Page 1 of 54 MURDER Written by Andrew Hill http://www.33bedfordrow.co.uk/barris ters/andrew-hill.html Talk at London School of Business and Management on 10th Oct 2016 www.lsbm.ac.uk INTRODUCTION Government rejects US-style offence of first-degree murder September 14, 2016 Minister of State for Justice Oliver Heald has informed MPs that the introduction of a three-tier system of offences, similar to that in the US, would mean downgrading most killings to a second- degree category, which would not be well received by the public. He did however encourage prosecutors to continue to use the much criticised joint enterprise charge, despite a Supreme Court ruling in February 2016 stating that judges had been "misinterpreting a key element of the offence for the past 30 years".
Transcript
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MURDER Written by Andrew Hill http://www.33bedfordrow.co.uk/barristers/andrew-hill.html Talk at London School of Business and Management on 10th Oct 2016 www.lsbm.ac.uk INTRODUCTION Government rejects US-style offence of first-degree murder September 14, 2016 Minister of State for Justice Oliver Heald has informed MPs that the introduction of a three-tier system of offences, similar to that in the US, would mean downgrading most killings to a second-degree category, which would not be well received by the public. He did however encourage prosecutors to continue to use the much criticised joint enterprise charge, despite a Supreme Court ruling in February 2016 stating that judges had been "misinterpreting a key element of the offence for the past 30 years".
1 Following the decision in R v Jogee [2016] UKSC 8; R v Ruddock [2016] UKPC 7 the Supreme Court and Privy Council unanimously re-stated the principles concerning the liability of secondary parties in a single judgment. The court held that “parasitic accessory” approach to liability is no longer to be applied in English law.
D’s liability for criminal offences committed by P is to be based on ordinary principles of secondary liability.
2 D is liable as an accessory (and not as a principal) if he assists or encourages or causes another person, P to commit the offence and D does not, by his own conduct, perform the actus reus. The offence occurs where and when the principal offence occurs. It is not necessary that D’s act of assistance or encouragement was contemporaneous with the commission of the offence by P. D’s acts must have been performed before P’s crime is completed. There is no requirement that D and P shared a common purpose or intent. It is immaterial that D joined in the offence without any prior agreement. D will not be liable for P’s offence if D and P have agreed on a particular victim and P deliberately commits the offence against a different victim.
3 D’s liability for assisting an offence will depend on proof that the offence was committed even if the principal offender cannot be identified and that: (1) D’s condu
assisted the offender, P, in the commission of the offence. (2) D intended that his conduct would assist P.
D had not withdrawn at the time of P’s offence
4 D’s liability for encouraging an offence will depend on
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proof that the offence was committed, even i offender cannot be identified, and that: D’s conduct amounting to encouragement came to the attention of P (it does not matter that P would have committed the offence anyway) but there is no requirement that D’s conduct has caused P’s conduct. Non- accidental presence may suffice if D’s presence did encourage and D intended it to.
D intended, by his conduct to encourage P. The prosecution do not need to establish that D desired that the offence be committed. P must have been aware that he had D’s encouragement or approval.
D knew,or if the act is preparatory to P’s offence, intended the essential elements of P’s crime, albeit not of the precise crime or the details of its commission.
5 D’s mens rea is satisfied by proof that: (1) D intended to assist or encourage P (2) D had done so knowledge of "any existing facts necessary" for P's conduct/intended conduct to be criminal; i.e. D must intend/know that P will act with the mens rea for the offence emphasising that care is needed where D is drunk and might not realise that he was giving encouragement.
Intention is what is required. As elsewhere in the criminal law that is not limited to cases where D “desires” or has as his “purpose” that P commits the offence but, most importantly, intention is not to be equated with foresight: "Foresight may be good evidence of intention but it is not synonymous with it."
"Knowledge or ignorance that weapons generally, or a particular weapon, is carried by P will be evidence going to what the intention of D was, and may be irresistible evidence one way or the other, but it is evidence and no more."
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Where P’s offence requires proof that P acted with intent (e.g. murder) D must intend to assist/encourage P to act with that intent ; it is sufficient that D intended to assist or encourage P to commit grievous bodily harm . It is not necessary for D to intend to encourage or assist P in killing.
Where there is a prior joint criminal venture it might be easier for the jury to infer the intent. It “will often be necessary to draw the jury's attention to the fact that the intention to assist, and indeed the intention that the crime should be committed, may be conditional."
"If the jury is satisfied that there was an agreed common purpose to commit crime A, and if it is satisfied also that D must have foreseen that, in the course of committing crime A, P might well commit crime B, it may in appropriate cases be justified in drawing the conclusion that D had the necessary conditional intent that crime B should be committed, if the occasion arose; or in other words that it was within the scope of the plan to which D gave his assent and intentional support. But that will be a question of fact for the jury in all the circumstances.”
An intention may also be inferred where there was no prior criminal venture. Where “D joins with a group which he realises is out to cause serious injury, the jury may well infer that he intended to encourage or assist the deliberate infliction of serious bodily injury and/or intended that that should happen if necessary. In that case, if P acts with intent to cause serious bodily injury and death results, P and D will each be guilty of murder."
D’s liability for manslaughter if D did not intend that P should commit murder
If P murdered V in the course of a criminal venture with D but D did not intend that P might intentionally kill or cause really serious harm, D can be found guilty of manslaughter
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if the jury are sure that D intentionally participated in an offence in the course of which V’s death was caused and a reasonable person would have realized that, in the course of that offence, some physical harm might be caused to some person.
D’s liability for manslaughter if P is convicted of manslaughter
Where D and P participate in a crime and in the course or furtherance of that crime P kills V without intentionally doing so or intending to cause GBH, P will be liable to be convicted of manslaughter if:
. (1) P intentionally performed the unlawful act;
. (2) that act caused V’s death;
. (3) a reasonable person sharing P’s knowledge of the circumstances would have realized that P’s unlawful act might cause a risk of some physical harm, albeit not necessarily serious harm, to V.
If there was a manslaughter by P, D will be guilty of it if:
. (1) D participated in the unlawful act (as a joint principal or accessory);
. (2) D was aware of the circumstances in which the unlawful act would be committed;
. (3) a reasonable person sharing D’s knowledge of the circumstances would have realized that P’s unlawful act might cause a risk of some physical harm to V. .D can also be guilty of manslaughter, irrespective of P’s liability if D intentionally committed an offence and it caused V’s death and a reasonable person would realize that that act might cause a risk of some physical harm to some person albeit not necessarily serious harm.
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D is guilty of a crime committed by another person (P) if D intentionally assists/encourages/causes P to commit the crime
If P's crime requires a particular intention on P's part, e.g. murder or a section 18 offence: This means that D must intentionally assist/encourage/cause P to (commit the actus reus) with (the required intent). In Jogee paras.90 and 98 it is said that in a case of concerted physical attack resulting in GBH to V, it may be simpler and will generally be perfectly safe to direct the jury that D must intentionally assist/encourage/cause P to cause such harm to V, D himself intending that such harm be caused.
Though the prosecution must prove that D intended to assist/encourage/cause P to commit the crime concerned, they do not need to prove that D had any particular wish/desire/motive for the offence to be committed.
The prosecution must prove that D knew about the facts that made P's conduct criminal.
Where D does not know which particular crime P will commit, e.g. where D supplies P with a weapon to be used for a criminal purpose: D need not know the particular crime which P is going to commit. D will be guilty if he intentionally assists/encourages/causes P to commit one of a range of offences which D has in mind as possibilities, and P commits an offence within that range.
It does not matter whether P commits the crime alone or with others.
D need not assist/encourage/cause P to commit the crime in any particular way e.g. by using a weapon of a particular kind.
It is not necessary that D should have met or
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communicated with P before P commits the crime. .D's conduct in assisting, encouraging, causing P to commit the crime may take different forms. It will usually be in the form of words and/or conduct. Merely associating with P/ being present at the scene of P's crime will not be enough; but if D intended by associating with P/being present at the scene to assist/encourage/cause P to commit the crime e.g. by contributing to the force of numbers in a hostile confrontation, or letting P know that D was there to provide back-up if needed, then D would be guilty.
The prosecution do not have to prove that what D did actually influenced P's conduct or the outcome.
The prosecution do not have to prove that there was any agreement between D and P that P should commit the offence concerned.
Where the prosecution do allege an agreement between D and P: The agreement that P should commit the crime need not be formal or made in advance. It may be spoken or made by a look or a gesture. The way in which people behave, e.g. by acting as part of a team, may indicate that they had made an agreement to commit a crime. Any such agreement would be a form of encouragement to P to commit the crime.
Where the prosecution allege that there was an agreement between D and P to commit crime A, in the course of doing which P went on to commit crime B, with which D is also charged, a direction based on the following will be appropriate: If D agrees with P to commit crime A, in the course of doing which P also commits crime B, D will also be guilty of crime B if D shared with P an intention that crime B, or a crime of that type, should be committed if this became necessary. It is for the jury to decide whether D shared that intention with P. If the jury were satisfied that D must have foreseen that, when committing crime A , P might well commit crime B, or a
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crime of that type, it would be open to the jury to conclude that D did intend that crime B should be committed if the occasion arose. Whether or not the jury think it right to draw that conclusion is a matter entirely for them.
Murder: overview The definition of murder is derived from Coke's Institutes of 1797 (3 Co. Inst. 47): " Murder occurs where a person of sound mind and discretion unlawfully kills any reasonable creature in being and under the Queen's peace and, does so with malice aforethought. " In plain English, and reflecting the changes of case law and statute law to date, the definition is as follows: " Murder occurs when (i) a sane person who is at least 10 years old, (ii) with no lawful excuse, (iii) does an act that is a substantial cause of someone else's death and (iv) does the act with the intent to kill or cause serious harm. " Whilst the offence is easily stated, there are a number of elements that need to be proved or disproved for someone to be convicted of murder. There are also specific defences or partial defences that may reduce the offence to manslaughter. These are dealt with in the overview and the detailed discussion below. The mandatory sentence for murder is imprisonment for life for those aged 21 or over, custody for life for those aged over 18 but under 21 and detention at Her Majesty's pleasure for offenders under 18 at the time of the offence. In reality "life" means a person convicted of murder is liable to be in prison for life but will most probably be released at some stage. Very few people serve the remainder of their life in prison. The sentencing judge will set a minimum tariff being the number of years a convicted person will serve to mark the gravity of the offence. At the end of the tariff he or she may be
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released by the Parole Board but, once released will remain at risk of recall for the remainder of their life. The tariffs set for murder and manslaughter have increased in recent years, particularly in cases where a weapon is used or an attack is made to a public servant or motivated by race, sexual orientation or other similar matters - so called "hate crimes". Overview of Topic The specific ingredients of murder are dealt with in detail below but, in short, they are as follows. It is for the Prosecution to prove or disprove matters to the criminal standard (beyond reasonable doubt) save that the defendant must prove the defence of insanity to the civil standard (the balance of probability). There are three special defences to murder which reduce the offence from murder to manslaughter. These are:
a loss of control which replaces provocation, b diminished responsibility which is recently redefined and c killing in pursuance of a suicide pact. A person of sound mind and discretion: Means someone who is sane and at least 10 years old. Unlawfully (with no lawful excuse): Means there is no justification in law such as self-defence, defence or another, the prevention of crime or bona fide medical intervention. Kills This means causes or contributes to death in a substantial or significant way. It is not a comparative analysis of acts. It is enough merely that the act complained of played some significant part in causing the death of the victim. Any reasonable Creature in being: This can be simplified as meaning a human being who is fully born and has a life independent of his/her mother. Under the Queen's Peace: The original meaning and extent of this phrase is a little unclear; however, it is now taken to mean that killing in the heat and exercise of war or when quelling a rebellion will not amount to murder. Malice Aforethought: This does not mean pre-meditation or
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hatred, rather it means with intent to kill or to cause grievous bodily harm. Intent is not to be equated with motive or desire.
Time limits: The additional requirement that death follows within a year and a day of the infliction of injury was abolished by the Law Reform (Year and a day rule) Act 1996 for any such conduct occurring on or after 17 June 1996. However, if the injury alleged to have killed the victim was sustained more than three years before death, the consent of the Attorney-General is required to commence proceedings. The ingredients of murder: The specific ingredients of murder are as follows. Save for the question of "being of sound mind", it is for the prosecution to prove or disprove matters to the criminal standard, beyond reasonable doubt (sure). A person of sound mind and discretion: As is made clear in the "plain English" definition above this means someone who is sane and, at least 10 years old. Such prerequisites are not peculiar to murder. Insanity is a general defence based on a lack of mental responsibility. Everyone is presumed to be sane unless the contrary is proven (R. v Layton (1849) 4 Cox 149). The burden of proving insanity is upon the defence (R. v Smith (Oliver) (1911) 6 Cr. App. R. 19). By s.50 of the Children and Young Persons Act 1933 it is:" conclusively presumed that no child under the age of ten years can be guilty of any offence. " Unlawfully (with no lawful excuse): This excludes killing where there is a justification in law for so doing. Examples of lawful justification include acting in reasonable self defence, defence of another, the prevention of crime and bona fide medical intervention. Self-defence, a term which also includes defence of another, provides a defence as long as the force used is reasonable. It must not descend into retaliation or, be excessive. Under s.3(1) of the Criminal Law Act 1967, a person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of another. This clearly encompasses using reasonable force in the prevention of crime
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to oneself. Section 76 of the Criminal Justice and Immigration Act 2008 sets out in statutory form what already existed in common law regarding self-defence. In essence, a person is entitled to use the degree of force that he/she believes to be reasonable in the circumstance as he/she perceives them. The reasonableness of that belief goes to the issue of whether he/she did in fact hold it. Just because a jury thinks the belief was unreasonable does not of itself mean that the defendant thought so at the time. Additionally, a defendant may still rely upon a genuine but mistaken belief (e.g. that he/she was about to be attacked) but, he/she cannot rely on that belief if the mistake was fuelled by self-induced intoxication. If the defendant's force was disproportionate in the circumstance he/she perceived then it cannot be reasonable (for example you cannot shoot or stab a man who raises a hand to you - but see below under recent developments). See R. v Clegg (Lee William) [1995] 1 A.C. 482 in which excessive force meant that the act in defence was not reasonable. The self-defence contended for failed and C was convicted of murder. The defendant is not expected to "weigh to a nicety" what defensive action is necessary and if he/she does no more than he/she instinctively and honestly thought was necessary then that is powerful evidence that they took reasonable action. See also what is termed the classic pronouncement of self-defence by the Privy Council in Palmer (Sigismund) v Queen, The [1971] A.C. 814, which was adopted by the Court of Appeal in R. v McInnes (Walter) [1971] 1 W.L.R. 1600. It starts thus:" It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances? " If someone is attacked there is no duty upon the victim to retreat. The question of whether they could or could not retreat is merely one factor in the case. That has been the position for many years but when s.76(6A) of the 2008 Act is brought into effect this principle is made explicit.
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Furthermore a victim who perceives that an attack is about to occur may use reasonable force to prevent the assault. If death results from bona fide medical or surgical treatment it is not murder even though death or serious injury is foreseen. There is a real distinction to be drawn between the proper and lawful withdrawal of life-support treatment and the deliberate termination of a patient's life (Airedale NHS Trust v Bland [1993] A.C. 789). Deliberate termination of life remains murder even if the accused does so as an act of mercy. There is no such thing as a mercy killing in law: see R. v Inglis (Frances) [2010] EWCA Crim 2637; [2011] 1 W.L.R. 1110. Hastening the death of one who is already dying is unlawful and could amount to murder (or manslaughter).
Kills: This means causes or contributes to death. An act need not be the sole or the principle cause of death. It is sufficient for it to be a substantial or significant cause. In this context substantial or significant simply means "of substance". It is not a comparative analysis of acts. It is enough merely that the act complained of played some significant part in causing the death of the victim. See for example, R. v Pitts 174 E.R. 509; R. v Curley (James) (1909) 2 Cr. App. R. 109; R. v White (John) [1910] 2 K.B. 124 and R. v Smith (Thomas Joseph) [1959] 2 Q.B. 35. There are a considerable number of cases involving issues of causation and intervening events. In these cases the defendant seeks to suggest that he/she is not responsible for death but someone else is. Examples involve medical treatment of varying quality, lawful police action or "have a go heroes" doing more harm than good. Many can be understood (and the defence dismissed) by asking the questions "but for the defendant's act, would the train of events that led to death have occurred?" If the answer is no, the chain of causation linking the accused to the death remains intact. The chain of causation is only broken when there is an entirely separate and intervening event which is the sole cause of death. Whether the accused will be convicted of murder or manslaughter depends upon his/her state of mind
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in inflicting the injuries that set the train of events in motion. Any reasonable creature in being: This can be simplified as meaning a human-being who is fully born and has a life of his own. Causing the death of a child whilst in the womb is not murder or manslaughter although it may amount to child destruction contrary to the Infant Life (Preservation) Act 1929; Attorney General's Reference (No.3 of 1994), Re [1996] Q.B. 581.
Under the Queen's peace: The original meaning and extent of this phrase is a little unclear however it is now taken to mean that killing in the heat and exercise of war or when quelling a rebellion will not amount to murder: R. v Page (Harry Richard) [1954] 1 Q.B. 170. Thus killing an enemy alien in the heat of battle is justified by reason of the fact that the deceased is not under the Queen's Peace. If the killing is not done in the heat of battle and is by any other name an execution, then it may amount to murder. The same applies if it is the enemy alien who executes a British subject rather than acting in the heat of battle. Sections 9 and 10 of the Offences Against the Person Act 1861 provide that the killing of anyone by a British subject anywhere in the world may be tried here. The killing of anyone by an alien (non-British-subject) may also be tried here. It matters not that death occurs abroad provided the defendant's act occurred within the jurisdiction. The War Crimes Act 1991 also provides that killings which occurred in Germany or German Occupied Territory during World War II may be tried here regardless of the defendant's nationality (R. v Sawoniuk (Anthony) [2000] 2 Cr. App. R. 220). Malice aforethought: This does not mean pre-meditation or hatred, rather it means with intent to kill or to cause grievous bodily harm. Additionally intent is different to motive or desire. "With intent" requires proof of that specific state of mind. The gist of subsequent cases is that the word intent has an ordinary meaning and juries should be left to decide the issue for themselves. Foresight of consequences is one fact from which intent may be inferred but, it is only one factor in the
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case. It is not by itself necessarily determinative. Grievous bodily harm simply means "serious" or "really serious" injury: DPP v Smith [1961] A.C. 290. The harm does not have to be life-threatening: R. v Cunningham (Anthony Barry) [1982] A.C. 566.
The year and a day rule: The additional requirement that death follows within a year and a day of the infliction of injury was abolished by the Law Reform (Year and a day rule) Act 1996 for any such conduct occurring on or after 17 June 1996. However, the Attorney-General's consent is required where the injury alleged to cause death was sustained more than three years before death actually occurs. The year and a day limitation still applies to injury inflicted before the 17 June 1996. DEFENCES Diminished responsibility Section 2 of the Homicide Act 1957 which provides for the defence of diminished responsibility was substantially amended by s.52(1) of the Coroners and Justice Act 2009. The amended section set out below applies to offences that occurred on or after 4 October 2010. For matters prior to that date the old law applies. The defence is not available on a charge of attempted murder. Section 2(1):" A person ('D') who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which: (a) arose from a recognised medical condition,(b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and(c) provides an explanation for D's acts and omissions in doing or being a party to the killing.(1A) Those things are:(a) to understand the nature of D's conduct;(b) to form a rational judgment;(c) to exercise self-control.(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an
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explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct. " As to the remaining subsections, s.2(2) places the burden of proof upon the defence, s.2(3) provides that this is a partial defence only reducing what would otherwise be a conviction for murder to one of manslaughter and s.2(4) limits the defence to the defendant in question. Its success or otherwise does not affect the liability of others to murder. In short, the defence must prove that D was suffering from a recognised medical condition that substantially impaired his ability to know what he was doing, form a rational judgment or control himself and, the medical condition explains why he "got involved". The most frequent issue in trial is the question of exercising self-control. Loss of control The new partial defence of "loss of control" (which replaces provocation) is provided by ss.54 and 55 of the, Coroners and Justice Act 2009. It applies to events on or after the 4 October 2010. For matters prior to this date the old law of provocation will still apply. The new defence stems from the debate over whether the old formulation of provocation allowed vengeful husbands to be acquitted of murder by claiming they were provoked into killing their unfaithful wives, but did not afford the same defence for battered wives who had suffered years of abuse at the hands of their husbands and who finally snapped over a relatively trivial incident. As with much modern legislation it is clumsy, over-complicated and throws up unexpected anomalies. An example of the problems is that cumulative abuse may found a defence for the battered partner who has endured years of assaults but, if the final incident (the straw that breaks the camel's back) is relatively trivial or does not of itself suggest serious violence is imminent, the defence may not be available. The blanket exclusion of infidelity also causes serious problems to both sexes. The 2009 Act provides as follows:
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Section 54 - Partial defence to murder: loss of control " (1) Where a person ('D') kills or is a party to the killing of another ('V'), D is not to be convicted of murder if: (a) D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control, (b) the loss of self-control had a qualifying trigger, and(c) a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D. (2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden. (3) In subsection (1)(c) the reference to "the circumstances of D" is a reference to all of D's circumstances other than those whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self-restraint. (4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge. (5) On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not. (6) For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply. (7) A person who, but for this section, would be liable to be convicted of murder is liable instead to be convicted of manslaughter. (8) The fact that one party to a killing is by virtue of this section not liable to be convicted of murder does not affect the question whether the killing amounted to murder in the case of any other party to it. " Section 55 - Meaning of "qualifying trigger"
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" (1) This section applies for the purposes of section 54. (2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies. (3) This subsection applies if D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person. (4) This subsection applies if D's loss of self-control was attributable to a thing or things done or said (or both) which - (a) constituted circumstances of an extremely grave character, and (b) caused D to have a justifiable sense of being seriously wronged. (5) This subsection applies if D's loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4). (6) In determining whether a loss of self-control had a qualifying trigger (a) D's fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence; (b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence; (c) the fact that a thing done or said constituted sexual infidelity is to be disregarded. (7) In this section references to 'D' and 'V' are to be construed in accordance with section 54. " . The complex formulations of the Act set out above allow for
the following easily digestible summary: D will be convicted of manslaughter not murder if he
raises the issues of loss of control successfully. Self-Defence
There is considerable debate over home-owners using excessive force, weapons or firearms and inflicting fatal injury when
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confronted by a burglar. This was particularly so following the case of R. v Martin (Anthony Edward) [2001] EWCA Crim 2245; [2003] Q.B. 1 in which M shot two burglars, killing one and seriously injuring the other. He was convicted of murder by the jury who rejected his defence of self-defence. On appeal his defence was again rejected, but the murder conviction was replaced by manslaughter on ground of diminished responsibility owing to his paranoid personality disorder caused or exacerbated by multiple previous intrusions in his home. JOGEE In all cases the defendant’s actus reus (the defendant being the accessory) is satisfied by proof that he did acts to encourage and/or assist the principal to commit the offence.6 The defendant’s conduct in assisting, encouraging, or procuring the principal to commit the crime may take different forms, consisting in words and/or conduct. Merely associating with the principal or being present at the scene of his crime will not be enough. If, however, the defendant intended by associating with the principal or being present at the scene to assist/encourage/procure him to commit the crime (e.g. by contributing to the force of numbers in a hostile confrontation, or letting the principal know that he was there to provide back-up if needed), then the defendant will be guilty as an accessory to any crimes of the principal that he intentionally assisted or encouraged.7 The shift brought about by Jogee relates to mens rea. The shift is from it being sufficient for murder that the defendant "foresaw that the principal might intentionally cause really serious harm or kill if the circumstances arose" to requiring that the defendant "knew/intended that the principal will intentionally cause really serious harm or kill if the circumstances arose". 8 The law on joint enterprise murder has been harsh on secondary parties and in R v Jogee the Supreme Court attempts to alleviate
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this harshness by reversing an incomplete and erroneous reading of the previous case law. The Facts On 28 March 2012 two men, Jogee and Hirsi, were each convicted of the murder of a man called Fyfe. Hirsi was the principal and Jogee the secondary party. On 10 June 2011 they were at the home of a woman called Naomi Reid in Leicester. Both were intoxicated on drugs and alcohol. Hirsi entered the house, shouting and Fyfe came downstairs and there was an angry exchange. Fyfe went back upstairs to put on his jeans. Meanwhile Hirsi took a knife from the kitchen. Fyfe then came back downstairs and tried to get Hirsi and Jogee to leave. Fyfe was in hallway, confronting Hirsi who was armed with a knife. Jogee was outside, striking a car with a bottle and shouting encouragement to Hirsi to do something to Fyfe. Jogee then came to the doorway, holding the bottle and he leaned pass Hirsi saying he wanted to smash the bottle over Fyfe's head but he was too far away. Thus here was a joint enterprise or common purpose to cause at least actual bodily harm to Fyfe. Fyfe told them to leave but they refused. Miss Reid threatened to call the police whereupon Hirsi pointed the knife at her chest and grabbed her by the throat. Reid retreated into the kitchen and as she did so she saw Hirsi make a stabbing motion towards Fyfe's chest and then both Hirsi and Jogee ran off. Hirsi had stabbed Fyfe, who died of his wounds. Jogee's appeal against conviction was dismissed by the Court of Appeal and he further appealed to the Supreme Court. In R v Jogee 1 the Supreme Court held that his murder conviction should be quashed and either there should be a retrial or the court should substitute a manslaughter conviction. The Supreme Court invited submissions on that question. Jogee was convicted of murder (the collateral offence to a joint enterprise) by the application of the Chan Wing-Siu principle.
The principle imposed what is known as parasitic accessory liability. This was accepted into English law by the Court of
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Appeal in R v Hyde. In R v English the House of Lords qualified this principle with the fundamental difference rule. In R v Rahman this law is restated by Lord Brown as follows: If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture unless (i) A suddenly produces and uses a weapon of which B knows nothing and which is more lethal than any weapon which B contemplates that A or any other participant may be carrying and (ii) for that reason A's act is to be regarded as fundamentally different from anything foreseen by B. (The first part of the restatement represents the Chan Wing-Siu principle whilst the italicised words reflect the English qualification). In Jogee the jury must have applied this principle and concluded that Jogee was guilty of murder because he was subjectively reckless as to the risk of it. There was no need to show that Jogee assisted or encouraged the murder, nor that he intended or agreed that it be committed. In contrast, to convict Hirsi of murder the jury must have been sure that when he stabbed Fyfe he had an intention to kill or to cause serious bodily harm. Whilst both Jogee and Hirsi were guilty of murder and received the mandatory life sentence, there was no parity of culpability.So the law was harsh on Jogee. The Law Commission has recommended the retention of the Chan Wing- Siu principle because a secondary party can avoid liability by convincing the jury that the collateral offence of murder was committed in a fundamentally different way from that foreseen by the secondary party. The Supreme Court disagreed by reaching the conclusion that the introduction of the Chan Wing-Siu principle was based "on an incomplete, and some respects erroneous reading of the previous case law, coupled with generalised and questionable policy arguments'.The Supreme Court recognises that this is a
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significant step of reversing a statement of principle which has been made and followed by Privy Council and House of Lords on a number of occasions. It should be noted that in Rahman Lord Neuberger agreed to the restatement of the law by Lord Brown. But now Lord Neuberger has agreed to the reversal! The law took a wrong turn in 1984 and an earlier line of cases should have been followed: In a line of cases the courts recognised that even where there was a joint intent to use weapons to overcome resistance or avoid arrest, the participants might not share an intent to cause death or really serious harm. If the principal had that intent and caused the death of another he would be guilty of murder. Another party who lacked that intent, but who took part in an attack which resulted in an unlawful death, would be not guilty of murder but would be guilty of manslaughter, unless the act which caused the death was so removed from what they had agreed as not to be regarded as a consequence of it. For Jogee to be guilty of murder the jury would have to be sure that he intended to encourage or assist Hirsi's deliberate stabbing of Fyfe--so both mens rea and an actus reus are required. (This can be called the Jogee principle, which has general application and is not limited to murder.) Otherwise he would be guilty of manslaughter because he participated by encouragement or assistance in an unlawful act (Hirsi's stabbing of Fyfe), which all sober and reasonable people would realise carried the risk of some harm to another, and death in fact results. The Supreme Court gives a number of reasons for the reversal. First, in Jogee the court was able to carry out a much fuller analysis of the case law than on previous occasions. Secondly, the existing law was not working properly, with there being a large number of appeals. Thirdly, as the law had taken a wrong turn it was right to correct it. Fourthly, the existing law represented an over-extension of the law of murder and a reduction in the scope of manslaughter. A principal can be guilty of murder even though he only had an intention to cause serious bodily harm, but for secondary participation the
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threshold is even lower, as it is sufficient that the secondary party foresaw the possibility of murder by the principal. Fifthly, this distinction is a striking anomaly in the common law. Sixthly, the doctrine of secondary participation is part of the common law (albeit put into statutory form by s. 8 of the Accessories and Abettors Act 1861) so it is right that the correction in the law should be made by the court rather than Parliament. Seventhly, the change would bring the law of secondary participation in line with the inchoate liability contained in the Serious Crime Act 2007. Finally, "The long-standing pre Chan Wing-Siu practice of inferring intent to assist from a common criminal purpose which includes the further crime, if the occasion for it were to arise, was always a legitimate one; what was illegitimate was to treat foresight as an inevitable yardstick of common purpose.' There were people cheering the judgment outside the Supreme Court. The question is: were they right to do so? The judgment makes it clear that the liberalisation of the law is not retrospective. "The effect of putting the law right is not to render invalid all convictions which were arrived at over many years by faithfully applying the law as laid down in Chan Wing-Siu.'The Court of Appeal can grant leave to appeal out of time and may do so if substantial injustice can be shown, but it will not do so simply because the law has been declared to be wrong.So, many secondary parties convicted under the Chan Wing-Siu principle and residing in prison will be unable to appeal their murder convictions. For them the law remains harsh. The error identified, of equating foresight with intent to assist rather than treating the first as evidence of the second, is important as a matter of legal principle.' In many cases the secondary party will want the principal to murder--a direct intent to assist--but there will also be cases where the secondary party wants only for the original common purpose, such as a burglary, to succeed but not the murder. This is where foresight is evidence from which an indirect intent to assist can be found.
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There is the old chestnut of what intent means when it is found from foresight. The judgment rules out desire. But, more importantly, there is no real guidance as to the degree of foresight required before an intention to assist can be found. The judgment says "in the common law foresight of what might happen is ordinarily no more than evidence from which a jury can infer the presence of a requisite intention.' The word "might' implies that a much wider degree of foresight can be used to find an intention to assist than that for liability for murder as a principal, which requires foresight of the virtual certainty of death or serious injury before the principal's murderous intent can be found from foresight. In addition, when will a jury not find an intention to assist from foresight? For example, when a secondary party foresees the principal might use a weapon, surely the jury will conclude that he realised this not done for a benevolent purpose and find an intention to assist when the principal murders using the weapon. Conversely not knowing a weapon secreted was to be carried and used would certainly assist a Defendant secure an acquittal. Lord Hughes In Jogee Lord Hughes and Lord Toulson: (with whom Lord Neuberger, Lady Hale and Lord Thomas Agree) 1 In the language of the criminal law a person who assists or encourages another to commit a crime is known as an accessory or secondary party. The actual perpetrator is known as a principal, even if his role may be subordinate to that of others. It is a fundamental principle of the criminal law that the accessory is guilty of the same offence as the principal. The reason is not difficult to see. He shares the physical act because even if it was not his hand which struck the blow, ransacked the house, smuggled the drugs or forged the cheque, he has encouraged or assisted those physical acts. Similarly he shares the culpability precisely because he encouraged or assisted the offence. No one doubts that if the principal and the accessory are together engaged on, for example, an armed robbery of a bank, the
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accessory who keeps guard outside is as guilty of the robbery as the principal who enters with a shotgun and extracts the money from the staff by threat of violence. Nor does anyone doubt that the same principle can apply where, as sometimes happens, the accessory is nowhere near the scene of the crime. The accessory who funded the bank robbery or provided the gun for the purpose is as guilty as those who are at the scene. Sometimes it may be impossible for the prosecution to prove whether a defendant was a principal or an accessory, but that does not matter so long as it can prove that he participated in the crime either as one or as the other. These basic principles are long established and uncontroversial. 2 In the last 20 years a new term has entered the lexicon of criminal lawyers: parasitic accessory liability. The expression was coined by Professor Sir John Smith in a lecture later published in the Law Quarterly Review ( Criminal liability of accessories: law and law reform [1997] 113 LQR 453 ). He used the expression to describe a doctrine which had been laid down by the Privy Council in Chan Wing-Siu v The Queen [1985] AC 168 and developed in later cases, including most importantly the decision of the House of Lords in R v Powell and R v English [1999] 1 AC 1 . In Chan Wing-Siu it was held that if two people set out to commit an offence (crime A), and in the course of that joint enterprise one of them (D1) commits another offence (crime B), the second person (D2) is guilty as an accessory to crime B if he had foreseen the possibility that D1 might act as he did. D2's foresight of that possibility plus his continuation in the enterprise to commit crime A were held sufficient in law to bring crime B within the scope of the conduct for which he is criminally liable, whether or not he intended it. In these appeals the court has been asked to review the doctrine of parasitic accessory liability and to hold that the court took a wrong turn in Chan Wing-Siu and the cases which have followed it. It is argued by the appellants that the doctrine is based on a flawed reading of earlier authorities and questionable
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policy arguments. The respondents dispute those propositions and argue that even if the court were now persuaded that the courts took a wrong turn, it should be a matter for legislatures to decide whether to make any change, since the law as laid down in Chan Wing-Siu has been in place in England and Wales and in other common law jurisdictions including Jamaica for 30 years. The two appeals, Jogee in the Supreme Court and Ruddock in the Judicial Committee of the Privy Council, were heard together. The Accessories and Abettors Act 1861, section 8 (as amended), provides that: “Whosoever shall aid, abet, counsel or procure the commission of any indictable offence … shall be liable to be tried, indicted and punished as a principal offender.” The requisite conduct element is that D2 has encouraged or assisted the commission of the offence by D1. If the crime requires a particular intent, D2 must intend to assist or encourage D1 to act with such intent. In plain terms, our analysis leads us to the conclusion that the introduction of the principle was based on an incomplete, and in some respects erroneous, reading of the previous case law, coupled with generalised and questionable policy arguments. We recognise the significance of reversing a statement of principle which has been made and followed by the Privy Council and the House of Lords on a number of occasions. We consider that it is right to do so for several reasons. THERE IS HOPE FOR US ALL EVEN OUR TEACHERS WHO GET IT WRONG TIME AFTER TIME THAT IT TAKES GREAT BRAVERY TO REVERSE THE TIDE THAT PLACED A WIDE NET EVER INCREASING RESULTING IN CONVICTIONS OR POTENTIAL CONVICTIONS FOR
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MURDER OF THOSE ON THE EXTREMITIES…WHO DID NOT SHARE MURDEROUS INTENT. LONG RECOGNISED BY BAILEY JUDGES 80 Firstly, we have had the benefit of a much fuller analysis than on previous occasions when the topic has been considered. In Chan Wing-Siu only two English cases were referred to in the judgment — Anderson and Morris and Davies . More were referred to in the judgments in Powell and English , but they did not include (among others) Collison , Skeet , Spraggett or notably Reid . 81 Secondly, it cannot be said that the law is now well established and working satisfactorily. It remains highly controversial and a continuing source of difficulty for trial judges. It has also led to large numbers of appeals. 82 Thirdly, secondary liability is an important part of the common law, and if a wrong turn has been taken, it should be corrected. 83 Fourthly, in the common law foresight of what might happen is ordinarily no more than evidence from which a jury can infer the presence of a requisite intention. It may be strong evidence, but its adoption as a test for the mental element for murder in the case of a secondary party is a serious and anomalous departure from the basic rule, which results in over-extension of the law of murder and reduction of the law of manslaughter. Murder already has a relatively low mens rea threshold, because it includes an intention to cause serious injury, without intent to kill or to cause risk to life. The Chan Wing-Siu principle extends liability for murder to a secondary party on the basis of a still lesser degree of culpability, namely foresight only of the possibility that the principal may commit murder but without there being any need for intention to assist him to do so. It savours, as Professor Smith suggested, of constructive crime. 84 Fifthly, the rule brings the striking anomaly of requiring a lower mental threshold for guilt in the case of the accessory than in the case of the principal.
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85 As to the argument that even if the court is satisfied that the law took a wrong turn, any correction should now be left to Parliament, the doctrine of secondary liability is a common law doctrine (put into statutory form in section 8 of the 1861 Act) and, if it has been unduly widened by the courts, it is proper for the courts to correct the error. 86 It is worth attention that the Westminster Parliament has legislated over inchoate criminal liability in the Serious Crime Act 2007 . Section 44 provides: “(1) A person commits an offence if — (a) he does an act capable of encouraging or assisting the commission of an offence; and (b) he intends to encourage or assist its commission. (2) But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act.” Section 45 creates a parallel offence if a person does such an act believing that the offence will be committed and that his act will encourage or assist his commission, but both sections are subject to a statutory defence if the defendant acted reasonably in the circumstances as he believed them to be. It is a noteworthy feature of the present law in England and Wales that Parliament has provided that foresight is not sufficient mens rea for the offence of intentionally encouraging or assisting another to commit an offence; whilst at present under Chan Wing-Siu if that other person goes on to commit the offence, such foresight is sufficient mens rea for the secondary party to be regarded as guilty of the full offence at common law. The correction of the error in Chan Wing-Siu brings the common law back into recognition of the difference between foresight and intent, consistently with Parliament's approach in section 44(2) of the 2007 Act and more generally in section 8 of the Criminal Justice Act 1967 (referred to at para 73 above).
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In cases of alleged secondary participation there are likely to be two issues. The first is whether the defendant was in fact a participant, that is, whether he assisted or encouraged the commission of the crime. Such participation may take many forms. It may include providing support by contributing to the force of numbers in a hostile confrontation. 90 The second issue is likely to be whether the accessory intended to encourage or assist D1 to commit the crime, acting with whatever mental element the offence requires of D1 (as stated in para 10 above). If the crime requires a particular intent, D2 must intend (it may be conditionally) to assist D1 to act with such intent. secondary participation, specifically its parasitic form, and has abolished that route to liability. What was once a rule of law is now but a rule of evidence from which a jury might infer intention to assist or encourage. The result is that a defendant will no longer be convicted of crime B merely because he foresaw what his principal might do while they jointly undertook crime A and did not withdraw from it, but the job for juries is only made slightly less difficult. The foresight test, as Wilson and Ormerod observed ([2015] Crim LR 3, at 12), could be used to convict D of a crime "which D may even have counselled his principal not to commit or which was at the periphery of his thinking when lending his support to crime A', adding that a "conviction for murder, rather than manslaughter, [was], given the power of the label and the mandatory sentence, … injustice.' In light of the decision of the Supreme Court that foresight is merely evidence of intention, and not a substitute for intention for joint enterprise, parasitic accessorial liability is no longer a route to conviction; instead, a common purpose between D and P must be found, although no agreement between them is necessary to establish that. It is no longer enough to find only
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that in the course of their joint crime A, D foresaw that his principal might commit crime B; Where the principal’s offence requires proof that he acted with intent (e.g. murder) the defendant must intend to assist/encourage the principal to act with that intent; it is sufficient that the defendant intended to assist or encourage the principal to commit grievous bodily harm.It is not necessary for the defendant to intend to encourage or assist the principal in intentional killing. OMEROD SUGGESTS LITTLE MAY HAVE CHANGED I DISAGREE-IT’S THE APPROACH THE STEPS TO VERDICT BY DIRECTION THAT HAD WIDENED THE NET AND CAUGHT PEOPLE WITHOUT MURDEROUS INTENT-JOGEE GOES SOME WAY TO DIRECTING JURORS TO INTENT AND CULPABILITY. SENTENCING FOR MURDER 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
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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. Life sentences When a court passes a life sentence it means that the offender will be subject to that sentence for the rest of their life. When passing a life sentence, a judge must specify the minimum term (sometimes called the tariff) an offender must spend in prison before becoming eligible to apply for parole. The only exception to this is when a life sentence is passed with a ‘whole life order’ meaning that such an offender will spend the rest of their life in prison. A life sentence always lasts for life whatever the length of the minimum term. Mandatory life sentences Parliament has decided that judges must give a life sentence to all offenders found guilty of murder. The judge will set a minimum term an offender must serve before they can be considered for release by the Parole Board. The minimum term for murder is based on the starting points set out in Schedule 21 of the Criminal Justice Act 2003 (as amended). This schedule sets out examples of the different types of cases and the starting point which would usually be applied, for example, where the murder is committed with a knife or other weapon, the starting point is 25 years. The offender will only be released once they have served the minimum term and if the Parole Board is satisfied that detaining the offender is no longer necessary for the protection of the public. If released, an offender serving a life sentence will remain on licence for the rest of their life. They may be recalled to prison at any time if they are considered to be a risk to the public. They do not need to have committed another offence in order to be recalled. Whole life order For the most serious cases, an offender may be sentenced to a life
sentence with a ‘whole life order.’ This means that their crime was so serious that they will never be released from prison. On 30 June 2016 there were 59 offenders serving a whole life sentence. These include serial killers Peter Sutcliffe, Ian Brady, Dennis Nilson and Rosemary West. there were 53 whole-life prisoners, with six additional life prisoners being held in secure hospitals.2
Regina v Ian McLoughlin Regina v Lee William Newell Case No: 2013/05646/A7, 2013/05317/A5 Court of Appeal (Criminal Division) 18 February 2014 [2014] EWCA Crim 188 It added at paragraph 122: “A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration.” 21 It made it clear that this requirement was quite different from the task of the judge in setting the sentence when saying at paragraph 124: “However, the need for independent judges to determine whether a whole life order may be imposed is quite separate from the need for such whole life orders to be reviewed at a later stage so as to ensure that they remain justified on legitimate penological grounds. Furthermore, given that the stated intention of the legislative amendment was to remove the executive entirely from the decision-making process concerning
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life sentences, it would have been more consistent to provide that, henceforth, the twenty-five year review, instead of being eliminated completely, would be conducted within a wholly judicial framework rather than, as before, by the executive subject to judicial control.” In our view, the domestic law of England and Wales is clear as to “possible exceptional release of whole life prisoners”. As is set out in R v Bieber the Secretary of State is bound to exercise his power under s.30 of the 1997 Act in a manner compatible with principles of domestic administrative law and with Article 3 .
How long do murderers serve in prison? Every year around 300 people in England and Wales are given a life sentence for murder. About 5,500 people are currently serving a prison sentence for the same. And about 200 people annually are released having served the prison part of their sentence. On average, they’ll have served about 17 years in jail, with a life on licence with the probation service to follow, unless they are recalled to prison.
Life means life – but not always life in prison People who are found guilty of murder in England and Wales have to be given a ‘mandatory life sentence’. It’s called ‘custody for life’ for those aged 18-21 and ‘detention during Her Majesty’s pleasure’ for people under 18. But apart from the most serious cases, that doesn’t mean life in prison. Instead, most people have to serve a minimum term in prison, which is determined by the judge in court after they’re found guilty. Once that term is over they can be considered for release on parole, if the Parole Board decides that it is safe to release an offender back into the
community. If the circumstances are serious enough, a ‘whole life order’ is imposed by a judge, meaning that the offender will never be released from prison and cannot be considered for parole. At the moment there are 59 prisoners serving whole life sentences either in prison or in a secure hospital. If murderers are released, they still have to serve their sentence ‘on licence’ for the rest of their lives. This means they are placed under the supervision of probation officers and must stick to certain conditions for good behaviour. In practice that means potential restrictions on travel, residence and employment—these vary depending on the case. If they breach the terms of their licence, they will be sent back to prison.
Sentences can vary a lot depending on the circumstances When a judge sentences someone for murder, he or she has to go through a process outlined in the Criminal Justice Act 2003: Choose the ‘starting point’ for a minimum term in prison, based on the severity of case before the court. This has to be 12 years for anyone aged 17 or under, and can be 15, 25 or 30 years for adults, or a whole life order for adults aged 21 or over. Consider whether the circumstances specific to the case mean the minimum term should be longer or
shorter than this starting point – what are called ‘aggravating’ and ‘mitigating’ factors. Take into account other factors such as any previous convictions, any crimes committed while the person was on bail, and if they pleaded guilty to the murder. Whole life orders are reserved for the most serious cases such as abducting and murdering a child or killing for a “political, religious, racial or ideological cause”. Since 2015, the murder of a police or prison officer in the course of his or her duty must carry a whole life order as a starting point. Since judges are able to consider the circumstances specific to the case, there’s a wide variety of possible sentences. Some murderers have been known to be given under 10 years in prison when exceptional mitigating factors are taken into account. An example is a case from a few years ago, when someone was released after just over three years and seven months. The Ministry of Justice pointed out at the time that this was because of special circumstances: “Although the offender pleaded guilty and was convicted of murder, it might be described as an assisted suicide and was dealt with apparently sympathetically by the sentencing judge.” The actual time people spend in prison also depends on if and when they’re approved for release by the Parole Board. The average amount of time people released from prison for murder have served is about 17 years.
Some do murder again There are cases of people on a life licence for murder who have murdered again. The Ministry of Justice confirmed a few years ago that data for murders committed by those on life licence for murder isn't readily accessible. However, between 2007 and October 2012, eight people were murdered by seven offenders on life licence for a previous murder. With the possible exception of genocide, murder is commonly regarded as the most serious criminal offence. In contrast to most other areas of the law, it carries a mandatory sentence of life imprisonment.1 Following conviction it falls to the trial judge to determine the minimum term--i.e. the period which the offender must serve in prison before s/he can formally apply to
be released on licence.2 The judge has a measure of discretion in setting the minimum term, though there are statutory starting-points to which s/he should have regard, especially for the more serious cases. The mandatory life sentence was assumed necessary to maintain public confidence in the criminal justice system when it replaced the death penalty half a century or so ago, but this assumption has never been appropriately tested. The occasional poll has asked the public about the appropriate sentence for murder --but without giving respondents a specific case to consider. Under these conditions, a misleading portrait of public opinion emerges. For example, when a 2007 poll asked respondents about the appropriate sentence for “people convicted *Crim. L.R. 457 of murder”, four-fifths of the public favoured the death penalty or life imprisonment without parole R. v Kelly (Marlon) [2011] EWCA Crim 1462; [2012] 1 W.L.R. 55 (CA (Crim Div)) *Arch. Rev. 7 In June 2009, after three young men convicted of murdering Ben Kinsella received mandatory life sentences, with 19 year minimum terms, Jack Straw announced his intention to review the starting point for murder committed with a knife. He cited the “considerable concern about the starting point for the minimum term for murder involving the use of a firearm, which is 30 years, compared with that for murder involving the use of a knife, which is 15 years”.1 The result of this review was the introduction of para.5A of Sched.21 to the Criminal Justice Act 2003 which applies to offences committed after March 2, 2010 and provides a 25 year starting point for murders committed with a knife or other weapon which had been taken to the scene with the intention to commit an offence or of having it available for use as a weapon WHOLE LIFE TERMS
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IF YOU KILL AGAIN YOU WILL NEVER BE RELEASED Adults convicted of murder For mandatory lifers, the judge first chooses the appropriate "starting point" from CJA 2003 Sch.21, as amended.28 Having identified this, he or she then "weighs up" any aggravating or mitigating factors not covered by the starting point to decide if the minimum term should be set higher or lower. The starting points include provision for "whole life" tariffs. In these cases, no Parole Board review date is set, meaning that the prisoner will never have an opportunity to be released. The legality of these life sentences without possibility of release (except on the very narrow grounds of compassionate release) has frequently been challenged. In Vinter v United Kingdom,29 the Grand Chamber of the ECHR upheld a complaint, concluding that a "whole life" prisoner is entitled to know what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. By a majority of 16:1, they held that this applies from the moment the sentence is imposed. Thus the majority said (at [122]): "Although the requisite review is a prospective event necessarily subsequent to the passing of the sentence, a whole life prisoner should not be obliged to wait and serve an indeterminate number of years of his sentence before he can raise the complaint that the legal conditions attaching to his sentence fail to comply with the requirements of Article 3 in this regard. This would be contrary both to legal certainty and to the general principles on victim status within the meaning of that term in Article 34 of the Convention. Furthermore, in cases where the sentence, on imposition, is irreducible under domestic law, it would be capricious to expect the prisoner to work towards his own rehabilitation without knowing whether, at an unspecified, future date, a mechanism might be introduced which would allow him, on the basis of that rehabilitation, to be considered for release. A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for
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release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration." This seems to me quite clearly right. Legal certainty requires that any life sentence prisoner knows at the beginning of his sentence how he may, even if not until a long time in the future, seek to secure his release from custody.*Crim. L.R. 803 Sadly the Court of Appeal did not agree. In Attorney General’s Reference (No.69 of 2013) (also known as Newell and McLoughlin),30 a strong five-judge court held that whole-life sentences were not incompatible with the European Convention on Human Rights 1950 art.3. Judges were to continue to impose them in exceptional cases. The compassionate release scheme provided for by s.30 of the Crime (Sentences) Act 1997 was compatible with art.3, in that it provides offenders serving whole-life sentences with the possibility of release in exceptional circumstances. And in Hutchinson v United Kingdom,31 the Fourth Chamber of the European Court of Human Rights, by a majority,32 appeared to climb down: they accepted the reasoning of the Court of Appeal
Vinter v United Kingdom (66069/09) Bamber v United Kingdom (130/10)
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Moore v United Kingdom (3896/10) (2012) 55 E.H.R.R. 34; Times, February 8, 2012; V had been convicted of murder in separate criminal proceedings and were each serving mandatory sentences of life imprisonment. All three had been given whole-life orders and would therefore not be released unless the Secretary of State was satisfied that exceptional circumstances existed so as to justify release on compassionate grounds. In two of their cases, a Secretary of State had imposed a whole-life tariff that, following the coming into force of the Criminal Justice Act 2003, had subsequently been reviewed by the High Court, which had imposed a whole-life order. The whole-life orders imposed in the instant cases were, in effect, discretionary sentences of life imprisonment without parole. They were not grossly disproportionate given the gravity of the murders for which V were convicted and given that V had not demonstrated that their continued incarceration served no legitimate penological purpose. All other people convicted of murder will have their minimum term calculated in accordance with the rules laid down in CJA 2003 Sch.21 (as amended). This lays down a hierarchy of rigid "starting points" (30 years, 25 years, 15 years or 12 years With offenders subject to the mandatory life sentence for juveniles, detention during Her Majesty’s Pleasure, there is a single starting point of 12 years. Since the decision of the House of Lords in R. (on the application of Smith) v Secretary of State for the Home Department,35 HMP detainees whose tariffs have not expired, are exceptionally entitled to periodic reviews of progress in custody with the possibility of reduction in tariff.
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This case involved a girl convicted of murdering an elderly woman in 1993, an offence committed when she was 17, and the original minimum term had been fixed at 15 years. By the time of the hearing she was 30 years old. Counsel for the Crown had argued that the welfare principle, laid down in the Children and Young Persons Act 1933 s.44,36 only applied to children and young persons and so any duty of continuing review was in effect spent. But Lord Bingham (with whom all members of the House agreed), disagreed with counsel’s interpretation: "The requirement to impose a sentence of HMP detention is based not on the age of the offender when sentenced but on the age of the offender when the murder was committed, and it reflects the humane principle that an offender deemed by statute to be not fully mature when committing his crime should not be punished as if he were. As he grows into maturity a more reliable judgment may be made, perhaps of what punishment he deserves and certainly of what period of detention will best promote his rehabilitation. It would in many cases subvert the object of this unique sentence if the duty of continuing review were held to terminate when the child or young person comes legally of age" (at [12]). The House of Lords held that the Secretary of State had a duty to keep the tariffs of HMP detainees under review
Maxmum penalty: Lfe mprsonment
Sentencing Guidelines Council
Nature of offence Startng pont Sentencng range
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Level
The most serious offences including those which (if the charge had been murder) would come within para. 4 or para. 5 of schedule 21 to the Criminal Justice Act 2003
30 years custody 20 years custody 5 years custody
27–35 years custody 7–25 years custody 2–20 years custody
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Serious and long term physical or psychological harm
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Some physical or psychological harm
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Little or no physical or psychological harm
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Level 2
Other planned attempt to kill
20 years custody 5 years custody 0 years custody
7–25 years custody 2–20 years custody 7–5 years custody
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Serious and long term physical or psychological harm
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Some physical or psychological harm
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Little or no physical or psychological harm
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Level 3
Other spontaneous attempt to kill
5 years custody 2 years custody 9 years custody
2–20 years custody 9–7 years custody 6–4 years custody
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Serious and long term physical or psychological harm
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Some physical or psychological harm
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Little or no physical or psychological harm
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Specfic aggravatng factors Specfic mtgatng factors 1. (a) the fact that the victim was
particularly vulnerable, for example, because of age or disability
2. (b) mental or physical suffering inflicted on the victim
3. (c) the abuse of a position of trust 4. (d) the use of duress or threats
against another
person to facilitate the commission of the
offence
5. (e) the fact that the victim was providing a public
service or performing a public duty
1. (a) the fact that the offender suffered from any mental disorder or mental disability which lowered his degree of culpability
2. (b) the fact that the offender was provoked (for example, by prolonged stress)
3. (c) the fact that the offender acted to any extent in self-defence
4. (d) the age of the offender
The presence of one or more aggravatng features wll ndcate a more severe sentence wthn the suggested range and, f the aggravatng feature(s) are exceptonally serous, the case wll move up to the next level.
