THE FUTURE PENALTY
What prospect is there for ridding the sentence for murder of its mandatory nature? Is there a parliamentary disposition to complete the business omitted from the abolition of capital punishment? Parliament in 1965 wanted to consign the death penalty to the museum of penal history.
It did that, and no more - sentences were left to be settled.The evidence for today’s parliamentarians to respect the views of their predecessors points this way. On 28 October 1965[119] the House of Commons debated finally the Bill on the death penalty, simply to consider the motion of its sponsor (Mr Sydney Silverman) to accept the House of Lords’ amendment. The amendment had provided for the trial judge to pass a minimum recommendation (without legal effect), which became section 1(2) of the Murder (Abolition of Death Penalty) Act 1965, a section which was little used and ultimately repealed in the Criminal Justice Act 2003. That provision - incidentally, a minimum term could not legally endorse a ‘whole-life’ order - was required under parliamentary procedure affecting the legislative powers of the two chambers.
All the speakers on that day strongly favoured the option promoted successfully by 80 votes to 78 in the Lords on 27 July 1965[120] that the sentence of life imprisonment should be discretionary. No one demurred; only Henry (later Lord) Brooke, the former Home Secretary, hesitated to join the chorus of the (later withdrawn) amendment floated expectantly by the Lord Chief Justice, Lord Parker. The Conservative spokesman on home affairs, Mr Mark Carlisle (later a Home Office Minister for Education in 1979, and who became Lord Carlisle), described an amendment of the minimum recommendation that was proposed to be inserted in the Bill as ‘a dismal compromise’ to the discretionary sentence, advanced but withdrawn by Lord Parker.
Mr Carlisle strongly favoured the sentencing judiciary treating all murderers alike at the discretion of the trial judge. Mark Carlisle’s view was seconded by Sir John Hobson QC, a former Conservative Attorney-General, Mr Reginald Paget, a Labour member known for expressing independent views, and Sir Richard Glyn, a non-lawyer Conservative member. But most notable among the speakers in the truncated chamber was Mr Peter Thornycroft, a former Conservative Chancellor of the Exchequer. He declared that the amendment to the Bill ‘had not a friend in the House except for the [Labour Home] Secretary’ (referring to Sir Frank Soskice).[121] He (Mr Thornycroft) added the reason for not voting against the preferred mandatory element; that ‘it would not be proper to lose the Bill over some muddle concerning a Lords’ amendment’. Given the lateness in the parliamentary agenda - the Bill received the Royal Assent on 4 November 1965 - and the expected, not to say overwhelming commitment to being rid of the death penalty for good, these words are unsurprising. Lord Gardiner, the Lord Chancellor and the progenitor for abolition, had himself orchestrated the legislation by, inter alia, ensuring that the Government should devote time in processing what in fact was a private members’ Bill. A mandatory life sentence for murder was the inevitable replacement for the death penalty.Is a mandatory penalty for any offence ever an acceptable part of a civilised penal philosophy? It is one thing to sentence a convicted murderer to imprisonment for life; it is altogether another matter for society to ensure a lifetime in custody to mark the severity of punishment for the crime. We do not subscribe to the biblical doctrine of ‘an eye for an eye’ - retribution must always be qualified. Locking someone up and throwing away the key, without the benefit of parole at the time of sentencing, is another matter. As a matter of humanity there are powerful arguments which suggest that there is a risk of a whole-life sentence that is predetermined at the time of sentence being inhumane; a sentence of life imprisonment with no chance of release, which is to destroy any hope of seeing freedom again, can be seen as unmitigated, revengeful punishment.
The existence of a parole system inserts the possibility of release at some stage of custody and the probability of review avoids the destruction of all hope. But the law established in 1965 with the abolition of the death penalty omitted to differentiate the sentence of life imprisonment from the time to be served as the proportionate punishment. Abolition of the death penalty was statutorily effected. The sentence of life imprisonment did no more, and left unanswered the substance of any indeterminate period of imprisonment. The provision in section 269 of the 2003 Act (especially in subsection 4, which provides for the appropriate starting point of a wholelife order, where the seriousness of the offence is exceptionally high) could not amend the whole-life sentence, since a ‘whole-life’ order could never be a minimum period. It cannot be assumed that the combination of a whole-life sentence with a whole-life order achieves an amendment of the penalty for murder which is the sentence.Penal philosophy dictates a resolution of the confusion over the penalty for murder that acknowledges the possibility of the rehabilitation of the ‘lifer’ who, on review, no longer constitutes a risk, if discharged from custody.
Earlier, Lord Bingham had indicated in the law prior to the Criminal Justice Act 2003 how the confusion should be resolved:
One can readily accept that in requiring a sentence of imprisonment for life on all those convicted of murder Parliament did not intend ‘sentence’ to mean what it said in all or even a majority of cases, but there is nothing to suggest that Parliament intended that it should never (even leaving considerations of risk aside) mean what it said.[122]
But after the legislation in 2003, doubts crept into the forensic scene. Lord Justice Laws in 2003 described the English law as the lex talionis, if there was no proportionate punishment. But some Law Lords on appeal did not agree with Lord Justice Laws that a revengeful penalty was impermissible.
To the extent that the law can exact revenge, it seems from the latest pronouncement from the Court of Appeal that it can do so, if the penal administration grants a power of release ‘in exceptional circumstances’. But the ‘highly restrictive power’ is, however, not an integral part of the sentence of the court. Its purport to determine the penalty by a whole-life fulfilment of the sentence is legally insufficient.The array of parliamentary unanimity, demonstrated in the House of Commons in 1965, deserves to be revived. Fifty years is a long enough period to cogitate over the legislative intent, particularly since Parliament has not since then taken the opportunity - indeed, it has actively refused - to reconsider its proposed stance, implicitly telegraphed by a favourable vote in the House of Lords on 6 March 2010[123] in favour of abolition of the mandatory element.
The mental condition of a prisoner at the time of his trial for murder may raise, and fail to establish evidentially, a partial defence of diminished responsibility. Nevertheless the psychiatric evidence, called by the defendant, may be sufficient to conclude that the murder was not to be dubbed one of ‘the worst of the worst’. But the diagnosis may be that the defendant is treatable in prison. The jury’s rejection of a defence plea of diminished responsibility is relevant only to the issue of proof beyond a reasonable doubt. It is not a factor that should be taken into account subsequently on questions relating to the prisoner’s mental condition at the time of the homicidal event or at trial. A subsisting mental disorder will always have a bearing on the degree of culpability for murder.
Quite apart from assessing the prisoner’s mental condition at the time of sentence for murder, the Grand Chamber in the case of Vinter and others v United Kingdom[124] on 9 July 2013 correctly observed[125] that there may arise a circumstance (such as a psychiatric disorder) or a fresh condition which becomes relevant to any review or release; and for that purpose examination should be conducted within a wholly judicial framework, rather than by the Executive, even if subject to judicial control.
It is one’s experience, admittedly impressionistic, that many of the worst homicides are committed in circumstances that disclose a culpability induced by a mental disorder. As such, it is nigh-on impossible to categorise such a murder as more or less heinous than other murders. Even if mentally disordered murderers are the most dangerous offenders from whom society needs to be protected by a long period in custody, their need for constant review is all the more necessary. ‘Worst’ is the superlative of bad or evil, itself the worst case of murders. What evidence can a trial court adduce to clarify the instant case as compared with, on the face of it, another that seems just as heinous?The Grand Chamber’s assessment[126] demonstrates persuasively that, acknowledging the scope of each country’s margin of appreciation that allows for different whole-life sentences to be effected, most Member States of the Council of Europe regard the unreviewability of the sentence of life imprisonment as grossly disproportionate treatment, and inhumane. In Chapter 11 of The Death Penalty,[127] Professors Roger Hood and Carolyn Hoyle, in considering the challenge of a suitable replacement to the death penalty for murder, conclude as follows:
Those who campaign for the humane treatment of prisoners will need to refocus their attention on creating for life-sentenced prisoners a humane prison environment, accompanied by an effective and judicious system for reviewing suitability for release that adequately protects the public while respecting the humanity of the prisoner. In our opinion, sentences of life imprisonment which preclude any possibility of parole are not only inhumane, they are unnecessary and counter-productive. They raise many of the human rights issues that have been at the heart of the attack on the death penalty itself. They too should be abolished. [128]
The public punitiveness of today has no place in the penal system of a civilised country. It too should be abolished and consigned to a museum of penal history.