Before we consider an appropriate definition for a 'life' sentence, it is useful to consider the context within which serious offenders are sentenced in the UK today. The Judiciary, as it stands, determines the application or otherwise of life sentencing. Although there has been a trend in recent years for politicians to become involved in the setting of tariffs, it is still fundamentally a matter for individual judges to determine how long an offender should stay in prison depending on the particular merits of a case.
Life sentencing – like, indeed sentencing of any kind – can present judges with a frustrating and sometimes near-impossible task. They must juggle several often-conflicting sentencing aims in order to meet their goal. As well as considering the usual retributive and rehabilitative elements of a sentence, members of the judiciary presiding over cases in which life sentencing may be appropriate must also account for the physical and administrative implications, not to mention the cost to the public purse, of putting some one in prison.
In these terms, life sentencing can be a balancing act: although a life tariff (whether that means 'whole life' or the more usual 15-20 years) must balance two potentially conflicting public interests: the necessity of protecting the community and rehabilitating the offender must be set against the long term cost of imprisonment. The other problems the judges face when dealing with life sentencing issues are related to public perceptions.
With sentencing being a central and highly acknowledged aspect of the criminal justice system, the Judiciary often bears the brunt of public criticism for being seen to either sentence to harshly, or, more often, for sentencing too leniently. In each case a decision has to be made regardless of the media coverage. Additionally, it should be noted there are different types of standard life sentence, even before we consider whether or not life should mean a whole life tariff.
There are three types of life sentence that exist with UK law today. Firstly if the prisoner is convicted of murder, then he is known as a mandatory lifer, because a life sentence is the only sentence that a court can pass for that offence. The law that governs sentencing for murder is based on the Murder (Abolition of the Death Penalty) Act 19651. Section 1(1) of this act tells us that if the defendant is over the age of 21 at the time of the offence then he must be sentenced to life imprisonment.
Prior to 2003, the court would set a recommended tariff for the prisoner before sending it to the Home Secretary to amend as he saw fit, which in reality meant that before that date the Home Secretary was responsible to setting a mandatory lifer's tariff. If, however, the prisoner is sentenced to life for another offence such as manslaughter, rape or armed robbery then he is known as a discretionary lifer – the presiding judge has made a decision to impose a life sentence, even though he or she was at liberty not to do so.
The difference between these two categories of prisoner is import as parole and release procedures are different. Finally, the court is also obliged to pass a sentence of life for anyone convicted of a second serious offence, these people are known as automatic discretionary lifers. All life sentences within UK law are indeterminate. This means there is no fixed term, and prisoners will stay in prison until they are considered safe to release.
However there are and have been a number of lifers – such as the now-deceased Myra Hindley – who are told because of the nature and severity of their crimes they are to serve a 'whole life' tariff, meaning they will remain imprisoned until they die unless released on humanitarian grounds – usually envisaged to mean the final stages of a terminal illness as seen with the infamous London gangster Ronnie Kray.
The average time a 'lifer' spends in prison before he or she is eligible for parole is 15 years, and those who are released are subject to a 'license' for the rest of their life – meaning they can be recalled to custody for breaching the conditions of their parole without any license-breaching offence they are believed to have committed ever even coming to trial. Given that this is a significant and life-long restriction on liberty, it is a matter of debate whether a 'lifer', even though he or she has only served 15 years, can ever be considered to be fully released.
In the sense that the lifer's usual freedoms are permanently curtailed in this way, every life sentence can be considered to be 'for life' under existing UK sentencing procedures, irrespective of the amount of time actually served in custody. For mandatory lifers the courts decide the length of tariff – a responsibility that was previously down to the Home Secretary but this power was revoked in 2003 as a result of the House of Lords ruling in favour of Anthony Anderson2, a convicted killer.
The question of whether it should be the home secretary or the courts to set mandatory life tariff had been challenged under the Human Rights Act and is a hotly-debated topic: should the fate of serious offenders rest with the professional judgment of a trial judge or with the democratic will of the people, as expressed through the Home Secretary? The situation is rather different for discretionary lifers, whose tariff is always set by the trial judge.
In the Anderson and Taylor case, the plaintiff, Anderson, claimed his human rights had been breached under Article 6 (1) of the Human Rights Convention3 which states the individual's right to a fair trial, and that the Government involvement in a judicial matter was a clear breach of this fundamental right. This was because according to the Human Rights Act the trial had to be an "independent and impartial tribunal".
However this was rejected by the Court of Appeal, which stated as its reasoning that the Home Secretary's act of setting a tariff was an administrative action and not a sentencing one and therefore did not breach the defendant's right to a fair trial. However, when this case finally reached the top of the legal hierarchy and ended up at the House of Lords, it was decided that the Court of Appeal was wrong in its decision. The Lords' ruling stated that section 29 of the Criminal sentences Act 1997 was unable to function alongside the Human Rights Act; a declaration of incompatibility was made.
Also in 2002, the case of Stafford v UK4, heard in the European Court of Human Rights (ECHR), declared that the Home Secretary's role in sentencing was not lawful according to Article 5 (1+4) of the convention, which states that it is not permissible for a politician to review an offender's continued detention. As a result of this, David Blunkett took measures in an attempt to reassure the British public and re-affirm his hard line on life-sentencing, stating in an interview that was broadcast on BBC television stating that '…
life should mean life'5. He then vowed to use all domestic legislation to '… enshrine the power of Parliament to provide adequate punishment for the guilty – including life meaning life'. Blunkett, in making this declaration, was behaving in an explicitly populist manner. The typical public point of view is that no one likes to see a person 'get away with murder', and the public as a whole like to see a murderer punished severely for his actions.