R v McLoughlin R v Newell
| Jurisdiction | England & Wales |
| Judge | Lord Justice Treacy,The Lord Chief Justice of England and Wales,Mr Justice Burnett,Leveson,Treacy LJJ,Burnett J,Hallett,Lord Thomas CJ |
| Judgment Date | 18 February 2014 |
| Neutral Citation | [2014] EWCA Crim 188 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2013/05646/A7 & 2013/05317/A5 |
| Date | 18 February 2014 |
Attorney General's Reference No. 69 of 2013 Under Section 36 of the Criminal Justice Act 1988
And in an Appeal from the Crown Court
[2014] EWCA Crim 188
The Lord Chief Justice of England and Wales
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
Lord Justice Treacy
and
Mr Justice Burnett
Case No: 2013/05646/A7 & 2013/05317/A5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEAMINGTON SPA
AND IN THE MATTER OF A REFERENCE UNDER S.36 OF THE CJA 1988
Royal Courts of Justice
Strand, London, WC2A 2LL
Joe Stone QC for the Appellant
James Eadie QC and Louis Mably for the Respondent
K McCartney in attendance on the reference at the invitation of the court
Joe Stone QC and Miss C Hawley for Thomas
Lord Thomas of Cwmgiedd, CJ:
Introduction
The statutory scheme enacted by Parliament for sentencing an adult guilty of murder is set out in the Murder (Abolition of Death Penalty) Act 1965 (the 1965 Act), the Criminal Justice Act 2003 (the 2003 Act) and Crime (Sentences) Act 1997 (the 1997 Act):
i) A trial judge must, under s.1 of the 1965 Act, impose a life sentence for murder. Under s.269 of the 2003 Act, the judge must decide whether to make a minimum term of a fixed number of years or a whole life order.
ii) If a fixed minimum term order is made, the Parole Board has the power under the provisions of s.28 of the 1997 Act, commonly called the early release provisions, to direct release of the offender after the expiry of any minimum term for a fixed number of years set by the trial judge; it considers in essence the risk to the public if release is ordered. However, the Parole Board has no such power where a whole life order is made.
iii) A power of release is given under s.30 of the 1997 Act to the Secretary of State, if there are exceptional circumstances which justify release on compassionate grounds.
In the cases before the court a challenge is made to this scheme. It is advanced under Article 3 of the Convention and founded on decisions of the Strasbourg Court:
i) On 12 February 2008, the Grand Chamber of the Strasbourg Court decided in Kafkaris v Cyprus (Application no. 21906/04) that whilst a sentence of life imprisonment did not violate Article 3, there would be a violation if such a sentence was irreducible — that is to say a sentence for the duration of the life of the offender with no "possibility" or "hope" or "prospect" of release from the sentence.
ii) In R v Bieber [2009] 1 WLR 223, this court held, in the light of the decision in Kafkaris that, as the Secretary of State had a power of release under s.30 of the 1997 Act, a sentence with a whole life order was not irreducible and thus not in violation of Article 3.
iii) On 17 January 2012 the Fourth Chamber of the Strasbourg Court in Vinter v UK [2012] 55 EHHR 34 held that there was no violation of Article 3. On 9 July 2012, the Grand Chamber decided to hear the case.
iv) Prior to the hearing by the Grand Chamber, a special constitution of this court considered appeals where four of the appellants had received whole life orders and one a minimum term of 30 years. In its decision given in November 2012, R v David Oakes and others [2012] EWCA Crim 2435, [2013] 2 Cr App R (S) 22, this court concluded that whole life orders were not incompatible with Article 3 of the Convention.
v) 0n 9 July 2013, the Grand Chamber of the Strasbourg Court gave its decision in Vinter v United Kingdom. It held, for reasons we shall analyse, that there had been a violation of Article 3 in relation to the whole life orders imposed on the basis that they were not reducible.
This court was therefore specially constituted to consider, in the light of that decision, three appeals by defendants on whom a whole life order had been imposed and a reference by the Attorney General under s.36 of the CJA 1986 in a case where it was contended that the trial judge had been mistaken in his view that the decision in Vinter precluded the imposition of a whole life order.
Prior to the hearing the first of the appellants, Mark Bridger, abandoned his appeal against the whole life order imposed on him for the sadistic murder of a child. In respect of the second appellant, Matthew Thomas, it was clear that the appellant had not received a whole life order. The hearing therefore proceeded as an appeal by Newell, the third appellant, on whom a whole life order had been imposed, and a reference by the Attorney General in the case of McLoughlin where the judge, after concluding the decision in Vinter precluded the imposition of a whole life order, had imposed a minimum term of 40 years. The reference was made on the grounds that the judge had made an error of law as to his powers and that the consequent failure to make a whole life order had resulted in an unduly lenient sentence.
The development of the legislative scheme
(a) The fixing of the tariff and its reconsideration in exceptional circumstances
Although an account of the development of the life sentence for murder and its practical operation has been set out on many occasions, such as the judgment of Lord Mustill in R v Secretary of State ex p Doody [1994] AC 531 and the judgment of Lord Judge CJ in R v Oakes, it is important to summarise one aspect of that development as it assists in understanding the submissions presented to us.
On 30 November 1983 the then Home Secretary introduced a scheme that formalised the practice that had developed in the years after the introduction of the mandatory life sentence for murder (see Hansard HC Deb 30 November 1983, vol 49, cols 505–507). Under that scheme a formal distinction was drawn between the penal element of a sentence (punishment, retribution and deterrence) and the element that protected the public from risk. It initially operated on the basis that the trial judge would make a recommendation to the Home Secretary on the term required to reflect the penal element. The Home Secretary was not bound by that recommendation; he made his own determination of that period which was commonly known as the tariff period. Although the overwhelming majority of tariffs were for a determinate period, some whole life tariffs were imposed. At the conclusion of a determinate tariff period, the Parole Board was asked to review whether the offender should be released, having regard to the risk that he posed to the public. The decision on release was then made by the Home Secretary.
The position in relation to whole life tariffs was more complex.
i) On 7 December 1994 the then Home Secretary announced a policy in relation to prisoners serving a whole life tariff (Hansard HC Deb 7 December 1994, vol 251, cols. 234–235: written answer).
"In addition, I have decided that for those life sentence prisoners for whom it is decided that the requirements of retribution and deterrence can be satisfied only by their remaining in prison for the whole of their life, there will in future be an additional ministerial review when the prisoner has been in custody for 25 years. The purpose of this review will be solely to consider whether the whole life tariff should be converted to a tariff of a determinate period. The review will be confined to the considerations of retribution and deterrence. Where appropriate, further ministerial reviews will normally take place at five-yearly intervals thereafter. Existing prisoners who fall into this category and who have already served 25 years or more in custody will not be disadvantaged. Their cases will be reviewed by ministers as soon as is practicable and after any representations they may wish to make."
ii) That policy was modified by a different Home Secretary on 10 November 1997 (Hansard HC Deb 10 November 1997, vol 300, cols. 419–420: written answer):
"So far as the potential for a reduction in tariff is concerned, I shall be open to the possibility that, in exceptional circumstances, including for example exceptional progress by the prisoner whilst in custody, a review and reduction of the tariff may be appropriate. I shall have this possibility in mind when reviewing at the 25-year point the cases of prisoners given a whole life tariff and in that respect will consider issues beyond the sole criteria of retribution and deterrence described in the answer given on 7 December 1994."
iii) In a challenge by Myra Hindley to the whole life tariff imposed on her, Lord Bingham CJ held in the Divisional Court in R v Home Secretary ex p Hindley [1998] QB 751 at page 770 that whereas the narrow policy set out in 1994 was unlawful, this had been corrected by the 1997 policy which permitted the taking into account of exceptional progress whilst in prison. In the appeal to the House of Lords counsel for the Home Secretary made clear that the Home Secretary was prepared to review any whole life tariff, even in the absence of exceptional circumstances (see page 417C of [2001] 1 AC 410). Lord Steyn, when approving the legality of the Home Secretary's 1997 policy, recorded the way in which the policy had been clarified (at 417D):
"…. counsel for the Secretary of State submitted that the policy of imposing a whole life tariff merely involves the expression of the current view of the Secretary of State that the requirements of retribution and deterrence make it inappropriate ever to release such a prisoner. It does not rule out reconsideration. The Secretary of State envisages the possibility of release in the event of exceptional progress in prison;...
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