Minimum sentencing for murder in England and Wales: A critical examination 10 years after the Criminal Justice Act 2003
| DOI | 10.1177/1462474515623104 |
| Author | Kate Fitz-Gibbon |
| Published date | 01 January 2016 |
| Date | 01 January 2016 |
| Subject Matter | Articles |
Punishment & Society
2016, Vol. 18(1) 47–67
!The Author(s) 2015
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DOI: 10.1177/1462474515623104
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Article
Minimum sentencing
for murder in England
and Wales: A critical
examination 10 years
after the Criminal
Justice Act 2003
Kate Fitz-Gibbon
Deakin University, Australia
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 pro-
viding 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 argu-
ably allowing for more proportionate sentences to be applied on an individual case-by-
case basis.
Keywords
judicial discretion, minimum sentencing, murder, presumptive minimum sentencing,
sentencing guidelines
Corresponding author:
Kate Fitz-Gibbon, Lecturer in Criminology, School of Humanities and Social Sciences, Faculty of Arts and
Education, Deakin University, Victoria, Australia.
Email: k.fitzgibbon@deakin.edu.au
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 under-
standing. 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, spe-
cifically, 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
48 Punishment & Society 18(1)
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