The mandatory life sentence for murder: An argument for judicial discretion in England

Research Design

This article draws upon data obtained as part of a larger research project examining the comparative effects of homicide law reform in the English, New South Wales and Victorian criminal justice systems. Throughout 2010 in-depth interviews were conducted with 81 members of the three jurisdictions examined. ² A key theme that emerged from the interviews concerned the relationship between any exercise of homicide law reform and current sentencing practices for murder and manslaughter, most pertinent to which were English respondents evaluations of the continued imposition of a mandatory life sentence for murder.

The English interviews, which form the basis of this article, comprised 29 interviews conducted with members of the English judiciary (n = 6), current practicing criminal barristers (n = 20) and policy stakeholders involved in the Law Commission’s 2006 review of the partial defences to murder (n = 3). These interviews were conducted predominately in London; however, a smaller sample of interviews was also carried out in Birmingham, Coventry, Kingston upon Hull, Leeds, Leicester, Liverpool and Manchester. Participants were representative of a range of experience and levels of seniority; however, all participants did have at least 24 months experience in the criminal courts and, with the exception of the policy stakeholders interviewed, all participants had been involved – in the role of judge, prosecutor or defence counsel – in at least one homicide trial in the past 10 years. The average duration of the interviews was 50 minutes. All interviews were audio-recorded and later transcribed in full before being analysed thematically using the NVivo qualitative analysis software.

In-depth interviews were used because they allowed for the initial identification of key themes prior to the interviews but also permitted the use of open-ended questions throughout the interviews. As such, the interviews provided a detailed insight into the operation of sentencing in the English courts from those charged with the daily implementation of homicide law. The value of interviews conducted with legal stakeholders, particularly members of the judiciary, has been recognized by Ashworth (1995: 263), who reflected that:

Research into why judges and magistrates do what they do has long been advocated as a prerequisite of the successful development of sentencing policy, but sentencers in many countries seem to resist research . . . the social importance of sentencing is a powerful argument in favour of careful research. More ought to be known about the motivation of judges and magistrates. Such knowledge would assist in the formation of sentencing policy.

Additionally, in contrast to public consultation processes, this research ensured respondents full confidentiality and, subsequently, was able to access a broader and more senior sample of legal stakeholders than has traditionally contributed to law reform discussions. To ensure respondent confidentiality, all participants are referred to by pseudonyms throughout this article. Pseudonyms have been assigned according to the professional role of the respondent, for example UKJudgeA, UKCounselB, UKPolicyC. Legal counsel respondents have been categorized without specification of whether they were a prosecution or defence representative, as all counsel respondents had recent experience prosecuting and defending in homicide trials.

Mandatory Life Sentencing in the English Courts

Sentencing for murder in the English criminal justice system is a unique exercise. In contrast to other criminal offences, there is a legislated mandatory life sentence for all offenders convicted of murder (Ashworth and Mitchell, 2000). Established in 1965, the mandatory life sentence is legislated under Section 1(1) of the Murder (Abolition of the Death Penalty) Act 1965, which mandates that all offenders over the age of 21 years convicted of murder must be sentenced to life imprisonment. ³

In addition to the mandatory maximum penalty of life, according to Section 269 of the Criminal Justice Act 2003, the judge must also determine a minimum term of imprisonment that the defendant must serve before becoming eligible to be released on licence. In determining this minimum term the judge must sentence in accordance with the minimum starting points for murder, as set out in Schedule 21 of the Criminal Justice Act 2003. Specific to murder, Schedule 21 prescribes four minimum starting points – 15 years, ⁴ 25 years, ⁵ 30 years ⁶ and a life order. ⁷ Additionally, the schedule also details aggravating and mitigating factors that should be considered by the judge when deciding upon the minimum term of imprisonment. Importantly, the determination of a minimum term of imprisonment means that, despite the mandatory life sentence, in the majority of cases sentenced the offender does not serve a life term in prison. Research by Mitchell and Roberts (2012) shows that between 2000 and 2009 the average length of time an offender convicted of murder spent in prison before being released on licence was 15.5 years. However, despite this, over the past decade the continued implementation of a mandatory life sentence for murder in England has animated significant debate amongst criminologists and legal scholars (Cotton, 2008; Pannick and Cooper, 2004; Mitchell and Roberts, 2012; Morris and Blom-Cooper, 2000; Roberts, 2002, 2003).

Warner (2007: 323) provides a broad definition of mandatory sentences as ‘a sentence where the sentencer has only one option. The sentence is fixed’. As such, by their very nature, mandatory sentencing policies decrease the discretionary role of members of the judiciary, whilst heightening parliamentary control over the sentencing process. In doing so, research has observed that mandatory sentencing schemes also decrease the likelihood that an offender will plead guilty to an offence carrying a mandatory penalty, exacerbating resource and efficiency pressures on the criminal justice system (Ashworth, 2009; Tonry, 1996). Despite this, the implementation of such policies has a long history in common law jurisdictions and includes the implementation of three strike laws, mandatory custodial sentences, mandatory maximum and mandatory minimum penalties (Mackenzie and Stobbs, 2010; Tonry, 2001, 2009; Warner, 2007).

These policies are often implemented by governments with reference to the importance of achieving consistency in sentencing and ensuring that the sentencing principles of general deterrence, punishment and community protection are upheld (Ashworth, 2009; Crutcher, 20002001; Hoel and Gelb, 2008; Roberts, 2003; Roche, 1999; Sheehy, 2001a; Terblanche and Mackenzie, 2008; Warner, 2007). In explaining the deterrence justification for mandatory sentencing policies, Hoel and Gelb (2008: 13, emphasis in original) outline that:

Mandatory sentencing is said to provide an extra level of deterrence by ensuring that the cost of illegal conduct outweighs the benefits, in terms of both the severity of the sanction and the certainty that the sanction will be imposed consistently where there is a successful prosecution.

Roberts (2003: 488) also explains that advocates for mandatory sentencing laws often argue that, to deter future offenders, sentencing must be ‘certain, swift and severe’.

Increasingly, however, research has noted that, in practice, mandatory sentencing policies achieve few of the goals for which they are implemented (Brown, 2001; Hoel and Gelb, 2008; Morgan, 1999; Pannick and Cooper, 2004; Roberts, 2003; Sheehy, 2001a; Tonry, 1992, 1996, 2009; Wood, 1993). In highlighting why these policies do not achieve consistency or deterrence, Hoel and Gelb (2008: 13–14) have argued that:

A judge may be better able to arrive at consistent sanctions from case to case, by reference to the individual circumstances of the cases, than parliament, which is unable to prescribe the myriad circumstances surrounding offences . . . It would appear from research to date that making a penalty mandatory rather than discretionary will be unlikely to increase its deterrent value.

Furthermore, and in specific relation to the goal of deterrence, Stern (1991) has argued that most murderers ‘do not normally deliberate sufficiently rationally’ and as such the deterrent value of mandatory sentencing policies is ‘unconvincing’. Critiques of mandatory sentencing policies have also focused upon the significant – and often discriminatory – impact that such policies have upon indigenous communities, juvenile offenders, battered women and mentally ill offenders (Chartrand, 2001; Mackenzie and Stobbs, 2010; Morgan, 2002; Sheehy 2001b; Warner, 2007).

Beyond specific offender populations, sentencing scholarship has often recognized the individual injustices that can occur under a mandatory sentencing scheme (Ashworth, 2009; Tonry, 1996). As noted by Tonry (1992: 266) ‘such laws sometimes result in imposition of penalties in individual cases that everyone believes to be unjustly severe’. A key example of this within the English context is the life sentence initially imposed upon Tony Martin in April 2000 for the defensive murder of 16-year-old burglar, Fred Baras. ⁸ Martin’s trial and subsequent sentencing received significant media attention and generated public discussion surrounding the viability of the mandatory life sentence and the structure of punishment for murder. As described by one commentator at the time:

Tony Martin should never have been sentenced to life imprisonment . . . On the spectrum of heinous murders it places Martin at the same point as the Yorkshire Ripper, which is plainly unacceptable. All murderers do not weigh the same in the scales of human wickedness, yet we discover that they are equal before the law . . . the weakness of the mandatory life sentence became clearer, precisely for the reason that it fails to distinguish between the Ripper and the farmer. (Young, 2000)

Whilst, in October 2001, the Court of Appeal reduced Martin’s murder conviction to manslaughter on the grounds of diminished responsibility and reduced his life sentence to five years, by this point the case had already demonstrated the significant level of public disquiet at the perceived injustices that can arise from its [the mandatory life sentence] inflexibility’ (Morris and Blom-Cooper, 2000: 9).

The Martin case also illustrates why research has often questioned the viability of mandatory sentencing policies given their inability to adequately cater for the wide range of circumstances within which the offence of murder is committed (McDonagh, 2008; Pannick and Cooper, 2004; Tonry, 1992). As argued by Potas (1989: 4), ‘there is now sufficient evidence to argue that it is wrong, as a matter of justice and of policy, to impose the same punishment on all murderers’. The range of culpabilities which can be included within the offence of murder has been recognized by Ashworth and Mitchell (2000: 5) who commented that:

The category of murder still includes cases which lie a considerable distance apart in terms of heinousness – one might contrast a deliberate contract killing with a killing in a pub brawl in which a chair or ashtray is used as an impromptu weapon on the victim’s head.

The inability of a mandated punishment for murder to cover such a wide range of culpabilities has often led prosecutors to accept plea bargains to lesser offences that do not carry a mandatory penalty (Tonry, 1992). As Tonry (1992: 252) describes, prosecutors will often take ‘steps to avoid what they consider unduly harsh, and therefore unjust, sentences in individual cases’.

Such debates surrounding the validity of mandatory sentencing policies – and specifically the mandatory life sentence for murder – have led to what Warner (2007: 340) describes as ‘a basic disagreement’ between those in favour of and those opposing such a policy, where ‘its opponents argue that it exacerbates inconsistency and inequality by denying flexibility. Its advocates argue that it creates consistency by reducing discretion and avoiding unduly lenient (or harsh) sentences’. Importantly, the apparent disjunct between motivations for the implementation of mandatory sentencing policies and research perceptions of their effects in practice provides a timely platform from which to consider the perceptions of those operating within the criminal justice system and, specifically, their evaluations of the continued need for a mandatory life sentence for murder in the English context.

Reflections on the Mandatory Life Sentence for Murder

I think there has been a reluctance to grapple with one issue and that’s been the mandatory life sentence. (UKCounselD)

By drawing from interviews conducted with legal practitioners this study provides a valuable contribution to prior research that has examined both the strengths and weaknesses of this sentencing policy. It contributes a unique insight into the opinions of senior English legal practitioners on the mandatory life sentence and the viability of its continued role in sentencing for murder. The interview data revealed a dominant respondent view that there is a need for the abolition of the mandatory life sentence for murder alongside contrasting views surrounding the role of public confidence in debates concerning the mandatory life sentence and the influential role of political motivations.

A Politicized Law: The Mandatory Life Sentence in England

We are never going to persuade any political party to adopt anything other than the mandatory life sentence for murder. (UKJudgeC)

Overwhelmingly, respondents interviewed believed that the government’s unwillingness to consider abolishing the mandatory life sentence for murder could be linked to a political desire to implement only law and order policies that carry public favour by promoting a punitive, tough-on-crime approach to criminal justice. The increasing dominance of law and order ideals and political influences in the formulation of crime and justice policy is well established throughout research over the past two decades (Garland, 2001; Hogg and Brown, 1998; MacKenzie, 2005; Pratt and Clark, 2005), and is particularly evident in the implementation of policies which favour tougher sentencing practices such as mandatory sentencing schemes, three strikes laws, indeterminate sentences, zero tolerance schemes and increased maximum penalties (Brown, 2002; Gelb, 2008; Loader, 2009; Palmer, 2005; Pratt and Clark, 2005). As Garland (2001: 13) describes, crime policy has become a significant feature of ‘electoral competition’ where policies are now ‘constructed in ways that appear to value political advantage and public opinion over the views of experts and the evidence of research’.

Respondents often described a frustration that, despite a dominant view amongst legal practitioners that the mandatory life sentence for murder is no longer in the best interests of justice, the political landscape has prevented change from occurring. This dominant perception is captured in the comments of one counsel respondent, who believed that ‘the only justification for it has long since been shown to be political’ (UKCounselS). In agreement, a judicial respondent commented that, ‘I know it’s politically not acceptable and no political party is going to abolish the mandatory life sentence for murder . . . it is out of bounds whatever other changes to the law they will consider but that one is non-negotiable’ (UKJudgeC). In further agreement, a counsel respondent characterized it as ‘a political issue. It’s totally political. There hasn’t been a government since they abolished the death penalty that is willing to tackle that one. It’s considered a no-no because they think this country would go mad’ (UKCounselD). In providing an explanation for these perceptions, a policy respondent commented:

In a way it has become a symbol that governments are taking crime seriously . . . It would be taken by law enforcement authorities and the public more generally that the government is taking a weak on crime approach, it’s a symbolic thing . . . and until that symbolism has disappeared or faded away then I think the sentence will remain as it is. (UKPolicyA)

Mirroring the view of the above respondents, research suggests that politicians typically utilize mandatory sentencing policies to increase favourability in the lead-up to elections (Roberts, 2003; Tonry, 1996, 2009). As described by Morgan (1999: 279), ‘the symbolic power of mandatories is such that they help politicians win elections’. In agreement, Tonry (1996: 160) explains:

Put positively, elected officials want to reassure the public generally that their fears have been noted and that the causes of their fears have been acted upon. Put negatively, officials want to curry public favour and electoral support by pandering, by making promises that the law can at best imperfectly and incompletely deliver. However, their motives are portrayed, for many legislators, their primary purpose has been achieved when their vote is cast. They have been seen to be tough on crime.

The influence of political motivations in the implementation of mandatory sentencing policies is particularly problematic given the previously overviewed scholarship that argues that mandatory schemes achieve few of the tough-on-crime goals for which they are implemented (Brown, 2001; Hoel and Gelb, 2008; Pannick and Cooper, 2004; Roberts, 2003; Stern, 1991; Tonry, 1992, 1996, 2009; Wood, 1993).

Whilst it is recognized that governments can – and do – play a legitimate role in the development of sentencing policy, respondents consistently expressed a sense of resignation at the inability of the current, as well as previous, governments to consider abolishing the mandatory life sentence. This was evident throughout interviews across all samples and is captured in the views of judicial respondents, who commented that, ‘in the present political circumstances it hardly seems worth debating’ (UKJudgeA) and that, ‘I would welcome a reform of sentencing; whether political reality is going to permit that is another matter’ (UKJudgeF). Policy respondents also acknowledged that discussions surrounding abolition are ‘probably a waste of time because senior politicians, like Ministers and above, won’t go down that line’ (UKPolicyB) and that ‘there is no current intention to change the mandatory sentence, not in the foreseeable future’ (UKPolicyA). In further agreement, a legal counsel respondent explained that the ‘mandatory life sentence for murder is a political hot potato. No one wants to go with it’ (UKCounselD). When considered alongside earlier critiques of the mandatory life sentence, these respondent views illustrate a problematic disjuncture between the needs of the justice system and the political reality. Additionally, this analysis lends weight to Garland’s (2001: 13) assertion that, in the current climate of social change, ‘the dominant voice of crime policy is no longer the expert or even the practitioner but that of the long-suffered, ill served people – especially of “the victim” and the fearful, anxious members of the public’.

Achieving Discretion: Options for Abolishing the Mandatory Life Sentence

But if you asked me what the single, most important reform of the murder laws could be, I would say to do away with the mandatory sentence. (UKCounselP)

Throughout the interviews, evaluations of the mandatory life sentence for murder often gave rise to respondent suggestions as to how sentencing policy for murder in England could be reformed to better respond to the situations within which the offence of murder is committed. Central to these discussions were respondent’s proposals for replacing the mandatory life sentence for murder with a discretionary sentencing model similar to that currently implemented in comparable jurisdictions, such as the Victorian criminal justice system in Australia. ⁹

Interview respondents predominantly considered that abolition of the mandatory life sentence for murder could arguably be achieved via two different avenues. First, respondents expressed strong support for the government adopting the recommendations made by the Law Commission (2005, 2006) following its review of the law of homicide in England and Wales; and, second, respondents suggested that the government could implement a system allowing for greater judicial discretion in sentencing through increased use of guideline judgements from the Sentencing Council. In discussing these two approaches to reform, respondents also drew upon their experiences of the higher level of discretion currently afforded to English judges in sentencing for manslaughter as well as their general confidence in the senior members of the judiciary who sentence in homicide cases. Importantly, respondents clarified that, in extreme and heinous murder cases, regardless of the abolition of the mandatory life sentence, judges would still possess the discretion to impose a maximum life sentence and, where necessary, a minimum life order also.

In 2006, alongside a host of other recommendations for reforming the law of homicide, the Law Commission (2005, 2006) recommended the creation of varying degrees of murder, similar to that currently utilized throughout American criminal justice systems. The Commission proposed that the offence of murder should be divided into two categories: first and second-degree murder. The mandatory life sentence would only apply to intentional killings that fit within first-degree murder. ¹⁰ Second-degree murder on the other hand would be subjected to a discretionary maximum life sentence. However, in response to these recommendations the government announced that it was ‘committed to retaining the mandatory life sentence’ for murder (MOJ, 2007). This unwillingness of the government to adopt the Law Commission’s recommendation can be understood as a common phenomena of law and order climates, where Garland (1996: 462) has noted that, because of the implementation of populist law and order policies ‘there is now a recurring gap between research-based policy advice and the political action which ensues’.

Whilst the adoption of this recommendation would not signify the complete removal of the mandatory life sentence for murder, respondents did believe that it would be a welcome step forward in minimizing its application. As commented by one judicial respondent, ‘I find that [the Law Commission recommendations] are quite attractive and I think it would better reflect the straightforward justice of the case’ (UKJudgeF). In agreement, counsel respondents described the recommendations as ‘a good step in the right direction’ (UKCounselL) and a ‘superior’ model (UKCounselG). Importantly, because it does not propose the complete abolition of the mandatory sentence for murder, within the current law and order climate this option may be a preferable model of reform for politicians unwilling to consider the complete abolition of the mandated life sentence.

Alternatively, in abolishing the mandatory life sentence whilst keeping the current structure of murder, respondents proposed that the government could look to implement a system allowing for greater judicial discretion in sentencing alongside the formulation of further guideline judgements by the Sentencing Council. The use of sentencing councils to provide the courts with guidelines has been established within England as well as in other comparable jurisdictions including the United States and Australia (Freiberg and Gelb, 2008; Roberts, 2011). Respondents believed that the increased use of guideline judgements would arguably provide a checkpoint for judges when applying their own discretion and would require that judges justify through their judgement any decisions that contrasted with the existing guidelines. ¹¹ This approach was proposed by several judicial respondents, one of whom commented:

If there are Sentencing Council recommended sentences they’re [judges] required to say why they are departing from the range if they are departing from the range, which is very helpful because it means that judges have applied their mind and therefore there is more transparency in the decision-making process. (UKJudgeB)

In agreement a counsel respondent commented, ‘I think [the] Sentencing Council is a great body, I am a big believer in that’ (UKCounselR). In mirroring these views, Mitchell and Roberts (2012: 154) recently argued that, if the mandatory life sentence were abolished, ‘courts should not be left alone to develop a jurisprudence around the use of alternate sentencing options’ and that, as such, ‘a guideline would be needed to assist courts in determining which sentencing option was appropriate, as well as the duration of the custodial term in the event that a definite term was imposed’.

In addition to advocating for the increased use of guideline judgements, respondents often supported their call for greater discretion in sentencing for murder with reference to current sentencing practices for manslaughter. At present, sentencing practices in England for manslaughter allow for wider judicial discretion than that permitted in sentencing for murder given that there is no mandatory sentence and no prescribed minimum starting point. Thus this research questioned whether respondents believed that similar discretion could be afforded in the sentencing of offenders convicted of murder. In response, one judicial respondent commented, ‘the great thing about manslaughter sentences is that they are entirely within the discretion of the judge and they respond to public views’ (UKJudgeB). Another judicial respondent reflected that sentencing for manslaughter, ‘does work. I’m all in favour of trusting judges’ (UKJudgeF). Counsel respondents also considered that the current discretionary sentencing for manslaughter could be adopted for murder, with one respondent commenting, ‘having that discretion is a good thing and you should be able to have the same discretion for murder as manslaughter’ (UKCounselL).

As such, regardless of their favoured model for reforming the mandatory life sentence, respondents overwhelmingly expressed confidence that members of the English judiciary should, and could, be given a higher level of discretion in sentencing without sacrificing ideals of consistency and proportionality. This was particularly interesting given that a key assumption of Garland’s (2001: 163) ‘crime complex’ refers to an assumed view that the criminal justice state is ‘inadequate or ineffective’. Whilst it is not challenged that this may be the dominant perception amongst members of the public – and research has certainly evidenced that view within a law and order climate (Casey and Mohr, 2005; Garland, 1996; Pratt and Clark, 2005) – the interviews revealed that perceptions of the inadequacy or ineffectiveness of members of the justice system were not apparent amongst the majority of legal respondents interviewed. The confidence expressed by respondents interviewed is captured in the comments made by one counsel respondent:

The sort of judges that are dealing with a murder case are so experienced. He has a lifetime of experience and he knows the right tariff, he knows what the offence deserves and I think to try and straightjacket the judge is wrong because you cannot cater for every situation . . . I just think you should have discretion. You’ve got to trust your judge and I don’t think they get it wrong. (UKCounselL)

In agreement, another counsel respondent also noted that ‘of course the judges that are trying murders are vastly experienced’ (UKCounselM).

Importantly, in arguing for greater judicial discretion, one counsel respondent highlighted that, even without the mandatory life sentence there would still be the necessary checks in place to ensure that sentencing for murder maintains consistency and proportionality:

You should have freedom to properly impose the right sentence in the case. There is the Court of Appeal at the end of the day: it’s not final, you’ve got somebody who can review it and you’ve got so many hundreds of years of experience combined that you can bring to bear in finding out if it’s the right sentence or not. So I think that you shouldn’t try to impose limits. (UKCounselL)

In agreement, another respondent also highlighted the sufficiency of current structures to ensure consistency without the use of restrictive and formulaic sentencing legislation:

I certainly accept that there needs to be consistency, that’s the point of having a lot of training and a lot of guidelines from the Court of Appeal to help judges achieve consistency. The Judicial Studies Board put in quite a lot of effort in training judges on sentencing issues so there is quite a high degree of consistency, but there has been a huge interference with the level of discretion in sentencing – in particular in homicide cases. (UKCounselD)

Judicial respondents also recognized the important role of the Court of Appeal and guideline judgements, in ensuring consistency in sentencing. As explained by one judicial respondent, ‘Obviously if the public start voicing opposition to the level of sentences, we would hear about it and if it is deemed appropriate the Court of Appeal would lay down new guidelines’ (UKJudgeB). These opinions illustrate a dominant respondent view that, even without the mandatory life sentence for murder there are already necessary structures in place to ensure that the principles of sentencing continue to be upheld through a discretionary sentencing system.

Conclusion

Whilst this research acknowledges that particularly heinous forms of murder do require a sentence of life imprisonment that serves to protect the community and denounce the crime committed, an analysis of interviews conducted with 29 members of the English criminal justice system reveals a dominant perception that this should not apply to all cases of murder. Specifically, the analysis reveals that, despite political support for the continued imposition of a mandatory life sentence, those charged with the daily operation of the law of homicide predominantly advocate for a discretionary model of sentencing. One which, it is argued, would be better able to respond to the range of circumstances within which the crime of murder is committed.

In offering a unique insight into the opinions of legal practitioners, this article highlights the significant disjuncture between political desires and the needs of legal practitioners as well as the possible reform avenues through which abolition of the mandatory life sentence could be achieved. In doing so, it acknowledges the often impeding role of political motivations in achieving change in the criminal justice system and as such notes that, in achieving abolition of the mandatory life sentence for murder in the English system, the first impediment may be overcoming a law and order climate that has come to privilege punitiveness and populist crime policies over the achievement of justice in an individual case.