Tag Archives: murder

Adebowale receives permission to appeal against 45-year minimum term

rigby

From the Guardian

Michael Adebowale, one of two men convicted for the brutal murder of Lee Rigby in Woolwich in 2013, has been given permission to appeal against his sentence. In January 2014, he was sentenced to mandatory life imprisonment with a minimum term of 45 years. Our write-up of the sentencing hearing can be viewed here.

It is expected that he will appeal against the length of the minimum term only, as the life sentence is mandatory.

What’s the process? 

After being sentenced, a defendant has 28 days in which to lodge grounds of appeal against sentence. Once that period has expired, a defendant wanting to appeal would have to apply ‘out of time’ and provide reasons why the application is late.

Once grounds have been submitted, the case papers are prepared by the Criminal Appeal Office and placed before ‘the single judge’ – a high court judge who sits on his or her own (hence ‘single’) and reviews the case on the papers only.

The single judge then grants or refuses leave to appeal. Granting leave means a full oral hearing will follow.  Refusing leave gives the defendant one of two options: a) leave it there – the single judge has indicated that the grounds aren’t arguable, or b) renew the application for leave. This second option means that the defendant effectively ‘forces’ an oral hearing and applies once again for leave (permission to appeal) before the full court (in sentence cases this is either two or three judges).

In a renewed application, the court will consider the application for leave, and where they decide it ought to be granted, they can (but don’t have to) deal with the appeal there and then. If they refuse leave, they can make a direction for a loss of time which means any time spent in custody between applying for leave and the hearing does  not count against the sentence. In effect, it adds on some time to the sentence that has to be served.

Adebowale

Adebowale has received leave and so a full hearing will follow. As what ever the result, he will spend a very long time in prison, it is likely to take a good few months before it comes before the court. We will of course cover it when it does.

“Punch 4 Punch” – a game with tragic consequences

For those unfamiliar with the game “Punch 4 Punch”, as we at UK Criminal Law Blog were, we are reliably informed that the game involves players being filmed with one hand tied behind their backs, punching one another.  A seemingly odd form of amusement, the game involves two individuals taking turns to hit one another.  The “loser”, or the player who gives up first, then forced to take a forfeit, usually in the form of an alcoholic beverage.

This rather bizarre game can have tragic consequences, as one family from Bexley have sadly found out.  Tommy Main, a 23 year old father of one, was playing the game with a friend when he was rushed to hospital having collapsed after being punched in the chest.  He later died in hospital.  A 20 year-old man has been arrested on suspicion of murder and bailed until September for the police to commence investigations.

 

Tommy Main, photo: Evening Standard

Egg-Shell Skull

Whether the game caused Mr Main’s death is yet to be established.  However, it brings to mind the “egg-shell skull” rule.  Essentially, this rule states that those who commit offences must “take their victim as they find them”.  By way of explanation; if set out to steal a handbag, but in doing so you cause your victim to fall the ground, crack their head open and later die, you may be held criminally responsible for their death.  Although you may not have intended to kill, therefore may not be guilty of murder, you may be guilty of manslaughter, as death was the result, albeit an unexpected and unintended one.

Joint Enterprise

Joint enterprise is a legal doctrine enabling the CPS to charge a group of individuals with one offence, if they were allegedly acting together, regardless of what role they played.  For example, the man who sets out to steal the handbag, may ask someone to drive him to and from the scene of the crime, and therefore that driver can also be charged with theft/robbery/manslaughter/murder, in the same manner that the handbag thief is.  In Tommy Main’s case we would speculate that there may well be others involved, who may well face charges under this doctrine.

Sentencing?

If the 20 year-old man referred to above is charged with murder, what sentence might he expect to receive?  The sentencing guidelines for murder are explained here.  If a manslaughter charge is laid, he would be subject to different sentencing considerations and of course the judge would not have to impose a life sentence.  Until the case is investigated thoroughly it is simply too early to say what the outcome will be.  But this post will be updated as and when there are any developments.

Susan and Christopher Edwards – life for murder

BBC

BBC

Introduction

We looked at the case of Susan and Christopher Edwards who were convicted of the murder of Ms Edwards mother and father (Patricia and William Wycherley) on Friday. A life sentence was guaranteed – we predicted a tariff of 22-25 years how did we do?

Well. The actual tariff was set at 25 years when sentence was passed on 23rd June 2014.

 

Factual Background

The murders date from 1998 when (probably) Mr Edwards killed Ms Edwards’ parents at her instigation. They buried the bodies in the back garden and then started on a sophisticated series of frauds.

This was started by taking £40,000 out of the Wycherley’s bank accounts the day after the murders. Since that date the Edwards pretended that the Wycherleys were alive and well and living in (variously) Ireland, Blackpool and Morecambe in order to collect a further £245,000.

Most of this money seems to have gone on, bizarrely, celebrity memorabilia. They gave themselves up last year after having run out of money. At that point, they stated that the bodies were in the back garden, which were duly found.

 

Sentence

We have the sentencing remarks which, as always, repay reading. We have to say that the single thing that would help the public understanding of the criminal justice system is more publication of what happens in Court.

Anyway, the Judge sets out clearly what the starting point was – in this 14 years because of the time that they were committed. She states that it was a planned and premeditated murder, done for gain and carried out with a firearm (although the latter was not of such concern in 1998). The Judge accepted that the animosity from Ms Edwards to her father stemmed from the fact that he had sexually abused her, however it could not be said that that was the cause of the murder.

The tariff was increased by 11 years to 25 years to reflect all the aggravating features.

 

Comment

As we said last week, the starting point now would be over 30 years. Given that this offence pre-dates the huge increases in sentencing introduced by the Criminal Justice Act 2003, a much reduced term would be expected.

The tariff set  was at the top end of what we had suggested. Reading the sentencing remarks, it is a very strange and sad case, and presents a somewhat more mitigation than seemed at first sight. For that reason, we would have thought that a tariff of 20 years would have been more than sufficient.

For the reasons previously stated, we would have thought that whilst there will be an appeal, we would not expect it to be successful.

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.

Mohammud Yusuf – 25-year minimum term for sexual murder

20140603-100259-36179643.jpg

Mohammud Yusuf was today sentenced for murder.

Facts

On 18th October 2013 police were called to an address in Neasden after a carer had reported that one of the women she looked after had been attacked. Amoe Stevens was taken to hospital but died shortly afterwards of her injuries.

Her son in law, Mohammud Yusuf, was quickly arrested. He lived with Ms Stevens daughter (Margaret) and their two children. It was alleged that after Margaret had left the house, Mr Yusuf attacked her mother – it seems that this was not the first occasion that this had happened.

The prosecution stated that there was a sexual motive for this, and put forward evidence that Mr Yusuf had an ‘obsession with violent pornography’ and his mobile phone had ‘searches for pornographic videos showing violent rape, gang rape and incest’.

Conviction

On 2nd June 2014 Mr Yusuf was unanimously convicted of murder. Sentence was adjourned until Friday 6 June..

Judge’s comments

The Judge made various comments about the gravity of the offence – “This lady suffered the most agonising death imaginable … I have never come across such a factual background of a case like this”,

Sentence

As well you know by now, there is only one sentence for murder – mandatory life. The question facing the Judge was how long was the tariff going to be?

Our factsheet on murder sentencing is here.

We don’t have the Judge’s sentencing remarks (yet) but it was thought that this may well be considered to be a murder ‘involving sexual or sadistic conduct‘, which would give a starting point of 30 years. From there, the Judge would have to consider whether to move up or down (or both) to reflect the aggravation and mitigation.

In the event, the Judge imposed a 25-year minimum term. There was no discount for a guilty plea, which in murder cases is limited to 1/6 or 5 years.

We are unaware of the exact facts – and the extent of the injuries – and so making an assessment of the length of minimum term is difficult.

What we are able to say though, however, is that whether the Judge selected a 30-year minimum term (based on sexual conduct – which seems likely) or a 15-year term (having decided that the higher starting point didn’t apply, it is the eventual total that matters.

Moving down from 30 to reflect mitigation, or moving up from 15 to reflect aggravation is simply two routes to the same end; the correct sentence.

As we have said, we are unsure as to whether this is too short so we will wait for the sentencing remarks to see how the Judge arrived at the 25-year figure.

Ahmed Al-Khatib jailed for life for ‘honour killing’ of Rania Alayed

Manchester Evening News

Manchester Evening News

Introduction

On 4th June 2014 Ahmed Al-Khatib was found guilty of murdering Rania Alayed, his wife. He was sentenced to the mandatory sentence of life imprisonment with a minimum term of 20 years. His brother, Muhaned Al Khatib, was cleared of murder but sentenced to 3 years for Perverting the Course of Justice which he had previously admitted. This related to the hiding of Ms Alayed’s body.

A third brother, Hussain Al-Khatib, was found guilty of Perverting the Course of Justice and sentenced to 4 years in prison. This also related to the disposal of the body (which has still not been found).

The Prosecution alleged that the motive for the killing was a concern that Ms Alayed was “becoming ‘too Westernised’ for her controlling husband’s liking.” We don’t have the sentencing remarks, so we don’t know whether this was accepted by the Judge.

What  we do have from the news reports is the following :

The judge said that he was sure it was Ahmed’s intention to kill and that his ‘main motive was jealousy’.

“How you killed Rania may never be known but I think it’s likely you strangled or smothered her, your actions after you murdered Rania showed no remorse – you thought she deserved to die”, he added.

The judge went on to say that Ahmed may have had a ‘breakdown’ since his arrest, but there was ‘no doubt at all’ that he had ‘hugely exaggerated’ his symptons and that his courtoom outbursts were ‘deliberately staged’.

“Your ridiculous claim that when you killed Rania you were acting in self-defence after seeing her turn into a devil trying to strangle you was a further insult to her memory and the jury’s intelligence.

 

Comment

The sentence ‘feels’ right given the facts. Looking at the aggravating features, the main one is the disposal of the body. There don’t appear to be any mitigating features (bar possibly his mental health, although the Judge wasn’t too impressed by that). The fact that he was intending to kill his wife is not an aggravating feature and there is a bit of concern about the Judge comments about the ‘ridiculous claim’ that Mr Ahmed put forward. A defendant should not be penalised for having a trial.

So, looking at it that way, it wouldn’t be a surprise if there was an appeal. A tariff of 17-18 would not have been one that could be criticised, but I doubt that the Court of Appeal would interfere with this one.

On a separate note, I am surprised that there has not been any calls for there to be a higher starting point for honour killings. In practice, the higher level of planning that is often involved, will commonly lead to a higher sentence, but I wouldn’t bet against seeing someone suggest a 20 or 25 year tariff for such murders.

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?

 

Five teenagers found guilty of murder

Clockwise from top left: Reese O'Shaughnessy, Andrew Hewitt, Keyfer Dykstra, Corey Hewitt, Joseph McGill

Sean McHugh was just nineteen when he was stabbed to death in a Liverpool launderette last year.

 

Six teenagers were tried for the murder at Liverpool Crown Court.  Reese O’Shaughnessy, 19, alleged to have been the ringleader, and Keyfer Dykstra, 14, were unanimously found guilty.  Andrew Hewitt, 15, Corey Hewitt and Joseph McGill, both 14, but just 13 at the time, were found guilty by a majority of 10-2.  The sixth teenager was found not guilty, and was released having spent seven months in custody awaiting sentence.

The jury spent over 17 hours in deliberations.  The boys, said to be part of a gang known as “The Laneheads”, cornered Mr McHugh and attacked him with knives and what was described as a makeshift “sword stick” almost two feet long.  He escaped, was found in an alleyway and later died in hospital.

Some of the joint-enterprise attack was captured on CCTV, and this, along with text messages sent between the boys, was shown during trial.

The defendants were subject to reporting restrictions throughout the trial, however following the verdicts Judge Goldstone QC, the Senior Resident Circuit Judge at Liverpool Crown Court, lifted the restrictions, saying:

 “I am quite satisfied the criteria for the naming of the defendants is made out. It is in the public interest they be named, not to score points on behalf of the those who have been bereaved but because the public is entitled to know when boys of this age commit crimes of the gravity which these are.”

Detective Chief Inspector Andy O’Connor reportedly said:

“Since the attack, none of the five has shown any remorse for what they did to Sean and for the taking a young man’s life.

They have even laughed and joked in the dock at court despite being charged with such a serious offence.”

 

Sentence

The boys face a life sentence for the murder. It is likely that the starting point for Reese O’Shaughnessy is likely to be 25 years, as he was over 18 at the time of the offence and brought a weapon to the scene.  The others face a starting point of 12 years, due to their ages.  The aggravating features, which may increase the overall term, are likely to be the planning involved in the offence.  Age may be a mitigating factor.

 

Sentencing will take place on 2nd July to allow for the preparation of Pre-Sentence Reports.

 

Joanna Dennehy and accomplices sentenced – another whole life order

Joanna Dennehy, Gary Stretch and Leslie Layton

Introduction 

We covered the trials of the two people (Garry Richards and Leslie Layton) who were convicted on 12th February 2014 of various offences relating to assistance given to Joanna Dennehy.

The offences

Dennehy: Murder x 3, attempted murder x 2

Gary Stretch: Preventing lawful burial x 3, attempted murder x 2

Leslie Layton: Preventing lawful burial x 3

Robert Moore: Assisting an offender

Facts of the offending

The first murder was Lukasz Slaboszewski. He was Ms Dennehy’s landlord and was stabbed to death by her on 19th March 2013. His body was placed in a wheelie bin in farmland. Mr Richards was convicted of helping to move the body (Preventing a Lawful Burial)

John Chapman (Ms Dennehy’s boss) was stabbed to death on 29th March and his body dumped in the countryside by Ms Dennehy with the assistance of Mr Richards and Mr Layton (Preventing a Lawful Burial).

Ms Dennehy’s housemate, Kevin Lee, was killed on 29th March and his body found in farmland the next day. Again it seems that Mr Richards and Mr Layton assisted with moving the body. This was the first to be discovered and sparked the investigation.

It seems that Ms Dennehy was quickly linked to the murder and it was publicised that she was wanted for questioning in connection with the murder of Mr Lee. Ms Dennehy and Mr Richards were put up for the night by Mr Moore who was later to lie to the police about this and maintained contact with Ms Dennehy. This founded the charge of Assisting an Offender against Mr Moore.

Ms Dennehy and Mr Richards went to Hertfordshire where, on 2nd April, Ms Dennehy got out of the car that was being driven by Mr Richards and stabbed Robin Bereza, a man who was out walking his dog. He was left for dead. 15 minutes later another random victim, John Rogers, another dog walker, was selected (this time by Mr Richards). Ms Dennehy stabbed him several times and left him, taking his dog with her. They were both arrested shortly afterwards. These were the charges of attempted murder that Ms Dennehy pleaded guilty to and Mr Richards was convicted.

Mr Layton was also convicted of perverting the course of justice. It is not clear what this relates to.

Mr Moore has never been in trouble before. The other three have various different sets of previous offending, but nothing on this league.

It is perhaps clear that Ms Dehenny was the prime mover behind all the offending. This was in fact confirmed by her in mitigation. She had written a letter a letter to the Judge where it appear she apologised for the two random stabbings, but not the three murders.

(much of the material here is from Sally Chidzoy and links provided). The Guardian also has some good background.

Offences and sentences

Joanna Dennehy :

  • Murder of Lucasz Slaboszewski
  • Murder of John Chapman 
  • Murder of Kevin Lee
  • Attempted murder of Robin Bereza
  • Attempted murder of John Rogers

Life sentence (whole life order)

Gary Stretch:

  • Preventing the lawful burial of Lucasz Slaboszewski –
  • Preventing the lawful burial of John Chapman –
  • Preventing the lawful burial of Kevin Lee –
  • Attempted murder of Robin Bereza –
  • Attempted murder of John Rogers –

Life with 19-year minimum term

According to Fiona Hamilton of The Times, Stretch said “thank you very much”, shrugged is shoulders and walked to cells with hands in his pockets after being sentenced.

Leslie Layton :

14 years

Robert Moore :

  • Assisting an offender –

3 years

Judge’s remarks

About Dennehy:

“You have written to me saying you feel no remorse for the murders”

“You are a cruel, calculating, selfish and manipulative serial killer”.

She killed to “gratify your own sadistic lust for blood”

‘Each of the three murders involved pre-planning and one was sexual/sadistic’ [paraphrased]

The Judge called Dennehy “a pathological liar”

The sentencing remarks are available here.

Comment

We’ll post a comment about the lengths of the sentences once we have been able to digest the sentencing remarks. In terms of the whole life order for Dennehy, it was always on the cards and would have been a surprise if the sentence was a lengthy minimum term (which practically could not have been much more than 40 years.)

We commented on 13th February, slightly tongue in cheek, that the whole life tariff given to Anwar Rosser could be the last whole life tariff given by the British courts. After the Court of Appeal’s judgment re the legality of whole life tariffs, we can expect to see some more (at least until they are challenged in Europe again!).

Whole Life Tariffs – the saga continues

ARCHITECTURE STOCK

Introduction

The Judicial Office twitter account is to be applauded for the way that they keep the public (including us) uptodate as best they can.

As a result of that, we found out on 9th January 2014 what the latest steps in the ‘whole life tariff saga’ will be:

What’s the issue here?

This relates to the question of whether it is lawful for a Court to impose a ‘whole life tariff’ – an order against a defendant who is convicted of murder that they are never released.

The power to do this comes from Schedule 21 Criminal Justice Act 2003 that sets out how a Crown Court Judge should approach sentencing somebody for murder.

Whilst it is clear that there is power under the domestic law (ie, the law as set down by Parliament as it relates to England and Wales), the issue that the Court of Appeal will have to address later this month is whether Sch 21 is compatible with Art 3 European Convention.

The ECHR has ruled that a whole life tariff with no possibility of a review is contrary to Art 3.

So, faced with that, what is a Court to do? Some Judges have passed whole life tariffs since that is still permitted under English law. Others have concluded that the ECHR ruling means that they should not make a whole life tariff.

The Court of Appeal will have to decide (1) whether whole life tariffs are incompatible with Art 3 and, if so, (2) what can be done about it (make a declaration of incompatibility, read down the statute, or some other resolution). It may be that the issue is ducked on the basis that none of the people who are appealing need to have a whole life tariff, but this is unlikely.

Whatever happens on the 24th January, that won’t be the end of the matter. The case may go to the Supreme Court (unusual for a sentencing appeal) but will certainly go to the ECHR. This one will run and run.

Why is the Court of Appeal having five judges to hear this?

This is an indication that the Court think that this is a ‘big’ judgment. The panel of Judges is very high-powered, which just reinforces this (there is an issue as to ‘precedent’ – given that the previous case had five Judges, it would take a 5 person court to overrule that, but I don’t think that that is the real issue).

It also means (in practice) that the Court of Appeal are gearing up for a fight with the ECHR. It’s not called a fight of course, in polite terms it’s a ‘dialogue’. The idea is that the Court of Appeal ‘feeds into’ the ECHR (being a trans-national Court) and the composition of the Court makes it clear that the judgment is carefully thought out to ‘assist’ the ECHR with ‘understanding’ UK law.

In fact, the Court of Appeal did this in November 2012 with the same issue of whole life tariffs (interestingly, two of the Judges who decided that case will be deciding this one). They concluded that whole life tariffs were lawful. The ECHR noted this in their judgment in Vinter, but came to the view that this was wrong.

What then is the point of another five person court? I suppose that it is possible that the ECHR will change their mind. The judgment in Vinter was pretty clear and comprehensive however. Is there more that can be said, or anything that the ECHR did not understand about the way the English and Welsh legal system works? Again, it is hard to think of anything.

It is always possible that the ECHR will change their mind due to the merits of further legal argument, but I think that that is unlikely. It may be (like with hearsay) that the ECHR sees the political danger and tempers their ruling somewhat.

Links

This issue has arisen on plenty of occasions before. We’ve set out here the various pieces that we have done either on the principle or on the individual people that will be in the Court of Appeal:

General Material

Ian McGloughlin

Mark Bridger

Note – Mr Bridger announced that he was abandoning his application for permission to appeal

Lee Newall

Prediction

This is an intensely political issue. The political make up of the Judges in the Court of Appeal is mixed, but I would be very surprised (amazed in fact) if the Court of Appeal did anything other than uphold whole life tariffs.

It’s always dangerous to predict, but it would be wrong of me not to have a bash. My guess is that at least one of the people will leave the Court without a whole life tariff (Mr McGloughlin is the easiest legally as it’s an AG Ref, but Mr Newell is perhaps safest politically).

After that, I think that whilst the Supreme Court would not want to deal with this, they will take it up and (not unanimously) dismiss it. It will go back to the ECHR eventually. Where the ECHR will hold that whole life tariffs are unlawful and the process will start all over again… All the while the Government will do nothing.

Comment

(Disclaimer – this is my own personal view) – My own view is that Vinter is correct and whole life tariffs are unlawful (the links above set out the reasons why).

But, whether that is right or wrong, the wider question is our relationship with the ECHR. To me, it is clear – we have signed up to this and we are bound by it, so rather than complaining, just get on and comply with the Court’s ruling.

There has been much in the press about this, but it is manufactured outrage. All that is required to ensure compliance is to have a provision that after someone serving a whole life tariff has served 25 years there should be a review (which would be best done by a Judge) where the Judge checks to see that a whole life tariff is appropriate.

We are not talking great issues of long-standing principle here. Whole life tariffs without review have only been an option since December 2004. It is not clear whether Parliament even thought about the (then existing) review position when they passed the behemoth that is the Criminal Justice Act 2003.

The impact of allowing a review would be so minimal as to have passed unnoticed had the Government not been determined to make Europe an issue. A sensible and mature government could have dealt with this with a minimum of cost and fuss. It is a pity that this one did not.