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“.
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?