Abstract
In 2003, the UK Parliament introduced a presumptive minimum sentencing scheme for the offence of murder. Schedule 21 of the Criminal Justice Act 2003 sought to achieve greater consistency in the setting of minimum terms of imprisonment, while also providing a clear directive to judges on the need to punish and deter particularly aggravating contexts of intentional lethal violence. This article critically analyses the effects of this approach to sentencing, with 10 years' hindsight, and considers whether the continued imposition of a presumptive minimum sentencing scheme is in the best interests of justice. To examine the impacts of the 2003 Act, the article draws on interviews conducted with 26 English legal practitioners. It concludes that the introduction of a sentencing guideline for murder, alongside the repeal of Schedule 21, would better align sentencing practices for murder with those of other serious offences while also arguably allowing for more proportionate sentences to be applied on an individual case-by-case basis.
Keywords
Introduction
In 2003, as part of a package of wider reforms to criminal and sentencing law, the UK Parliament introduced starting points for judges to consider when imposing a minimum term of imprisonment for all offenders convicted of murder in the English courts (Criminal Justice Act 2003 (UK), s269). The resulting Schedule 21 of the Criminal Justice Act 2003 sought to achieve greater consistency in the setting of minimum terms of imprisonment, while also providing a clear directive to judges on the need to punish and deter particularly aggravating contexts of intentional lethal violence. While the Schedule has now been in operation for more than a decade, there is limited research examining its impact in practice, and to date there is no research that interrogates legal practitioners’ perceptions on the effects of this approach to sentencing. This article directly addresses this gap in current understanding. The need to reconsider the viability of minimum starting points for murder in England and Wales clearly emerged from a June 2011 Report by the Ministry of Justice (MOJ, 2011: 11 s3.3), which described the legislation framing starting points for murder as ‘ill-thought out and over prescriptive policy’. This article addresses the concerns of the MOJ by providing a timely evaluation of English legal practitioners’ perceptions of Schedule 21 and the viability of this approach to minimum sentencing for murder 10 years after its implementation.
In examining the adequacy of current minimum sentencing practices for murder in England and Wales, this article is structured in four parts. The first provides an overview of the research upon which this article is based. Next, Schedule 21 and current minimum sentencing legislation for murder in England and Wales are examined, including an analysis of legal practitioners’ views on the adequacy of the Schedule and the effects of its operation since 2003. The second half of the article discusses the political influences and barriers to sentencing reform (part 3) as well as the viability of adopting a sentencing guideline approach to minimum sentencing for murder (part 4). The article concludes that the introduction of a definitive sentencing guideline for murder, alongside the repeal of Schedule 21, would better align sentencing practices for murder with those of other serious offences while also arguably allowing for more proportionate sentences to be applied on an individual case-by-case basis.
Research design
This article derives from a wider research project examining the effects of homicide law reform in the Victorian, New South Wales (NSW) and English criminal justice systems. As part of that project, throughout 2010 interviews were conducted with 81 members of the three jurisdictions under study. This article draws specifically on the 26 in-depth, face-to-face interviews conducted in England to examine legal practitioners’ perceptions of minimum sentencing legislation for murder and, specifically, the operation of Schedule 21. Of the 26 English practitioners interviewed, all had at least 24 months' experience as legal practitioners (either in the role of judge or legal counsel) in homicide cases. Specifically, six interview respondents were members of the judiciary and 20 respondents were currently practising criminal barristers who had acted as both prosecution and defence counsel in past homicide cases. Of these participants, four were female (15%) and 22 were male (85%). While the English interviews were primarily conducted in London, there were a smaller number of interviews also conducted in Liverpool, Manchester, Coventry, Leeds, Kingston upon Hull and Birmingham. All interviews were audio taped and lasted between 30 and 90 min in length. The resulting interview data were thematically analysed using the qualitative data software NVivo. To ensure participant confidentiality, all practitioners were assigned pseudonyms and are referred to as such throughout this article. The pseudonyms reflect the professional role of the respondent, followed by a randomly assigned letter of the alphabet (i.e. JudgeA, CounselB).
The resulting interview data provide valuable insight into the impact of this legislation in practice and the views of those charged with its implementation. The value of using interviews with legal practitioners to gain insight into the operation of the law is well recognised throughout legal scholarship (Davis, 2005; Fitz-Gibbon, 2014b; Nelken 2010; Partington, 2005). However, such recognition has often been accompanied by an acknowledgement of the difficulties that researchers face in gaining access to those working within the criminal justice system, in particular, members of the judiciary (Ashworth, 1995; Baldwin, 2008; Mackenzie, 2005). This has meant that to date, ‘this distaste for research has not altogether prevented criminologists from involving sentencers in their inquiries, although it has invariably been lay magistrates rather than professional judges who have participated’ (Baldwin, 2008: 386). This observation highlights the significance of the interview data that are drawn upon throughout this article and which are used to provide a unique insight into the operation of minimum sentencing legislation in England and Wales. In so doing, this article builds on previous legal and criminological scholarship that has examined the views of those within the justice system (see e.g. Bartels, 2009; Darbyshire, 2011; Fitz-Gibbon, 2014a; Mackenzie, 2005).
Schedule 21 and sentencing practices for murder
Minimum starting points for murder
This provision was added to the 30-year starting point description in December 2012 under section 65(9) of the Legal Aid, Sentencing and Punishment of Offenders Act 2013 (UK).
The 25-year starting point was introduced in 2010 under the Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term) Order 2010. It applies to all murders committed on or after 2 March 2010.
Beyond these five minimum starting points, the 2003 Act also provides a non-exhaustive list of aggravating and mitigating factors that a judge should take into consideration when determining the minimum term of imprisonment (2003 Act: s269(5), ss10–11). Consideration is also given to whether the offender has any previous convictions, 3 whether a plea of guilty was entered and whether the offence was committed while the offender was on bail (Act 2003: s269(5) at s12). In considering the various starting points, mitigating and aggravating factors and other additional considerations, the legislation is not binding but requires a judge to state their reason if departing from the recommended starting point in their sentencing judgment (Act 2003: s270(2)(b)).
Throughout the interviews, English legal counsel were heavily critical of the ongoing operation and impact of Schedule 21 of the 2003 Act. These critiques are broadly captured in practitioners’ descriptions of the Schedule as ‘ridiculous’ (CounselD), ‘insane’ (CounselG) and as posing ‘very serious problems’ in practice (JudgeE). Expanding on these views, a legal counsel foreshadowed that ‘any regime that sets down something inflexible like that is going to have its problems, isn’t it?’ (CounselT).
In examining the merits of these critiques alongside the ongoing viability of this approach to minimum sentencing for murder, this article explores three specific concerns that emerged across the interviews: the role that the legislation has played in increasing sentences imposed for murder, the formulaic nature of the Schedule and its role in complicating the sentencing process. These concerns sat alongside the almost unanimous perception amongst those interviewed that the implementation of a restrictive sentencing scheme, such as Schedule 21, was fuelled by political motivations to appear tough on crime and retain government control over sentencing (this view is explored in the latter half of this article).
Increasing sentences for murder
English legal practitioners’ critiques of Schedule 21 were largely centred on the numerical values at which the starting points are set, and a dominant perception that those points have had the effect of unduly increasing minimum sentences imposed for murder. 4 Illustrating this view, legal counsel interviewed described the starting points as ‘very, very high, pretty much doubled from what they were under the old law’ (CounselE), ‘too high’ (CounselS, CounselP) and ‘far too high’ (CounselM). Expanding on this, legal counsel also commented that sentences imposed have ‘gone up quite significantly’ (Counsel0) and that as a result of the Schedule ‘you are looking at much higher sentences, phenomenal sentences now’ (CounselF).
This view was also expressed, albeit to a lesser extent, by several of the six members of the English judiciary interviewed, two of whom described that the main effect of the Schedule has been ‘to ratchet up’ sentences (JudgeA), and take sentences imposed ‘out of proportion in some cases’ (JudgeE). Beyond these interviews, the impact of the Schedule in terms of increasing minimum terms has been noted to varying extents in research (see e.g. Ashworth and Player, 2005: 836; Mitchell, 2013).
Beyond sentences imposed for the offence of murder, several practitioners interviewed also noted the snowball effect that this has had on sentencing practices for other serious offences. As one judge argued, One of the consequences of the tariffs set by Parliament for murder has been to ratchet up the sentencing for attempted murder and manslaughter for this very reason. I’m not sure that that ratcheting up is necessarily good … I’m not sure it benefits society at large. (JudgeA)
This identified failure on the part of the Schedule to allow for proportionality is concerning, given that Section 143(1) of the same Act establishes the importance of achieving proportionality in sentencing. As described by Ashworth and Player (2005: 826), the Act ‘sets forth a proportionality requirement, which is clearly intended to be crucial for certain key sentencing decisions’. However, when the Act’s impact is considered specifically in relation to the offence of murder, this requirement appears to have been undermined by the effects of Schedule 21. This is particularly concerning when considered in light of research that has found that members of the public are more concerned with the notion of proportionality in sentencing than the need for deterrence and denunciation (Roberts, 2003). As explained by English sentencing scholar Julian Roberts (2003: 504), ‘by limiting a court’s ability to impose a proportional sentence, mandatory minima can violate the principle of proportionality, and this is likely to undermine, rather than enhance, public confidence in the courts’.
Beyond proportionality, an increase in the length of minimum sentences imposed as a result of Schedule 21 is also problematic in light of research identifying that the implementation of restrictive sentencing practices, such as presumptive minimum and mandatory sentencing schemes, have little deterrent value and rarely lead to a reduction in offending (Brown, 2001; Hoel and Gelb, 2008; Roberts, 2003; Tonry, 1992, 2009). This inevitably raises the question of what benefits such policies as Schedule 21 have in practice that outweigh the arguably negative impact of their operation.
Increases in the length of sentences imposed, alongside the imposition of mandatory minimum or presumptive sentencing legislation, have become a recurring theme of law and order sentencing policies in the UK and comparable Westminster jurisdictions worldwide (Bjerk, 2005; Fitz-Gibbon, 2013). For example, in the same year as Schedule 21 was introduced, the NSW State Government in Australia introduced a presumptive minimum sentencing framework by way of standard non-parole periods (SNPP) for serious offences ( Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 ). Mirroring English practitioners’ concerns about minimum sentencing schemes, an evaluation of the SNPP scheme by the Judicial Commission of NSW (2010) revealed that the legislation had led to an increase in both the severity of penalties imposed and the duration of the terms of imprisonment imposed. 5
This outcome is somewhat unsurprising given that restrictive sentencing frameworks – such as Schedule 21 in England and SNPPs in NSW – are often introduced by politicians as a result of ‘tough on crime’ campaigns designed to curry public favour (Hogg and Brown, 1998; Pratt and Clark, 2005; Roberts, 2008b). As Palmer (2005: 29) explains, the likely consequence of such schemes is that the increased sentences imposed become ‘proportional to the anger and resentment the public feel towards criminals, rather than proportional to the crime’. In this respect, Schedule 21 arguably provides a stark illustration of the political promotion of retribution over rehabilitation in the formulation of sentencing policy over the last 10 years.
The ongoing operation of Schedule 21, and its impact in increasing sentences imposed for murder, is highly problematic at a time when prison systems worldwide are experiencing overcrowding and record prison population numbers (Bearman and Dar, 2013; MOJ, 2014). For this reason alone, the continued implementation of any policy that unjustifiably increases length of terms served cannot operate unchallenged. Beyond the English context, the importance of addressing this issue has been recognised by way of reform in other jurisdictions, such as the United States, where several states have removed mandatory minimum sentencing legislation in a bid to reduce high rates of imprisonment (Hutton and Tata, 2010; Porter, 2013).
A formulaic approach to sentencing
Beyond concerns surrounding increases in the minimum terms of imprisonment imposed post 2003, legal practitioners interviewed were also heavily critical of the introduction of legislation that further restricts judicial discretion in sentencing for murder. The need for discretionary frameworks at this point of the sentencing exercise was emphasised in light of the continued implementation of a mandatory life sentence for murder. As described by one judge, the Schedule hampers our discretion and it creates artificial situations. The more you try to restrict judges’ discretion the more likely you are to produce results which don't make sense because you can’t predict every conceivable situation. (JudgeB) As soon as the verdict comes in you know what you are going to get because it is so formulaic. It’s now that way with a lot of other crimes as well … it’s like a computer system – you’ve done this, like this, so you get that. There is no discretion really anymore and it’s more difficult to make an impact on your [sentencing] submissions. (CounselK) The existence of any [sentencing] policy would undermine the principles of judicial independence and individualised justice in which every case is said to be unique and dealt with as such. The offender took a knife or other weapon to the scene intending to – (a) commit any offence, or (b) have it available to use as a weapon, and used that knife or other weapon in committing the murder.
Beyond these concerns, it is important to note that some judges (two of the six in this sample) and legal counsel interviewed did support the introduction of the minimum starting points for murder. Expressing the view that the legislation promotes consistency in sentencing, these practitioners believed that Schedule 21 achieved an appropriate balance between prescriptive sentencing and still allowing some discretion in setting the minimum term. As one judge commented: It’s got the advantage that it promotes a degree of consistency and still allows sufficient discretion … discretion in fixing the minimum term is reduced, not taken away altogether by any means. (JudgeE) I think the starting points are right and I also think the potential for moving one way or the other, provided you explain why you’re doing it. I think that’s a good thing as well, because they are only guidelines. (CounselR)
The May 2007 sentencing of Frank Lund at Liverpool Crown Court for the murder of his wife provides an example of the potential for judges to move away from the starting points listed in the Schedule. Fifty-eight-year-old Frank Lund was convicted of murdering his sick wife, Patricia, who was suffering from manic depression and irritable bowel syndrome. He complied by killing her (R v Frank Lund [2007]; see also Lipscombe, 2012). Departing dramatically from the recommended starting point of 15 years, Lund was sentenced by Mr Justice Silber to the mandatory life term, with a minimum tariff of three years. While the details of the case are certainly unique – Lund suffocated his wife after she had made repeated suicide attempts (Jenkins, 2007) – the case does illustrate the ability of judges to move away from the Schedule in an exceptional case. However, given that this case occurred prior to the interviews drawn upon throughout this article, it would appear that some legal practitioners’ interviewed perceive that such flexibility does not extend far enough or perhaps is not applied often enough.
An unnecessary complication to the sentencing process
In addition to increasing terms of imprisonment imposed, whilst decreasing judicial discretion in sentencing for murder, according to legal practitioners, the operation of Schedule 21 has also added an unnecessary complication to the sentencing phase of the criminal justice system. As one judge noted: Personally I think it is too complicated. The very fact that you have five starting points. I think it is unnecessary … it was the previous government’s taste, as it seems to a lot of judges, for prescribing things. (JudgeE) Some criticisms of the wording of the current law are not unique to Schedule 21, but they still give cause for concern. What, for example is a substantial degree of planning or premeditation? How much deliberation is necessary to consider planning or premeditation? Just how does ‘substantial’ planning or premeditation (in paragraph 4) differ from ‘significant degree of’ planning or premeditation (in paragraph 10)? seeks to analyse in extraordinary detail each and every type of murder. The result is guidance that is incoherent and unnecessarily complex, and is badly in need of reform so that justice can be done properly in each case.
The politics of sentencing reform
The political influence on sentencing reform has long been recognised and critiqued in research, with particular reference to the development of mandatory sentencing schemes, indeterminate sentencing, zero tolerance schemes and increased maximum penalties (Brown, 2002; Fitz-Gibbon, 2013; Freiberg, 2008; Loader, 2009; Mitchell and Roberts, 2012; Palmer, 2005). As noted by leading Australian sentencing scholar Arie Freiberg (2008: 148), ‘sentencing is as much about politics as it is about law or criminology’. With this in mind, it is unsurprising, albeit frustrating, that the majority of legal practitioners interviewed attributed the introduction of Schedule 21 to a political desire to implement a sentencing policy that would curry public favour by promoting law and order justice. As succinctly described by one judge, Schedule 21 ‘keeps the public happy’ (JudgeD).
The influence of law and order motivations in the development of criminal justice policy in England and Wales is by no means a new phenomenon (Newburn, 2007). In 1992, the successful Labour Party campaign led by Tony Blair promised a government that would be ‘tough on crime, [and] tough on the causes of crime’. Driven by this catchcry, the campaign was ultimately successful in overturning previous ‘soft on crime’ associations with the British Labour Party. It also demonstrated the capacity of a punitive law and order agenda to garner support from a public increasingly anxious about crime and justice issues (Reiner, 2000). Over two decades later, legal practitioners’ views on the motivations for the implementation of Schedule 21 illustrate the continued dominance of ‘tough on crime’ sentencing legislation in England and Wales. As explained by one legal counsel, ‘It [the Schedule] was a political initiative forced through by the Home Secretary to try to achieve political aims’ (CounselP). Expanding on this view, another legal counsel commented: Part of the problem in this country is that sentencing has become so politicised … There is no doubt that there has been a concerted attempt by parliament … to reduce and constrain judicial discretion. I think there has been a perception that the judges are frankly soft and that is particularly the case in relation to the minimum terms in murder cases because there is no doubt that the effect of the Schedule has been to very significantly increase minimum terms for murder. (CounselS)
An additional element to the political influence critique is the political bargaining opportunity that a minimum sentencing scheme offers. The Minister of Justice can amend Schedule 21 at any point without recourse to Parliament. As is evident from changes and additions to the scheme over its 10-year existence, because of this leeway permitted the scheme can be used to curry favour by increasing the point at which a controversial ‘type’ of homicide is sentenced. This occurred in 2010 when following the murder of 16-year-old Ben Kinsella, a public campaign led by the victim’s parents advocated for an increase in sentences imposed for murders involving the use of a knife (Travis, 2009). Responding to that campaign, the then Justice Secretary, Jack Straw, announced that minimum sentences for persons convicted of a ‘knife crime’ murder would increase from 15 to 25 years. Highlighting the motivation behind that decision, Straw stated: The loss of a loved one in any circumstances is heartbreaking, and even more so when they are the victim of a senseless and appalling murder. It is only right that thugs who carry knives with the intention of using them, potentially to kill, should go to prison for a long time. (As cited in Travis, 2009)
The introduction of Schedule 21 can also be viewed as a political strategy to maintain government control over the length of sentences imposed for murder following the 2002 judgment of the European Court of Human Rights in Stafford v. United Kingdom (2002) 35 EHRR 32. In Stafford, the Court ruled that for persons convicted of murder the decision to fix an offender’s release date must be made by an ‘independent and impartial tribunal’ (Stafford, at 1121). This judgment meant that the English approach at the time, whereby a government minister (namely the Home Secretary) set the release date for all persons convicted of murder, was a violation of human rights (Lacey et al., 2003: 727). However, while this judgment could have effectively reduced government control over the minimum term served by those convicted of murder, the British government’s introduction of Schedule 21 shortly following Stafford can be viewed as a knee-jerk reaction, which maintains a degree of control over sentencing in this area.
Sentencing guidelines: An alternative approach to minimum sentencing for murder?
In light of the dominant critiques of Schedule 21, it is important to consider how to better legislate for minimum terms for murder, keeping in mind the current political climate and the unlikelihood of any reform which appears ‘soft on crime’ gaining traction. An attractive solution to this is arguably found in the repeal of Schedule 21 alongside the introduction of a definitive sentencing guideline for murder. Not only would this represent a step forward in bringing sentencing for murder in line with sentencing practices for other serious offences in England and Wales, but it would also offer an opportunity for the highly experienced members of the Sentencing Council to review the minimum sentencing ranges for murder when establishing this judgment.
The need for a timely consideration of this alternative approach is particularly important given the ‘considerable effect’ that Schedule 21 has already had in its first 10 years on sentencing practices for other serious offences, such as attempted murder (Ashworth, 2013: 21). It is argued that rather than bringing sentencing for other serious offences in line with Schedule 21, the opposite would be a more fruitful and just approach.
Sentencing guidelines were first introduced in England and Wales in 1998 and were provided by the Court of Appeal. However, following the introduction of the
Coroners and Justice Act 2009
, definitive sentencing guidelines in England and Wales have been produced by the Sentencing Council (
Coroners and Justice Act 2009
, Part 4). While, to date, the Council has not produced a definitive guideline for the offence of murder, it has for other serious offences including assault (issued March 2011), burglary (October 2011), drug offences (March 2011), sexual offences (December 2013) and environmental offences (February 2014). For these offences, Roberts (2012: 278) describes a ‘step-by-step sentencing’ process, whereby the sentencing judge should: select a category sentence range, and then a provision sentence within that range, the guidelines format [then] requires courts to proceed through seven further steps (nine in all), including application of the totality principle, the dangerous provisions …, consideration of any time spent in pre-trial detention, and allowing reductions for a guilty plea and for any assistance provided by defendants to the prosecutor or police.
This argument is enhanced when the flexible requirements of a judge to comply with the guidelines are also taken into consideration. According to the
Coroners and Justice Act 2009
(s125 (1)), in sentencing an offender a judge ‘must’ follow any relevant sentencing guideline, except in instances where ‘it is contrary to the interests of justice to do so’.
6
This phrasing in the 2009 Act arguably permits a degree of discretion in setting a minimum term for a guideline offence.
7
As noted by Roberts (2011b: 1007): The ‘interests of justice’ qualification permits a relatively broad degree of discretion; it may be interpreted in many different ways. This wording is less restrictive than other statutory provisions.
In developing a definitive sentencing guideline for murder in place of Schedule 21, the Sentencing Council could draw on the work of Barry Mitchell (2013) who, in advocating for the development of a sentencing guideline for murder, drafted the initial steps of that process. Mitchell (2013: 70) argues that ‘a set of guidelines is particularly desirable so that the courts can provide a consistent and fair system of punishment for murder’ – the inference being that, to date, this has not been achieved through the current approach to sentencing.
Importantly, and in recognition of concerns surrounding the operation of Schedule 21, the definitive sentencing guideline for murder should be developed with equal recognition given to the factors that may mitigate or aggravate a minimum term imposed for murder. As noted by Roberts (2008a, 2011b), guidelines produced by the Council have tended to list significantly more aggravating than mitigating factors, an imbalance that undoubtedly fuels an increase in sentences imposed. As Roberts (2011b: 1005) argues: If courts are more likely to be sensitized to aggravating circumstances, or if there are more aggravating factors identified, this may enhance the effect of aggravation relative to mitigation. The development of sentencing guidelines provides an opportunity to establish a coherent approach to aggravation and mitigation across all offences, while enabling offence-by-offence guidance to be provided. It forces drafters into the discipline of clearly articulating each aggravating and mitigating factor and explaining how and why it is relevant to an offence. It requires, to the extent possible, that the justification for each factor is developed in a clear and transparent way.
By ensuring consistency in sentencing, proponents of sentencing guidelines argue that they serve to maintain, and in some cases increase, public confidence in the justice system (Cowdrey, 2006; Warner, 2003). As argued by Australian sentencing scholar Kate Warner (2003: 22), ‘guideline judgments can reinforce public confidence by making the reasoning process in sentencing more transparent and they can provide a mechanism for the input of public opinion into sentencing’ – two outcomes that from the view of legal practitioners’ interviewed are not being achieved through the operation of Schedule 21. In this respect, guidelines also serve a political ‘law and order’ purpose. They respond to community concerns surrounding lenient sentencing, but do not go as far as mandatory, presumptive minimum or grid sentencing schemes (Warner, 2003).
To ensure that the guidelines operate as intended and in line with the aims of their implementation, the 2009 legislation specifically requires the Sentencing Council to ‘monitor the operation and effect of its sentencing guidelines’ ( Coroners and Justice Act 2009 : s128). In adhering to this responsibility, the Council annually publishes the results of the Crown Court Sentencing Survey. The latest results, taken from the 2012 Survey, reveal high judicial compliance with the guidelines issued, with the majority of sentences imposed falling within the recommended sentencing range (Sentencing Council, 2013). For example, for offences covered by the Assault guideline, 96% of sentences recorded fell within the recommended sentencing range (Sentencing Council, 2013: 6). Of those that departed, 2% involved sentences imposed above the recommended range and 2% involved sentences imposed below the recommended range (Sentencing Council, 2013: 6). This high level of compliance with the recommended sentencing range is in many ways to be expected given the definition of department is so narrow (Roberts, 2013: 107–112).
Beyond the Council’s own compliance data, research to date has also observed a high consistency between the sentencing guideline and sentences imposed in the English Crown Courts (Pina-Sanchez and Linacre, 2013). Furthermore, in cases where a departure from the guideline did occur, research has found that this is more likely to result in a higher than lenient sentence (Roberts, 2011b).
Given the recognised value of sentencing guidelines in practice as well as the frequency with which judges impose a sentence within the recommended range, it is arguable that while potentially not offering a complete solution – which arguably cannot be achieved as long as the government commits to a mandatory life sentence – the introduction of a definitive sentencing guideline for murder would provide a more satisfactory framework for guiding minimum terms than that currently operationalised in the English courts. In contrast to the heavily critiqued Schedule 21, a sentencing guideline system is also likely to be received more favourably by those operating with the courts, specifically judges, as over half of the Council’s membership comprises members of the judiciary (Roberts, 2012). As argued by Roberts (2012: 272): the presence of seven judges as well as the fact that the Lord Chief Justice serves as President of the Council may have been necessary in England and Wales (and other common law jurisdictions as well) to ensure the support of the judiciary. Sentencing must always in the end depend on the view taken by the individual trial judge, which is why it is such an anxious process. In my view, the more we can leave it to the judge, subject to guidance by the Sentencing Council and with as little interference from Parliament as possible the better. We can make a start by repealing Schedule 21. (As cited in Lipscombe, 2012: 13)
Conclusion
As quoted in the introduction to this article, the MOJ (2011: 11 s3.3) have described Schedule 21 as ‘ill-thought out and overly prescriptive policy’. Despite recognising the shortcomings of this sentencing legislation, to date, no change has been implemented. As explored throughout this article, legal practitioners charged with the daily implementation of English homicide law question both the effectiveness and the ongoing viability of this approach to minimum sentencing for murder. While the formulaic nature of the Schedule has, to some extent, been addressed in case law, other concerns surrounding its impact in increasing sentences for murder (and other offences) and its contributing role in complicating the sentencing process remained unaddressed.
While the importance of achieving consistency in sentencing is undoubtedly appreciated, by drawing on the views of those working within the English criminal justice system, it is argued that proportionality and individualised justice could be better achieved through the introduction of a definitive sentencing guideline for murder. This approach would better align sentencing practices for murder with that of other serious offences. It would also provide a valuable opportunity for the Sentencing Council to reconsider the appropriate minimum sentencing ranges for murder, and the need to adequately recognise mitigating as well as aggravating factors in sentencing while maintaining some flexibility for the courts to depart from the guideline where appropriate.
This recommendation is made at a time when several jurisdictions internationally have favoured the introduction of presumptive minimum sentencing policies. Consequently, an insight into English legal practitioners’ predominantly negative views on the impact of Schedule 21 provides an important warning to comparable jurisdictions that are currently contemplating presumptive minimum sentencing approaches for serious offences. Although predictability and consistency in sentencing are important, they should not be attained at the loss of proportionality and individualised justice. This is particularly important given that comparable jurisdictions worldwide, such as Australia, are experiencing significant problems associated with an increasing prison population and prison overcrowding. In such a climate, any approach to sentencing that prioritises punishment and promotes an increase in minimum terms of imprisonment served should be carefully scrutinised and evaluated for merit and need.
Beyond the focus of minimum sentencing practices for murder, specifically, this article also highlights the importance of engaging those within the system in the law reform process. Consultation with members of the criminal justice system is incredibly valuable not only in terms of gaining insight into the daily operation of the law, but also in terms of gauging practitioner support for a policy direction and understanding the potential unintended consequences of reform. At a time when governments are arguably increasingly responding to the media and community concerns with reactionary law reform, this research reemphasises the need for evidence-based policies that are ‘road-tested’ through a rigorous consultation process. It remains unknown to what extent Schedule 21 would have survived such rigour.