INTRODUCTION

ON THE ENDING of capital punishment for the crime of murder in 1965, it became the duty of the court to pass a mandatory sentence of life imprisonment on anyone found guilty of murder.

Who would have predicted that half a century later the ‘lifer’ pop­ulation would expect to receive a review of its sentence only after, on average, twice the time spent in custody, given the overall com­parative liability (even a recent reduction) in the murder rate? The speculative answer would have depended on the declared approach by bipartisan politicians spouting the phrase ‘tough on crime, and tough on the causes of crime (with the Prime Minister’s version of a peculiarly punitive penal policy). It reflected the country’s desire for punishment; an insistence on revenge to balance the traditional policy of rehabilitation.

The sentence of the court originally related solely to the loss of liberty; the decision on how long should be spent in custody was originally left to the Home Secretary, advised by the prison admin­istration, and after considering a letter sent by the judge and Lord Chief Justice with a suggestion of what the minimum period should be. After several challenges and changes to this procedure, the Criminal Justice Act of 2003 finally set out minimum periods for which the ‘starting points’ for an adult are normally 30, 25 and 15 years, depending on the gravity of the offence, which the judge determines when sentencing the offender.

Schedule 21 of the Act states, however, that if the murder is ‘so grave that the offender should spend the rest of their life in prison, a ‘whole-life order’ is the appropriate starting point’. If this is imposed, there is no period fixed for review by the Parole Board. The schedule emphasises that ‘such an order should only be speci­fied where the court considers that the seriousness of the offence is exceptionally high. Such cases include:

(a) the murder of two or more persons where each murder involves a substantial degree of premeditation, the abduction of the vic­tim, or sexual or sadistic conduct;

(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation;

(c) a murder done for the purpose of advancing a political, reli­gious or ideological cause; or

(d) a murder by an offender previously convicted of murder.

Although a prisoner might always have died in prison - and some did - before being considered worthy of release, the ‘whole-life order’ is entirely different because it forecloses the possibility of review by the Parole Board at the time of sentence. The situation is completely different from what had been the former practice. As Sir Ernest Gowers (Chairman of the Royal Commission on Capital Punishment, 1949-53) said in his book A Life for a Life? in 1968, there was then no recorded case of any lifer having been told at the time of sentencing (or later) that he would never be granted release on licence, although he might die in prison. Like the death penalty, the whole-life order is an inhumane act of revenge by society, which can be described as depriving the prisoner of the ‘right to hope’. It is rarely (if at all) a proportional punishment, because it is arbitrary; it may be measured in days or decades, according to how long the murderer has to live. It is an excessive infliction of human suffer- ing.^[104] The concept of proportionality goes to the heart of the ques­tion of whether punishment is inhuman or degrading, especially so where it is related to the length of time for which the offender is sentenced.