The most serious crimes

As a result of these crucial decisions Parliament decided to amend the law and did so by implementing the Criminal Justice Act 2003, which sets out guidelines for how long murderers in particular should spend in prison before being considered for parole and stated that it was for the trial judge to decide the minimum tariffs for a convicted criminal. However, within the Act was included a provision which stated that the Attorney General could appeal against sentences that he considered too harsh or too lenient – a provision which is seen as a safeguard and guarantee against irrational decisions by judges.

The Act attempts to make the law consistent and help judges to determine sentencing. Within the Criminal Justice Act 20036 there were also guidelines set out which require the explicit consideration of an offender's motives in sentencing. Although the consideration of motive has long been a factor in sentencing – based on the consideration that there is a moral difference between a cold-blooded killer and a normally placid person who is provoked to deadly violence – the 2003 Act enshrines this principle in legislation.

For example, according to the Criminal Justice Act 2003, a murderer whose crimes involved sexual abuse, pre-planning or terrorism should receive a whole life tariff, whereas a single murder should receive a minimum of 15 years. The Act, therefore, is differentiating between the severities of murders in an attempt to achieve consistency of sentencing. This obviously causes a lot of controversy amongst the public. To a simplistic analysis it is not justifiable to say that the way and method of taking a life can mean punishment is more or less severe, the end result being the same.

In recent years additional pressure has been placed on the Judiciary in this respect by the inclusion in trials of Victim Impact Statements, during which (in the example of a murder trial) tearful relatives of the victim take to the stand and underline the callousness of the crime. This policy of victim support might be desirable from a sociological point of view, but it cannot make the determination of life tariffs any easier for judges, who already have to operate within a significant media spotlight.

The shift in power governing the determination of a minimum tariff from the Home Secretary to the Judiciary represented a significant revolution in tariff management. On the one hand, people may take the point of view that sentencing should be left up to politicians as they are ultimately accountable to the general public, whereas judges are not. If politicians are denied the ability to set sentences, it might be asked, how can we (the general public) have any input into the process? As such, the Lords' decision could be construed as a reduction in accountability and the legal system's connection with its democratic roots.

Conversely, British legal and legislative opinion has always sought to place some distance between the will of the people and the management of offenders, believing that sentencing is a matter of professional expertise rather than something that should be governed by the whim of the people. Defenders of this approach may point to the fact that, were public opinion to hold sway, sentences would be much longer and the cost of imprisonment much, much higher – another example of the general public demanding measures which it is generally unwilling to pay for through the taxation system.

This brings us closer to the central conflict between the populist 'life should mean life' and the judicial/professional 'sentencing should be discretionary' viewpoints. Most educated professionals working with offenders – whether they are lawyers or probation officers – tend to take the view that prison is ineffective as a deterrent and only serves as punishment insofar as it prevents criminals from inflicting further damage on society for the duration of their time in custody.

In other words, they take a fundamentally rehabilitative view of criminal justice, while also acknowledging that it is important that offenders of whatever degree are seen to be punished. The general public, on the other hand, tends to take a retributive view of punishment: life should mean life. In a recent BBC interview7, Lord Wolfe stated, that recent surveys have shown that '… many victims and members of the public see sentences handed out by the judiciary as very inadequate.

' This retributive viewpoint is also illustrated by the continuing popularity of the idea of the death penalty, a punishment which by its very nature can never be considered rehabilitative. Judges have to use their professional wisdom and ability, but they also have to remember that they are public servants who work with the consent of the people of the UK. As such, the dilemma they face in sentencing – and in deciding the length of life tariffs – is whether to let the public will override their professional judgment, or vice versa.

A situation like this clearly depends on the character and opinions of the individual judge and the extent to which he or she is inclined to cave into the perceived weight of public opinion. As such, it is something of a recipe for inconsistent decisions. Currently, all those convicted of murder are sentenced to a mandatory life sentence. The mandatory life sentence was one of the suggested replacements that led to the final abolition of the death penalty, and in itself was seen as a sufficient penalty to deter potential wrongdoers.

How any punishment given out by a civilized society could be considered 'sufficient' deterrent against murder is questionable: even the death penalty clearly did not deter those who suffered it from committing their crimes. However, the mandatory life sentence is still seen as a key deterrent to murder. Recently, however, it has been criticised for its inflexibility. Lord Chief Justice Phillips voiced his opposition to the mandatory life sentence stating it 'misleads the public'8, yet Government ministers still insist the law must remain how it is to reflect the unique seriousness of murder.

Once again, the conflict between professional expertise and professional opinion – manifested in this case in ministers' unwillingness to be seen as 'soft' on crime – can be seen to have a potential effect on judicial decision-making. Lord Phillips said that in the 'current context' mandatory life sentences were 'not a good idea' because of the wide range of offences for which they are used. For example, murder ranges over a wide area.

It includes a mercy killing by a husband who sees his wife suffering and smothers her with a pillow. He may be convicted of murder and, if he is, then it is said he is going to receive a 'life sentence'. However, in reality, the sentence he will be required to serve may be very brief indeed. Lord Phillips warned that jails would be full of 'geriatric lifers' in future because of guidelines on minimum terms set out in the Criminal Justice Act 2003. In the final analysis, there are positives and negatives to mandatory life sentencing.

People who think mandatory sentencing does work believe it reduces crime and does provide uniformity in sentencing, where potential criminals are certain of their sentence if they are caught. Opponents of mandatory life sentencing might argue that the punishment should fit the crime: as there are different degrees of viciousness and malice involved in individual rapes and murders, so there should be a flexibility of punishment that allows the judge to tailor the sentence exactly to the specific offence.

A further argument states that an offender who knows he is committing a crime that attracts an automatic life sentence might well think that he might as well be hanged for a sheep as a goat, and commit two or three rapes or two or three murders rather than just one. A public policy of more flexible sentencing sends a message to the offender that the more serious his crime, the more extreme the punishment he will suffer. Additionally, in assessing life sentencing under the current UK law and pondering the question of whether life should mean life, it's necessary to understand the constraints in which the courts must operate.

The recent increase in criminals facing a life sentence is in itself having an effect on sentencing: not only does it mean over crowded prisons and a sap on taxpayers' money (leading to pressure on judges to impose lighter sentences). It is also related to pressure, on cost grounds, for the rapid disposal of each case with the possibility corners may be cut and the quality of decisions may deteriorate. A major difficulty of determining the effectiveness or desirability of life sentences is that the crimes with which life sentencing are associated are often highly emotive – murders, rapes, acts of terrorism and so on.

Politicians and the public feel they have a right to 'get involved' in cases such as these to a greater extent than they do with lesser offences, although there is little logical reason why that should be the case: a crime is a crime, and although different crimes are differentiated by their degree the courts handle them all according to similar procedures. However, because the most serious crimes are by their nature the most reported, it is only on the basis of the handling of serious offenders that the public forms its level of confidence in the Judiciary.

It might be argued, therefore, that as public opinion demands tough sentencing, tough sentences should be delivered to retain public confidence in the criminal justice system. On the other hand, we must define the difference between laws made by the people and laws made by the mob; the politicians who govern our criminal justice system are not only democratically accountable – they are vulnerable to shifting tides in public opinion, which, by its nature, is rarely thought through in a careful way. Neither should we forget the role of prisons and the necessity that they continue to function in an efficient, humane and cost-effective manner.

Prisons are accepted to be places for rehabilitation as well as punishment, institutions that mould a person and teach him to be beneficial to society as opposed to a threat to it. If life were truly to mean life then prison would simply become a dumping ground for lost souls – a convenient dustbin for those offenders who exist in the limbo between society's reluctance to exact the death penalty and its equal reluctance to grant the possibility of rehabilitation and redemption to individuals who are guilty of the most serious crimes.