The Remains of the Day—Whole Life Sentences after Bieber
| Author | Michael Bohlander |
| DOI | 10.1350/jcla.2009.73.1.511 |
| Published date | 01 February 2009 |
| Date | 01 February 2009 |
| Subject Matter | Comment |
COMMENT
The Remains of the Day—Whole Life
Sentences after Bieber
Michael Bohlander*
Keywords Life sentence; German criminal law; ECHR, Article 3; Minis-
terial power of pardon; Incompatibility
The recent decision of the Court of Appeal in R v Bieber1has thrown the
problems of so-called ‘whole life sentences’ into sharp relief. The appel-
lant had been convicted of one count of murder, two counts of at-
tempted murder and two counts of possession of a firearm and
ammunition with intent to endanger life. In the course of a routine
police traffic patrol, he had shot, in rapid succession, three police officers
who investigated the car he was sitting in. He killed one by shooting him
through the head and severely wounded the other two. He pleaded
guilty to possession of ammunition without a certificate. On the count of
murder he was sentenced to life imprisonment with an order that the
early release provisions should not apply (‘whole life sentence’). The
trial judge gave the following reasons for the sentence that he
imposed:
Parliament has recognised that the killing of a Police Officer in the course
of his duty normally leads to the conclusion that the seriousness of the
offence is particularly high, and in determining the minimum term the
appropriate starting point is 30 years. But that is only a starting point. There
is one particular aggravating feature which is not allowed for in the fact
that you killed a Police Officer in the course of his duty, and that aggravat-
ing feature is that you did not need to shoot him through the head. You had
already disabled him and he was defenceless, you could have escaped then,
but you chose to wait and fire a second shot at point blank range. It must
be acknowledged that he might have died as a result of your first shot, but
you made certain of his death.2
I regard this aggravating feature of such significance as to lead to the
conclusion that the murder of PC Broadhurst was so grave that I must order
that the early release provisions shall not apply and you must spend the
rest of your life in prison.3
* Professor of Law, Durham Law School; e-mail: michael.bohlander@dur.ac.uk. I
would like to thank Professor Dawn L. Rothe, Old Dominion University, and
Professor Robert D Sloane, Boston University Law School, for their comments on
an earlier draft. Any errors are mine alone.
1 [2008] EWCA Crim 1601. See also Richards, ‘When All Hope Is Gone’ (2008) 154
SJ 18.
2 Under German law, a clear case of double counting because the intent to kill was
used twice, see Schäfer/Sander/van Gemmeren, Praxis der Strafzumessung, 4th edn
(CH Beck: 2008) 346, n. 197.
3 [2008] EWCA Crim 1601 at [7].
30 The Journal of Criminal Law (2009) 73 JCL 30–47
doi:1350/jcla.2009.73.1.511
Two grounds of appeal were argued. First, that the facts of this case did
not justify the imposition of a whole life order. Secondly, that a ‘whole
life order’ infringed Article 3 of the European Convention on Human
Rights; reference was made to the decision of the Grand Chamber of the
European Court of Human Rights (ECtHR) in Kafkaris v Cyprus.4The
Court of Appeal allowed the appeal and stated that the order not to
apply the early release provisions was incorrect and that a minimum
term of 37 years would be substituted.5Given this outcome, all of the
Court of Appeal’s discussion of the Article 3 issue is strictly speaking
obiter dictum. This Comment will nevertheless look at the second ground
of appeal and its consequences for the future of the law6on early release
of life prisoners in England and Wales. It will draw on the experience of
the international courts and especially on the development of German
law after the ground-breaking decision of the Federal Constitutional
Court in 1977 on the law and practice of life imprisonment.7
The argument of the Court of Appeal
The Court of Appeal did not accept that there was an incompatibility
with Article 3. Under s. 269 of the Criminal Justice Act 20038a judge is
required, either to specify a minimum period to be served before the
offender is considered for early release by the Parole Board, or to order
4 [2008] ECHR 21906/04 (12 February 2008).
5 [2008] EWCA Crim 1601 at [52]–[58].
6Bieber was confirmed by another panel of the Court of Appeal in R vBarker [2008]
EWCA Crim 2395, on 24 October 2008, and it was confirmed by the House of
Lords in Rv Wellington [2008] All ER (D) 95 (Dec).
7Amtliche Sammlung der Entscheidungen des Bundesverfassungsgerichts [Official Gazette of
the Decisions of the Federal Constitutional Court = BVerfGE] vol. 45, 187.
8‘269. Determination of minimum term in relation to mandatory life
sentence
(1) This section applies where after the commencement of this section a court
passes a life sentence in circumstances where the sentence is fixed by law.
(2) The court must, unless it makes an order under subsection (4), order that
the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 (referred to
in this Chapter as 'the early release provisions') are to apply to the offender as soon
as he has served the part of his sentence which is specified in the order.
(3) The part of his sentence is to be such as the court considers appropriate
taking into account–
(a) the seriousness of the offence, or the combination of the offence and any
one or more offences associated with it, and
(b) the effect of any direction which it would have given under section 240
(crediting periods of remand in custody) if it had sentenced him to a term of
imprisonment.
(4) If the offender was 21 or over when he committed the offence and the court
is of the opinion that, because of the seriousness of the offence, or of the
combination of the offence and one or more offences associated with it, no order
should be made under subsection (2), the court must order that the early release
provisions are not to apply to the offender.
(5) In considering under subsection (3) or (4) the seriousness of an offence (or
of the combination of an offence and one or more offences associated with it), the
court must have regard to—
(a) the general principles set out in Schedule 21, and
(b) any guidelines relating to offences in general which are relevant to the case
and are not incompatible with the provisions of Schedule 21.’
The Remains of the Day—Whole Life Sentences after Bieber
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