The penalty for murder: A myth exploded

Criminal Law Review

Volumn 1996, Issue 10, 1996, Pages 707-716

  Blom Cooper, Louis ^b   Morris, Terence ^a  

^a UNIVERSITY OF LONDON   (United Kingdom)

^b NONE

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EID: 4243155361     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (40)

1. The authors are grateful to Lord Lane for his invaluable comments upon the original draft of this article.
2. "IN THE DOCK: judges, not Ministers, should mend their ways" The Times, July 31, 1996.
3. "When the death penalty was abolished Parliament made a compact with the people that their representatives would have the right to insist on the basement for sentences in certain capital crimes."
4. On this point the Committee relies - mistakenly in our view - on Lord Shepherd's recollections (Official Report [Lords] June 26, 1995 col. 536) of the circumstances surrounding the striking of the "deal" between proponents and opponents of the Bill in 1965. Lord Shepherd was Government Chief Whip in the Lords at the time. Home Affairs Committee. Murder: The Mandatory Life Sentence, First Report, December 13, 1995. para. 54. The clear impression to be drawn from Lord Shepherd's contribution (to the debate on Lord Ackner's amendment to the Criminal Appeal Bill which would have provided for appeal against a trial judge's recommendation under s.1(2) of the Murder (Abolition of Death Penalty) Act 1965) is that a deal was done between abolitionists and retentionists in which the price of abolition was the retention of the mandatory penalty. The "deal", insofar as one was made, related to the wholly distinct issue of the determination of the period to be served, Criminal Law Review [1996] whether this was to be an exclusively judicial function or a matter for the executive. (This was before the introduction of parole by the Criminal Justice Act 1967). The element of compromise was embodied in what had been the second of Lord Parker's two amendments which provided for the trial judge to make a recommendation as to that period. Lord Shepherd's account of the 1965 debate in the Lords was brief and this may be the primary source of the misunderstanding about the subject of the "deal". The myth that abolition was secured at the price of the mandatory life sentence is repeated in the report by Justice entitled Sentenced for Life: Reform of the law and procedure for those sentenced to life imprisonment (1996) at p. 4.
5. On this point the Committee relies - mistakenly in our view - on Lord Shepherd's recollections (Official Report [Lords] June 26, 1995 col. 536) of the circumstances surrounding the striking of the "deal" between proponents and opponents of the Bill in 1965. Lord Shepherd was Government Chief Whip in the Lords at the time. Home Affairs Committee. Murder: The Mandatory Life Sentence, First Report, December 13, 1995. para. 54. The clear impression to be drawn from Lord Shepherd's contribution (to the debate on Lord Ackner's amendment to the Criminal Appeal Bill which would have provided for appeal against a trial judge's recommendation under s.1(2) of the Murder (Abolition of Death Penalty) Act 1965) is that a deal was done between abolitionists and retentionists in which the price of abolition was the retention of the mandatory penalty. The "deal", insofar as one was made, related to the wholly distinct issue of the determination of the period to be served, Criminal Law Review [1996] whether this was to be an exclusively judicial function or a matter for the executive. (This was before the introduction of parole by the Criminal Justice Act 1967). The element of compromise was embodied in what had been the second of Lord Parker's two amendments which provided for the trial judge to make a recommendation as to that period. Lord Shepherd's account of the 1965 debate in the Lords was brief and this may be the primary source of the misunderstanding about the subject of the "deal". The myth that abolition was secured at the price of the mandatory life sentence is repeated in the report by Justice entitled Sentenced for Life: Reform of the law and procedure for those sentenced to life imprisonment (1996) at p. 4.
6. ibid. para. 54. (Present authors' italics.)
7. R. v. Secretary of State for the Home Department, ex p. Venables; R. v. Secretary of State for the Home Department, ex p. Thompson, May 2, 1996. The Home Secretary sought an expedited hearing of an appeal against the decision of Pill L.J. and Newman J. and the matter was decided at the end of July. Secretary of State for the Home Department v. V (a Minor) and T (a Minor) July 30, 1996, C.A. Woolf M.R., Hobhouse and Morritt L.JJ. The majority of the court (Woolf M.R. dissenting) held that in determining the release of a person convicted of murder sentenced to be detained at Her Majesty's Pleasure on the same basis as that of a convicted adult murderer sentenced to mandatory life, the Secretary of State acted lawfully. Lord Woolf's dissent, it might be noted, was on grounds somewhat different from those embodied in the earlier judgment of Pill L.J. and Newman J. But significantly, the court went on to indicate that in increasing the tariff from 10 to 15 years, the Home Secretary had acted unlawfully since the process by which that decision had been reached was unfair.
8. House of Lords Select Committee on Murder and Life Imprisonment. Report. H.L. 78 (1988-89).
9. Report of the Committee on the Penalty for Homicide, (Prison Reform Trust, 1993).
10. December 13, 1995.
11. ibid. para. 103. Its Second Report of May 15, 1996 (H.M.S.O. H.C. papers 42) confirms its earlier recommendation that the mandatory life sentence should be retained but recommends that responsibility for setting the tariff and taking decisions on release should be removed from the Home Secretary. The Committee argues for the final authority on the tariff being the Court of Appeal and for the Lifer Panels of the Parole Board having responsibility for release.
12. Whether such a penalty should have been regarded from the outset as a discretionary life sentence, in that it arose from the exercise of that discretion vested constitutionally in the Home Secretary as the Crown's adviser in the context of the Prerogative, is an interesting point, but to our knowledge, it remains unargued. If that proposition were to be established in the affirmative, it would have a significant bearing upon recent claims by Home Office ministers that the life sentences served by murderers are to be regarded as sui generis, to be distinguished at all times from the life sentences deriving from Statute.
13. For a definitive account of the situation before 1957 see Royal Commission on Capital Punishment 1949-53. (Cmd. 8932) (Commonly known as the Gowers Report.)
14. The Royal Commission which had been established to examine ways of restricting the death penalty said: "We began our inquiry with the determination to make every effort to see whether we could succeed where so many have failed and discover some effective method of classifying murders so as to confine the death penalty to the most heinous . . . We conclude with regret that the object of our quest is chimerical and that it must be abandoned." Para. 534. at p. 189.
15. Notably those of Timothy Evans, hanged in 1949 only for it to come to light that John Christie (hanged in 1953) who had been living in the same house had been a serial killer since 1943; Derek Bentley, hanged in 1953 when his 16 year old accomplice who had fired the fatal shot was too young to hang, and Ruth Ellis, hanged in 1955 for the shooting of her lover. For a fuller account of this period see: Morris, Terence. Crime and Criminal Justice since 1945, pp. 71-88.
16. As Gerald Gardiner, Q.C. he had been a prominent member of the National Campaign for the Abolition of Capital Punishment founded by Victor Gollancz, see Edwards, Ruth Dudley, Victor Gollancz (1989) at pp. 632-647.
17. Hansard H.C. Debs. Vol. 704. col. 930.
18. That nowhere in the Cabinet papers of the period dealing with the Silverman Bill is it possible to find any reference to either of the Parker Amendments suggests that any involvement by government managers would have been on an entirely informal basis.
19. Hansard. H. Lords Debs. Vol. 268. col. 576.
20. ibid. col. 931.
21. 1962-64. In 1966 he was created Baron Brooke of Cumnor.
22. As it turned out, the only Royal Commission in the present century that decided to abandon its task.
23. Advisory Council on the Penal System. Sentences of Imprisonment: A Review of Maximum Penalties. (H.M.S.O.) 1978. Ch. 12 at pp. 106-115.
24. In his earlier career as Attorney General, Sir Reginald Manningham Buller, Q.C., (as he then was) had not only prosecuted in a number of leading murder trials, including the unsuccessful prosecution of Dr John Bodkin Adams in 1957, but had also been a central figure on the government benches in the limitation of the death penalty by the Homicide Act, 1957.
25. Hansard H.L. Debs. Vol. 268. cols. 1219-1220.
26. Hansard H.L. Debs. Vol. 268. col. 1240.
27. ibid. Vol. 269. cols. 405-406.
28. This figure, often quoted, was based almost entirely on a population of murderers who had been reprieved from the gallows by means of the Prerogative before 1960. It follows that they would have been predominantly among the least heinous of offenders in whose cases there were powerful mitigating circumstances.
29. ibid. cols. 418-419.
30. ibid. col. 409.
31. ibid. col. 421.
32. Hansard. H.C. Debs. Vol. 718. col. 379.
33. The notion of a recommendation for a "very short" minimum period was largely a flight of fancy entertained by such lightweight contributors to the debate as Lord Stonham. In 1973 the Court of Appeal indicated that no recommended period should be for less than 12 years, Flemming [1973] 57 Cr.App.R. 524. What is interesting about the 12 year minimum established in Flemming is that the question before the court was whether it had been lawful for the trial judge to make a minimum recommendation in the case of a Young Person sentenced not under s.1(2) of the Murder (Abolition of Death Penalty) Act 1965, but on a conviction for manslaughter for which a sentence of detention at Her Majesty's Pleasure under s.53(2) of the Children and Young Persons Act 1993 was a discretionary option. Thus the 10-year recommendation of the trial judge was set aside, not on the ground of its being inappropriate, but because it was, by definition, unlawful. The recollection of the judges concerned, Lawton and Scarman, L.JJ. and May J. in response to a query by the present authors in 1996 is that the figure of 12 years arose from a discussion among the senior judges initiated by the then Lord Chief Justice, Lord Widgery. There is no appeal against a minimum recommendation made by a trial judge, Aitken [1996] W.L.R. 1076. The decision was re-affirmed in the Court of Appeal in 1995 in Leaney by Lord Taylor C.J., Mansell and Keane, JJ. [CLR 1995 at 669-671.] An attempt to amend the Bill to provide such a right failed during the passage of the Criminal Appeal Act 1995.
34. Advisory Council on the Penal System. Sentences of Imprisonment: A Review of Maximum Penalties. H.M.S.O. 1978. Paras. 258, 260 at pp. 114-115. The incidence of minimum recommendations has not significantly changed since 1978.
35. Criminal Law Revision Committee. Twelfth Report. The Penalty for Murder. Cmnd. 5184. 1973. Paras. 31-33.
36. The Penalties for Homicide. Cmnd. 5137 H.M.S.O. 1972. Para. 92.
37. Advisory Council on the Penal System, op. cit. Para. 259 at p. 114.
38. The present Home Secretary, Michael Howard has indicated that, notwithstanding articulate calls for her release, one of those convicted, Myra Hindley, must serve to the end of her natural life.
39. In the cases of the M62 bomb, the Birmingham bomb and that at Guildford, the convictions of the defendants have been subsequently quashed.
40. The Times, loc cit.