Abstract
If the premise is accepted that murder is a uniquely grave crime, how should this be reflected where the perpetrator was a child aged under-18? Is there a place for indeterminate or life detention, in particular as a mandatory outcome? Having regard to the principle enshrined in Article 37 of the Convention on the Rights of the Child (United Nations (UN), 1989) that ‘neither capital punishment nor life imprisonment without possibility of release’ shall be imposed for offences committed by anyone aged under-18, and that ‘imprisonment of a child … shall be used only as a measure of last resort and for the shortest appropriate period of time’, read in tandem with Rule 17(1)(a) of the Beijing Rules (UN, 1985), proposing that sanctions should reflect not just the gravity of the offence and the needs of society but also the circumstances and the needs of the juvenile, the children’s rights advocacy network CRIN (Child Rights International Network) has conducted a series of surveys of the use of the ‘inhuman sentence’ of imprisoning children for life, within the Commonwealth (2012), Europe (2014) and the world (2015). The latter reported that this form of sanction remained ‘rife’, being then available in 73 states, including 46 within the Commonwealth, while in Europe it had been retained only by Cyprus, France and the United Kingdom.
Meantime in the United States, untroubled by the writ of the UN Convention, a sequence of Supreme Court judgements from Roper v Simmonds (2005) 543 US 551 to Montgomery v Louisiana (2016) 136 S. Ct. 718 (usefully summarised in a Policy Brief by Rovner for The Sentencing Project, 2017; see also Ford, 2017) have reined back first from use of capital punishment for child offenders and latterly of life without prospect of parole.
This Commentary addresses developments in the relevant law, requiring detention at the pleasure of the sovereign, and its application within England and Wales.
Her Majesty’s pleasure: A Brief History to 2003
Statutory provision for this purpose was first made in the Children Act 1908 s.103 whereby sentence of death, hitherto available for juveniles under the age of 16 on conviction of murder, was abolished for that age group.
… in lieu thereof the court shall sentence the child or young person to be detained during His Majesty’s pleasure, and, if so sentenced, he shall … be liable to be detained in such place and under such conditions as the Secretary of State may direct and while so detained shall be deemed to be in legal custody.
In scoping a suitable penal alternative, Parliament conveniently adopted without the need of further definition the form of social defence originally devised by the Criminal Lunatics Act 1800 as the appropriate means of securing the involuntary detention of any defendant acquitted of treason, murder or felony by reason of insanity where previously there had been no power to detain them, irrespective of risk.
1
The 1908 provision was re-enacted by the Children and Young Persons Act (CYPA) 1933 s.53(1), although extended to persons under the age of 18 years. The Murder (Abolition of Death Penalty) Act 1965 imposed mandatory life imprisonment for murder but amended s.53(1) to read: A person convicted of an offence who appears to the court to have been under the age of eighteen years at the time the offence was committed shall not, if he is convicted of murder, be sentenced to imprisonment for life, nor shall sentence of death be pronounced on or recorded against any such person; but in lieu thereof the court shall … sentence him to be detained during Her Majesty’s pleasure … .
The current relevant provision is within the Powers of Criminal Courts (Sentencing) Act (PCC(S)A) 2000, s.90 (as amended) specifying: Where a person convicted of murder or any other offence the sentence for which is fixed by law as life imprisonment appears to the court to have been aged under 18 at the time the offence was committed, the court shall … sentence him to be detained during Her Majesty’s pleasure.
2
Neither the 1908 nor the 1933 Act specified any mechanism for determining the duration of Her Majesty’s pleasure (HMP) detention or the process of directing release, being simply left to the Secretary of State (SoS, then the Home Secretary) to resolve. In practice, the executive obtained the advice of the trial judge and the Lord Chief Justice (LCJ) before fixing a minimum term (more commonly referred to as the ‘tariff’ period) to be served before release could be considered, namely (as in the case of all mandatory life sentences imposed for murder) the period of detention judged necessary with regards to the facts and circumstances of the crime to meet the requirements of retribution and general deterrence. The 1965 Act s.2 specified generically that ‘no person convicted of murder shall be released … on licence … unless the Secretary of State has prior to such release consulted the Lord Chief Justice … together with the trial judge if available’. That form of pre-release judicial consultation remained mandatory in respect of all mandatory lifers, including HMP detainees, under the Criminal Justice Act (CJA) 1967 (s.61) which brought into being the Parole Board and empowered the SoS to seek the recommendation of the Board. In due course, this basis for release migrated to the reworked parole provisions within CJA 1991 (s.35(2)).
By the point of the 1991 Act, the European Court of Human Rights had ruled (in Thynne and Others v UK (1990) 13 EHRR 666) that prisoners serving discretionary life sentences were entitled to have their continuing detention following expiry of their minimum term to be determined by a judicial authority, further to European Convention on Human Rights (ECHR) Article 5(4). 3 Accordingly, the Act provided both that the judge imposing discretionary life should determine the minimum term at point of sentence and that their continuing detention should be reviewed by an oral hearing conducted by a panel of the Parole Board with power to direct release. Subsequently, in Hussain v UK (1996) 22 EHRR 1, the Strasbourg Court determined that under Article 5(4) HMP detainees too were entitled to the same form of court-like scrutiny by the Board of their continuing post-tariff detention.
Meantime, an HMP case of considerable notoriety, involving two boys who at age 10 had abducted and murdered a child aged 2 years, had attracted wide publicity in respect of their minimum term. The trial judge had recommended 8 years; the LCJ had advised a period of 10 years; the Home Secretary had determined a tariff of 15 years, indicating that he had regard to ‘public concern about the case’, as evidenced by various press-orchestrated petitions. Furthermore, the Home Secretary had made a Parliamentary statement in 1993, 4 announcing that the minimum term set in HMP cases would, as in respect of other mandatory life sentences, in no circumstances be varied by reason of matters occurring subsequently to the commission of the offence. Following challenge by the two offenders, the House of Lords in R v SoS for the Home Department, ex parte Venables and Thompson [1998] AC 407 determined first that while a provisional and reviewable minimum term might be set as regards the period to be served by HMPs by way of punishment and deterrence, the overarching requirement specified by CYPA 1933 s.44(1) that the child’s welfare should be taken into account meant that the SoS was under a duty to keep their detention under continuous review. 5 Accordingly, the 1993 announcement had been misinformed. Second, in giving weight to public protests about the level of the tariff to be fixed, the SoS had misdirected himself as to what was relevant to his task, and his purported exercise of discretion had on that account been unfair and unlawful. The 15-year tariff determination was quashed. This decision prompted the SoS to announce 6 that in future his department would receive annual reports on the progress and development of HMPs whose initial tariff had yet to expire, and when half of HMPs’ initial tariff period had expired, he would consider a report on their progress and development, and invite representations, with a view to determining whether the tariff period originally set was still appropriate.
The same two HMPs next pursued their cause before the European Court (V. v United Kingdom (2000) 30 EHRR 121), securing a judgement determining, among other conclusions, that the SoS’ role in setting the minimum period of detention breached ECHR Article 6(1) 7 since, in acting in a ministerial capacity, he was not independent of the executive. In consequence, the government introduced legislation 8 that brought HMPs into line with discretionary lifers for tariff-determination purposes, transferring responsibility for determining the minimum term to the judge at point of sentence.
With the coming into effect of CJA 2003 (which in s.277 defines a ‘life sentence’ to include HMP detention), s.269 of that Act has required sentencers passing mandatory life terms to make an order specifying the period of time that the prisoner must serve before the Parole Board can consider release on licence, taking account of the seriousness of his or her offence and having regard to the general principles set out in Schedule 21 of the Act addressing the ‘determination of minimum term in relation to mandatory life sentences’. Whereas the Schedule specifies finite minimum term starting points for adults of 15, 25 or 30 years (with scope in exceptional cases for a ‘whole life’ term for those aged 21 years or older at the time of the crime), depending on designated crime characteristics, paragraph 7 states in respect of all murders, ‘If the offender was aged under-18 when he committed the offence, the appropriate starting point, in determining the minimum term, is 12 years’.
The Current Law in Action: Setting Minimum Terms
Any doubt regarding the full applicability of Schedule 21 in HMP cases beyond paragraph 7 was quickly resolved, most prominently by R v Last and Others [2005] 2 Cr. App. R. (S.) 64.
When aged nearly 18 L. and another adolescent girl (aged 19) had planned revenge upon a girl aged 17 because she had either been sexually involved with the boyfriend of one of their friends or had falsely alleged that he had sexually propositioned her. The victim was tricked into being taken to a quiet location where they subjected her to a prolonged attack, doused her in petrol and set her on fire. The younger perpetrator, L. was considered the more culpable, though unlike her co-accused she pleaded guilty.
9
On her appeal against a minimum term of 20 years (less time spent on custodial remand), the Court of Appeal clarified at the outset that ‘the remainder of Sch.21 has to be applied in the same way for a person under-18 as it would in the case of adult’. Having regard to paragraphs 4, 5 and 10, and with specific reference to ‘the planning
10
and sadistic nature of the offence’, the Court considered the crime ‘particularly serious’ and ‘truly horrendous’, ‘calculated, determined and cruel’, one that ‘could have warranted a 30 year starting point’ under the Schedule. However, Lord Woolf CJ observed that although L. only ‘just qualified’ for a starting point of 12 years based on her age and this ‘carries less weight than it would if an offender were younger’ (thus implying some form of age-related sliding scale for tariff purposes) a term of 24 years before credit for guilty plea would be ‘an exceptionally high minimum term for someone not yet 18 at the time of the offence’.
11
Accordingly, her term was reduced to 17 years.
Another early example of the application of Schedule 21 to upper-age juveniles was provided by = Attorney General’s Reference Nos 98 and 99 of 2006 (McGarry and Wells) [2007] 2 Cr. App. R. (S.) 19.
Having been drinking and seeking money to fund more alcohol two boys aged 17 encountered, attacked and robbed a man on the street late at night, subjecting him to forceful kicks and stamping to the head, albeit without intention to kill. One pleaded guilty and gave prosecution evidence against the other. In arguing that the minimum terms of 11 and 13 years had been unduly lenient the Attorney General submitted that the murder had been aggravated by being committed in the course of a robbery (murder ‘done for gain’ featuring in paragraph 5(2)(c) of the Schedule as of ‘particularly high’ seriousness and indicative of a minimum term for an adult of 30 years), the offenders having acted together, each having previous convictions, including violence. The Court of Appeal agreed, indicating that the sentencing judge should have increased the normal starting point quite substantially, given that two offenders were less than six months below 18 at the time of the crime and ‘from the papers … appear to have been mature for their ages’, notwithstanding ‘their difficult home backgrounds’. Their terms were increased to 16 and 19 years respectively.
The application of Schedule 21 in the context of a younger child was demonstrated by Attorney General’s Reference No. 126 of 2006 (H.). [2007] 2 Cr. App. R. (S.) 59.
Aged 14, without prior convictions or a history of violence and described as of low intelligence, emotionally immature for his age, lonely and isolated, with an emotionally disturbed upbringing, H. targeted an 11 year old boy with cystic fibrosis who attended the same school. Having lured him to his home with some form of sexual exploitation in mind he had struck the boy hard over the head with a kitchen pan before inflicting numerous and fatal stab wounds, disposing of the body in a refuse bin. On H’.s guilty plea the Crown Court received a psychiatric assessment that he had been suffering from an adjustment disorder at the time of the offence, a state of subjective stress and emotional disturbance arising from his ‘desperately sad and disturbing’ childhood. On reference to the Appeal Court on grounds that the 12 year minimum term imposed by the sentencing judge had been unduly lenient Judge LJ observed that ‘no mathematical table can be produced which calculates the culpability of a young offender with any specific age, and no list, however carefully drawn up, can provide an accurate reflection of the way in which a young offender may or may not have learned from or been damaged by the experiences to which his young life has been exposed’. Sentencers must make a balanced judgment of these matters. In this ‘fraught, worrying case’ ‘a number of features of the evidence militate against the conclusion that its aggravating and mitigating features balance each other out’. The deliberate selection of the victim for bullying and sexual abuse, the evident planning the sustained, murderous violence with more than one weapon and the H.’s calm efforts at concealment indicated ‘a formidable level of culpability and seriousness’. A 15 year minimum term was substituted.
Another instance of minimum term setting for considerably longer than the paragraph 7 starting point is provided by R v Cornick [2015] 1 Cr. App. R. (S.) 69.
At age 15 and without prior convictions C. had developed an entirely unprovoked angry resentment against a woman teacher at his school and, having planned to kill her and openly fantasised about this, he brought knives to the school and stabbed her repeatedly to the neck in front of her class, afterwards showing a striking absence of regret or remorse. The judge noted that the crime would attract a starting point of 25 years in the case of an adult perpetrator and considered that the obvious aggravating factors raised the term in C.’s case from 12 years to 25 years. After credit for age, guilty plea and his diagnosed adjustment disorder, the term was set at 20 years. In dismissing C.’s appeal Lord Thomas CJ affirmed that a mitigation-driven deduction of five years had been correct and that, taking into account the statutory factors, including the young appellant’s welfare, 20 years had been ‘entirely the right decision’.
12
A very recent illustration of a minimum term significantly greater than the 12 year starting point, imposed on younger juveniles, is offered by R v Markham and Edwards [2017] 2 Cr. App. R. (S.) 30 Two school friends aged 14 had developed a ‘besotted’ sexual relationship and a shared obsession with the possibility of committing suicide. M. adopted E’.s resentment of her mother and younger sister, grounded in her belief that they excluded her from family bonds. They had run away together but had been returned to their families who sought to punish and separate them, exacerbating their mutual sense of alienation and exclusion, prompting them to plan in detail the murder of E.’s mother and sister, killing one victim each by stabbing to the throat. Ultimately, E. felt unable to fulfil her part, leaving it to M. to commit both murders. They had talked of killing themselves afterwards but did not pursue that part of the plan. At trial M. pleaded guilty; E. sought unsuccessfully to secure conviction of manslaughter on grounds of diminished responsibility. Neither had previous convictions. In general terms both were assessed to have experienced disrupted and dysfunctional childhoods, leaving them emotionally instable, with attachment problems and aggressive, unfeeling temperaments that had caused them to over-invest hugely in their toxic relationship together. The trial judge had identified numerous aggravating factors with regard to the Schedule: a double murder, one victim being a young girl; their clear intention to kill and their ‘remarkable premeditation’ and ‘meticulous planning’ after various false starts; the ‘gross and unnatural betrayal’ of E.’s blood connection with the victims (‘matricide and sororicide’ in which M. had played an equal part); the victims’ vulnerability being attacked in their beds; the brutal nature of the murders ‘in the form of executions’, E.’s mother having suffered terribly in the last minutes of her; the use of a knife brought to the scene; their ‘grotesque’ conduct in the 36 hours following the killings (having sex and watching films), albeit to be judged in the context of their age and immaturity; their ‘expressed happiness’ at what they had done. On their appeal against minimum terms of 20 years each (with the usual reduction to reflect remand time), the Court of Appeal reiterated that though for juveniles the appropriate starting point is always 12 years, ‘features which would have changed the starting point for an adult become relevant as aggravating the offence and can affect the appropriate minimum term’. In this instance the sentencing judge had validly identified a starting point of 21 years but greater credit (one-sixth) should have been given for plea and the minimum terms were thus reduced from that point by 42 months to 17½ years, less time spent on remand.
The Current Law in Action: Reviewing Minimum Terms
When PCC(S)A 2000 s.82A required that the minimum term for HMPs would, in future, be set judicially at point of sentence, the SoS announced that existing HMPs (i.e. those sentenced before 30 November 2000) could make representations regarding their tariff length which would be considered by the LCJ who would make a recommendation that the SoS would in all instances adopt, thus providing for de facto retrospective judicial decision-making. 13 However, the Home Secretary took the view that no duty of continuing review applied in such cases. That stance was deemed erroneous in R (Smith) v SoS for the Home Department [2006] 1 AC 159, an existing case involving a girl involved in murder at age 17, sentenced in 1993, who had been assigned a 15-year minimum term by the SoS, a period now endorsed on review by the LCJ. Giving the lead judgement, Lord Bingham was clear that her case ‘should remain subject to continuing review for reconsideration of the minimum term imposed if clear evidence of exceptional and unforeseen progress is reasonably judged to require it’.
Given that Smith had identified ‘continuing review’ of minimum term to be an intrinsic feature of HMP detention that does not cease when the detainee attains adulthood and does not place an undue burden on the SoS (given that Ministry officials will already be routinely monitoring their progress), it followed that this should apply equally to HMPs sentenced under the new law applying from 30 November 2000, including those sentenced since implementation of the relevant provisions of 2003 Act, that is, for murder committed on or after 18 December 2003.
In brief, the process is currently as follows:
HMP detainees may apply for a review of the minimum term set by the trial judge at the halfway point of that term and thereafter at two yearly intervals;
An application leads to the compilation of a tariff review dossier by HM Prison and Probation Service (HMPPS);
The dossier is referred to a High Court judge whose decision takes the form of a recommendation to the SoS (now the Lord Chancellor and SoS for Justice);
The designated judge will normally proceed by consideration of the dossier and any representations on behalf of the detainee but has the discretion to conduct an oral hearing;
The judge reaches a recommendation by reference to the guidance given in Criteria for reduction of Tariff in respect of HMP detainees provided by HMPPS; 14
The SoS has undertaken to honour all such recommendations;
Because the procedure is extra-statutory a recommendation cannot be subject of an appeal.
Reduction in minimum term will cause the recipient to be referred earlier to the Parole Board who can consider his or her suitability for transfer to open prison on referral within the 3-year period predating tariff expiry. 15
The Current Criteria
For an HMP’s minimum term to be reduced, HMPSS stipulates that the judge must find evidence of one or more of the following three criteria, taking international and domestic obligations to children into account ‘in deciding where the balance between the public interest in punishment and the public interest in the offender’s welfare lies’. The first criterion is in clear line with the view of the Court of Appeal and subsequently the House of Lords in Smith:
Exceptional progress in prison, resulting in a significant alteration in the detainee’s maturity and outlook since the commission of the offence and a significant reduction in the level of risk posed to public safety.
Various specific factors are identified as promising indicators of exceptional progress: exemplary work and disciplinary record, ‘genuine remorse’ and acceptance of ‘an appropriate level of responsibility for the part played in the offence’, ability to build and maintain successful relationships with prisoners and staff and ‘successful engagement in work (including offending behaviour/offence-related courses) with a resulting substantial reduction in areas of risk’. ‘All of these should ideally have been sustained over a lengthy period and in more than one prison’. Furthermore, to indicate that the bar should be set high, the guidance adds that ‘to reach the threshold of exceptional progress there would also need to be some extra element’, showing that the detainee has undertaken a responsible role of some kind and proved trustworthy, for example, by having ‘done good works for the benefit of others’. 16
In addition, HMPPS specifies that reduction can be determined on the basis of
Risk to the detainee’s continued development that cannot be significantly mitigated or removed in the custodial environment.
or
Any matter that calls into question the basis of the original decision to set tariff at a particular level (e.g. about the circumstances of the offence itself or the detainee’s state of mind at the time), together with any other matter which appears relevant.
As regards risk to the detainee’s continuing development, HMPPS advises that his or her tariff should be reduced if his or her ‘welfare may be seriously prejudiced by his or her continued imprisonment’, and ‘the public interest in [their] welfare outweighs the public interest in a further period of imprisonment lasting at least until the expiry of the provisionally set tariff’.
Continuing Review: A Case Sample
To gain a better appreciation of the reality of minimum term adjustment, it has been possible to harvest a sample of recent reviews, accessed from readily available online depositories of judgements and decisions, yielding a total of 40 reviews conducted within the years 2014–2017 (36 males and four female HMPs). In 23 instances, the HMP had been aged 16–17 years at the time of murder, the remaining 17 having been aged 13–15 years. As regards, their provisional minimum terms 12 years (11 cases) or less had been specified in 20 cases, the lowest term being one of 9 years and of the remaining 19 cases (in one case, the term was not identified within the judge’s recommendation), 12 were for 14 or 15 years. The highest term (of 18 years) featured in two instances. A total of 16 judges had undertaken these reviews, ranging from a single case up to six cases. Four judges, who each undertook four or more reviews, had dealt with a half of all cases, thus suggesting some degree of specialisation, although ten judges had dealt with just one or two reviews. All 40 reviews had been conducted on the papers. An oral hearing was actively sought in one instance: Herbert [2016] EWHC 2008 (Admin). Although Langstaff J. was prepared to accept that an oral hearing is more likely to be ordered following the decision of the Supreme Court in Osborn and Booth v Parole Board [2014] AC 1115, he expressed difficulty in seeing how oral representations or evidence ‘could cause a re-assessment of the views expressed by those who have provided reports’.
Review resulted in a reduction recommendation in 16 instances – for 12 months in 11 cases and for 24 months in three instances (the other two being for 6 months and 15 months). Of those aged 13–15 years, eight of 17 secured a reduction, while eight of 23 aged 16–17 years gained reduction. Every instance of success in securing a reduction was on the basis of ‘exceptional progress’. In an instance where consideration was given to material calling into question the basis of the original tariff (Anderson-Burrowes [2014] EWHC 2489 (Admin)), it was reported that the applicant had found the confidence only since sentence to speak out and inform prison staff, and his solicitors that it was his elder brother who struck the fatal blow. Noting that this was a matter that might be better pursued by out-of-time application to the Court of Appeal, Spencer J. observed that It is no part of my function, on this application for a tariff review, to make findings of fact which are, or may be, entirely inconsistent with the basis of the jury’s verdict and the judge’s proper basis of the sentence, neither of which has been challenged on appeal.
In the same case, where ‘risk to continuing development’ also came to attention, Spencer J. observed that when an HMP is still serving sentence into their 20s, it is ‘inevitable’ that ‘there is a risk that the good work achieved in rehabilitation and development will be jeopardised by his becoming institutionalised’. In Trezise [2015] EWHC 2794 (Admin) Mitting J. concluded that ‘the public interest in upholding a proper sentence for a dreadful crime far outweighs the moderate impairment of T.’s welfare which might result from his continued detention’ in closed custodial conditions. However, T. nevertheless gained a 24-month reduction for his positive efforts to rehabilitate himself. His review serves to illustrate how exceptionality can be found where progress is considered more than could have been anticipated when he resorted to murder at age 17.
… he has done all in his power to address his failings, to better himself and to equip himself for life outside prison when and if released on life licence. Further, this exceptional progress could not have been foreseen, except as a theoretical possibility, when he was sentenced. His circumstances and conduct before the offence suggested that his future was as a drunken wastrel. It is now very unlikely that he will become so again.
In several instances where the reviewing judge acknowledged the detainee’s sound and promising progress, this was deemed not to count as ‘exceptional’, being considered simply to reflect the positive response which should routinely be expected of HMP detainees ‘to the rehabilitative arrangements and courses which are properly made available to assist [them] to address their offending behaviour and the risks they pose’ (Carroll [2015] EWHC 2785 (Admin)). Alternatively, the judge may conclude that the detainee needs to demonstrate that he or she can sustain positive progress in facing new challenges still ahead, such as onward transfer to the adult custodial estate, before a reduction would be merited, a stance that might appear to disadvantage those who attract an HMP sentence at a younger age and, thus, are more likely to remain within facilities for younger persons when reviewed.
Continuing Review: Scope for Victim Perspective?
Several of the reviews in the sample make reference to receipt of communication from secondary victims, relatives of the deceased, regarding the prospect of tariff reduction, in broad accord with the statutory Code of Practice for Victims of Crime (Ministry of Justice (MoJ), 2015).
17
Such statements sometimes strike a positive note (as in Anderson-Burrowes where the deceased’s widow expressed her belief that the detainee had not stabbed her husband and referring to the restorative justice meeting she had undertaken with the detainee) but more commonly reflect the enduring pain, loss and resentment. In Cunliffe [2015] EWHC 919 (Admin), the judge received a statement submitted by the deceased’s widow describing the devastating impact of her husband’s murder upon her family. At her request, the judge did not disclose this to the applicant but referred to it in his decision declining to recommend reduction (observing that it demonstrated graphically the deep and lasting effect of the ‘dreadful crime’), thus alerting the applicant to the statement’s existence. Although the decision was not open to appeal the applicant sought to challenge the SoS through judicial review, arguing inter alia that non-disclosure had been unfair. Bean LJ, giving the main judgement for the Divisional Court in R (on the application of Cunliffe) v SoS for Justice [2016] EWHC 984 (Admin, could not understand why it is thought appropriate to invite the submission of an updated victim personal statement (VPS) when a judge is being asked to consider a review of a minimum term on the grounds that the detainee has made exceptional progress in prison. The judge is not being asked to express a view about the correctness of the original sentence, nor on the degree of risk which the detainee would present if released.
He concluded that if such a statement is to be considered, fundamental natural justice requires disclosure to the applicant, save in ‘wholly exceptional circumstances, such as where disclosure of the information would imperil the safety of the victim’s family or jeopardise national security’. In normal circumstances, if the victim is unwilling to permit disclosure, the statement should not be considered. Despite Bean LJ’s doubt whether a VPS has any place in the review exercise, formal exclusion of such statements would fly in the face of victim-minded justice and since Cunliffe HMPPS guidance currently states, The views of the victim’s family may be sought but can only be relevant in so far as they inform an assessment of the seriousness of the offence. These factors will normally have been taken into account at the time of sentence.
Concluding Overview
It will be apparent that HMP detention, notwithstanding its terminological origins as a protective social defence measure and its more recent parity with discretionary life sentences for the purposes of pre-release review when the current system of independent determinative scrutiny by the Parole Board was being established, has been identified in the main as a junior version of mandatory life for murder. 18 It has, thus, been subject to the identification of a minimum penal term required for the purposes of punishment, taking account of the seriousness and gravity of the offence (CJA 2003 s.269(3)(a)).
Two main concessions to youth currently apply. A decidedly arbitrary, one-size-fits-all approach specifies a common ‘starting point’ of 12 years for the purposes of tariff determination, irrespective of whether the murder would have attracted a whole life order or 15 years for an adult perpetrator, with unfettered upwards or downwards range, taking account of the aggravating and mitigating factors set out in Schedule 21, extending to at least 25 years (as in Cornick, a decision strongly suggesting some element of denunciation, before credit for plea), thus determining that a detainee is ineligible for release until mid-life. Does this fit well with the new definitive guideline on sentencing children and young persons (Sentencing Council, 2017)? As Harris (2017) has observed, this ‘requires a more thoughtful and considered approach which, while starting with the seriousness of the offence, places the emphasis on individualisation and a closer examination of culpability’.
Second, in a conceptually questionable extra-statutory process intended to square with the need to have regard to detainees’ welfare, the minimum term has been deemed ‘provisional’ and subject to (occasional, not ‘continuing’) review, applying an exercise in secondary re-sentencing based almost exclusively on post-sentence progress, although not (as Bean LJ pointed out in Cunliffe) on continuing level of risk. The sampling exercise conducted for this Commentary suggests considerable variation in the reviewing judges’ extent of scrutiny and analysis and in the quality and depth of the reports made available for review. In instances where an external expert had been instructed on the detainee’s behalf, her or his opinion tended to carry considerable weight.
The nature of HMP detention has been subject of judicial attention in both domestic judgements and the European Court at Strasbourg, notably as regards the sentence’s compatibility with the ECHR Articles 3 (prohibition on torture and inhuman or degrading treatment or punishment) and 5 (right to liberty save where subject to lawful deprivation) and with other international Rules and Conventions. In V. v United Kingdom (1999, see above), the Strasbourg Court did not consider that ‘the punitive element inherent in the tariff approach itself gives rise to a breach’ of Article 3 and/or of Article 5, a view confirmed in R v Parchment and Others [2003] EWCA Crim 2428.
A further bid has been pursued in R. v Grant-Murray and Another and R. v McGill and Others [2017] EWCA Crim 1228 on the basis that the ECHR is a living instrument and that it was time to revisit the decision in V. in light of our developing appreciation of the special principles that should apply in youth justice, informed by current knowledge of adolescent brain development. In particular, it was argued that the denunciatory element of the mandatory life sentence for adults does not apply to children, and that the imposition of a life sentence for childhood conduct could not be justified without a specific assessment as to future dangerousness.
The facts in brief in McGill were that the three boys, one aged 14 years and two aged 13 years, were associated with a youthful street gang and participated in pursuing a member of a rival gang who sustained a fatal stab wound, being convicted on the basis of joint enterprise. Among the points raised on appeal (including an unsuccessful claim that they had been unable to participate properly in the trial and, thus had been denied a fair trial), it was argued that in the absence of evidence that any of them would continue to present a significant danger to the public after the conclusion of his or her minimum term, lifelong exposure to continued detention and the liability to recall to prison could not be justified.
The Court of Appeal was unimpressed, confirming that there was no basis on which it could be said that the sentences imposed were in breach of Articles 3 or 5. Giving judgement Thomas CJ stated, The argument that the sentencing of juveniles should be based on individualised assessments ignored that this is precisely what happens under the sentencing regime for detention during Her Majesty’s pleasure. When the sentenced is passed, the minimum term is fixed on the basis of a detailed consideration of the circumstances of the offence and the offender. When [continuing detention] is reviewed at the end of the minimum term and when the licence conditions are fixed, the individual circumstances of the offender are again considered and the decision made on that basis. The only part of the regime that is not adjustable to the circumstances of the individual is the inability to curtail the life-long nature of two of the licence conditions [requirements to be ‘well behaved’ and not to commit a further criminal offence].
On the specific point of risk and dangerousness, the Appeal Court opted to resolve this by referring to the context of gang violence in which the murder was committed. In the Court’s view, it was clear that each of those convicted had participated in the fatal attack … knowing of the presence of the weapons used to kill (the victim). ‘This is therefore a case where it can properly be inferred that each of the applicants at the time of their conviction posed a significant risk of committing serious violence’. 19 It may, thus, be suggested that by not dealing directly with the issue, in principle, of whether HMP detention should be justifiable only where the young defendant poses a more than notional risk of serious harm the decision in McGill leaves the door open for the point to be pursued in a further bid to challenge its mandatory nature, either in the Supreme Court or back at Strasbourg.
Although it is to be anticipated that any reform that reins back on life sentencing for murder will attract media and public hostility, it is right, in principle, to pursue a more nuanced, less homogeneous approach to homicide, placing risk and public protection centre stage and adopting a needs-led, developmental approach, placing children who commit murder on a par with those convicted of other forms of grave crime (as recommended in UN, 2016). Sentencing might then adopt a form akin to the ‘youth protection order’ proposed in Stone (2013).
Footnotes
Funding
The author(s) received no financial support for the research, authorship and/or publication of this article.