R v Marklew and Lambert (Discretionary Life Sentence)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,MR JUSTICE THOMAS |
| Judgment Date | 06 April 1998 |
| Judgment citation (vLex) | [1998] EWCA Crim J0406-4 |
| Docket Number | No. 97/6527/X4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 06 April 1998 |
[1998] EWCA Crim J0406-4
The Lord Chief Justice of England
(Lord Bingham of Cornhill)
Mr Justice Brian Smedley
and
Mr Justice Thomas
No. 97/6527/X4
97/6525/Y3
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
MR P J WALMSLEY appeared on behalf of THE APPLICANT MARKLEW
MR J THACKRAY appeared on behalf of THE APPLICANT LAMBERT
Monday 6 April 1998
Mr Justice Thomas will give the judgment of the court.
There are before the Court two renewed applications for leave to appeal following the refusal of leave by the single Judge. They both concern applicants under the age of 18 who pleaded guilty to offences of arson and were sentenced to detention for life under the provisions of s. 53(2) of the Children and Young Persons Act 1933 (as amended).
In each case it is not in issue that it was appropriate for the judge to pass discretionary life sentences, but each applicant seeks leave to appeal against the length of the period specified under s. 34 of the Criminal Justice Act 1991. We are much indebted to Mr Walmsley who has appeared for Marklew and Mr Thackray who has appeared for Lambert for their assistance. Both counsel were content that if we granted leave to appeal, we should treat the hearing of the application as the hearing of the appeal as there were no further submissions that they wished to make.
The legislative provisions under which they were sentenced
Under s. 34 (1) of the Criminal Justice Act 1991 which was in force when both applicants were sentenced and remained in force until 1 October 1997, a judge was empowered when passing a discretionary sentence of life imprisonment to specify by order such part of the sentence which should be served before the discretionary life prisoner's case was referred to the Parole Board with a view to the board considering his release.
The exercise of the court's discretion in determining that specified period was governed by s. 34(2) of the Act:
"A part of a sentence so specified shall be such part as the court considers appropriate taking into account—
(a) the seriousness of the offence, or the combination of the offence and other offences associated with it; and
(b) the provisions of this section as compared with those of section 33(2) above and section 35(1) below."
Under s. 33(2) and s. 35(1) of the Act a prisoner who received a determinate long term sentence would be entitled to be released after serving two thirds of his term (s 33(2)) and might be released after serving only half his term (s 35(1)).
When these provisions entered into force, the then Lord Chief Justice issued a practice direction: Practice Direction (Crime: Life Sentences) [1993] 1 WLR 223:
"1. Section 34 of the Criminal Justice Act 1991 empowers a judge when passing a sentence of life imprisonment - where such a sentence is not fixed by law - to specify by order such part of the sentence ("the relevant part") as shall be served before the prisoner may require the Secretary of State to refer his case to the Parole Board.
2. Thus the discretionary life sentence falls into two parts: (a) the relevant part which consists of the period of detention imposed for punishment and deterrence, taking into account the seriousness of the offence and (b) the remaining part of the sentence during which the prisoner's detention will be governed by considerations of risk to the public.
3. The judge is not obliged by statute to make use of the provisions of section 34 when passing a discretionary life sentence. However, the judge should do so, save in the very exceptional case where the judge considers that the offence is so serious that detention for life is justified by the seriousness of the offence alone, irrespective of the risk to the public. In such a case, the judge should state this in open court when passing sentence.
4. In cases where the judge is to specify the relevant part of the sentence under section 34, the judge should permit counsel for the defendant to address the court as to the appropriate length of the relevant part. Where no relevant part is to be specified, counsel for the defendant should be permitted to address the court as to the appropriateness of this course of action.
5. In specifying the relevant part of the sentence, the judge should have regard to the specific terms of section 34 and should indicate the reasons for reaching his decision as to the length of the relevant part.
6. Whether or not the court orders that section 34 should apply, the judge shall not, following the imposition of a discretionary life sentence, make a written report to the Secretary of State through the Lord Chief Justice as has been the practice in recent years."
Following that practice direction, the procedure became well established that a judge, when imposing a discretionary life sentence, should carry out the requirements set out by the Lord Chief Justice in R v O 'Connor (1994) 15 Cr App R (S) 473 at 476:
"The exercise that the judge must perform, therefore, is to decide, first of all, what would be the determinate sentence that he would have passed in the case if the need to protect the public, and the potential danger of the offender, had not required him to impose a life sentence. Having decided what the determinate sentence should be, he then has to take into account s. 33 (2) and s. 35(1) and decide on such proportion of that determinate sentence as falls between a half and two-thirds of it."
The discretion under s. 34(2)
There are very few cases where an issue has arisen as to the principles on which the court should determine whether the specified part should be a half or two thirds or somewhere in between.
In R v Vale [1996] 1 Cr App (S) 405, the appellant, an adult, had pleaded guilty to manslaughter on the grounds of diminished responsibility and been sentenced to life imprisonment; the judge concluded that a determinate sentence would have been 15 years and he determined that the specified period should be two-thirds of that—10 years. This court concluded that the determinate sentence should have been 12 years. The court then considered what proportion should be specified under s. 34. It was submitted on the appellant's behalf that half would be appropriate as after half a sentence had been served, it was the risk to the public which primarily justified the continued custody for a long term prisoner. It was at the half way point that the issue of risk to the public was effectively put in the hands of the Parole Board. The Court concluded:
"One sees the force of that submission, but the simple fact is that the section allows a discretion to the court to fix on a period between one-half and two-thirds of the sentence and that discretion is to be exercised having regard to all the circumstances of the case.
There are undoubtedly cases, and one in particular of which we are aware is one in which my Lord, Mitchell J, was concerned, where a figure of less than two-thirds has been taken, but it must depend on the learned judge's assessment of the requirements of the case, including, as the section specifies, the seriousness of the offence. All that we propose to say is that, having considered with the greatest care the medical evidence, the learned judge's observations and the facts of this particular case, we are not persuaded that he was wrong to fix upon a period to two-thirds rather than any lesser period. Accordingly, reducing as we do the starting point from 15 to 12 years, the specified period will be reduced from 10 to eight years."
In R v Carr [1996] 1 Cr App R(S) 191, the 15 year old appellant had been sentenced to life imprisonment under s. 53(2) of the Children and Young Persons Act for causing grievous bodily harm with intent. At a further hearing, the judge decided that the appropriate determinate sentence would be one of seven and a half years and the period specified under s. 34 should be half of that—three and a half years. This court concluded:
"Had this been a case of an adult offender then in our view the period specified by the learned judge would have been absolutely right, but of course we are dealing here with a 15 year old child, and we appreciate that three-and-a-half years is a very long time in the eyes and indeed in the life of a child of that age. We think that given all the circumstances, the age in particular, and the fact that a two-year minimum period was specified as the required treatment period at the first hearing that to approach this case on the basis of a determinate sentence of seven years is to approach it in an incorrect way. In our view the appropriate determinate sentence would have been one of four years' detention, and to arrive at a specified period we take half that determinate sentence which results in a specified period of two years which was the original minimum time mentioned by the psychiatrists. Of course that does not mean, and must not be taken to mean, that at the expiration of two years this appellant will be released. It all must depend on how this young woman responds to treatment. If unhappily she does not respond within that time then treatment will have to continue. All we are saying in specifying that period is that is the period before the expiration of which parole cannot be applied for."
In R v Secretary of State for the Home Department ex p Venables [1997] 3 WLR 23, the House of Lords was concerned with the legality of the fixing of a tariff by the Home Secretary in respect of the mandatory sentence of detention during Her Majesty's pleasure passed on two juveniles for the murder of James Bulger. The issues in that appeal are...
To continue reading
Request your trial
-
R v Jabble (Pardeep Singh)
...appropriate. 15 The specified period of 20 years is another matter. It is clear from the authorities, including the recent case of R v Marklew and Lambert, Court of Appeal, 6th April 1998, so far unreported, number 976527X4 and 976525Y3, taken with the appropriate statutory provisions, that......
- R v Kelly (Edward)
-
R v Szczerba (Ian Michael)
...term than one half, which the recent authorities show should be the norm in the absence of exceptional circumstances (see R v Marklew and Lambert [1999] 1 Cr App R(S) 6 at 12, R v Adams and Harding [2000] 2 Cr App R(S) 274 and R v McQuaid [2001] EWCA Crim 2398). Indeed, Mr Fitzgerald goes f......
-
R v Barot (Dhiren)
...sentence is imposed. It follows that this factor should not influence the length of the minimum term to be served – see R v M [1999] 1 WLR 485 at 45 Terrorists who set out to murder innocent citizens are motivated by a perverted ideology. Many are unlikely to be deterred by the length of t......
-
Life Sentence for Second Serious Offence
...danger to thepublic.In respect of the period designated under s 28 of the Act, the courtapplied the procedure laid down in R v M[1999] 1 WLR 485, determin-ing that the specified term should be usually one-half of the hypotheticaldeterminate term which would have been appropriateandthat, sec......
-
Life Sentence for Second Serious Offence
...danger to thepublic.In respect of the period designated under s 28 of the Act, the courtapplied the procedure laid down in R v M[1999] 1 WLR 485, determin-ing that the specified term should be usually one-half of the hypotheticaldeterminate term which would have been appropriateandthat, sec......