the offender that the murder was an act of mercy, and

(g) the age of the offender

Guidance

Guidance on how a Judge should approach the sentencing task is given in the case of Jones [2005] EWCA Crim 3115.

If someone is convicted of Attempted Murder, or Conspiracy to Murder, then, whilst a Judge can impose a life sentence, they don’t have to.