Imprisonment for life is reserved for the most serious offences and offenders.
For an offence of murder, adult defendants aged 21 or over must receive a sentence of life imprisonment. In other cases, where the individual offence carries a maximum of life, a sentence of imprisonment for life is discretionary.
There are two further situations in which a judge is likely to consider imposing life imprisonment: first, where the defendant is assessed as a dangerous offender and the offence itself justifies life, or where the defendant is convicted of what is known as a serious specified offence and the defendant has a previous conviction for such an offence.
LIFE SENTENCES FOR MURDER
For defendants aged 21 or over life imprisonment is the only sentence that can be imposed for murder. Defendants convicted of murder aged 18-20 are sentenced to custody for life and juveniles (under 18s) are sentenced to detention at Her Majesty’s pleasure.
The Minimum Term
Life rarely means life. When passing a life sentence a judge usually imposes a minimum custodial term that must be served before an application can be made for release on parole; once released a defendant will be on licence for the remainder of his/her natural life and may be recalled to prison if considered a risk to the public (this may involve committing a further offence but does not need to).
In the most serious cases of murder a whole life order can be imposed, meaning life does mean life. In such situations there will be no minimum term imposed and the prisoner will not be eligible for release at any time. A prisoner in this situation can only be released by the Home Secretary on compassionate grounds (e.g. due to very poor health).
The Criminal Justice Act 2003 sections 269 to 277 and Schedules 21 and 22 contain guidance on setting the minimum term in murder cases. The approach to be taken by judges when dealing with such cases is contained in Criminal Practice Directions 2015 Division VII: Sentencing (M.1 onwards).
Judges follows 3 steps:
STEP 1 – Determine the Starting Point
Schedule 21 sets out the general principles that must be adopted by judges in deciding on murder case sentences. The judge has to reach a starting point and then adjust this up and down in accordance with the mitigating or aggravating features in the case. There are 5 starting points: ‘whole life’, 30 years, 25 years, 15 years or 12 years.
Whole life order starting point – the ‘exceptionally high' seriousness category
The starting point is a whole life order where the seriousness of the offence (or of the offence and other associated offences) is ‘exceptionally high’ and the defendant was aged 21 or over when the offence was committed. Cases that would normally fall into this category include: (a) the murder of two or more people where each murder involves a substantial degree of premeditation/planning, abduction of the victim, or sexual or sadistic conduct; (b) the murder of a child involving the abduction of the child or sexual or sadistic motivation; (c) murder committed to advance a political/religious/racial/ideological cause; (d) murder committed by a defendant with a previous conviction for murder.
30 years starting point – the 'particularly high' seriousness category
For cases that do not fall within the whole life category (because the seriousness of the offence/associated offences is not exceptionally high or the defendant was not aged 21 or over when the offence was committed) but the seriousness of the offence and any associated offences was ‘particularly high’ and the defendant was aged 18 or over when the offence was committed, the starting point for the minimum custodial term in a murder case is 30 years.
If they did not fall into the ‘exceptionally high’ category, cases within the ‘particularly high’ category would normally include: the murder of a police/prison officer in the course of his duty; use of a firearm or explosive; a murder carried out for gain (e.g. in the course of robbery, for payment or in expectation of gain as a result of death); murder to interfere with/obstruct the course of justice; murder involving sexual or sadistic conduct, murder of two or more persons; a murder that is racially/religiously aggravated or aggravated by sexual orientation, disability or transgender identity; a murder that would be considered ‘exceptionally high’ but for the fact the defendant was under 21 at the time the offence was committed.
25 years starting point – the 'weapons' category
For cases that do not fall within the ‘exceptionally high’ or ‘particularly high’ categories, the starting point is 25 years if the defendant was 18 or older when the offence was committed and the defendant took a knife or other weapon to the scene intending to commit any offence or have it available for use as a weapon and used it in committing the murder.
15 years starting point – the 'usual' starting point for 18+ yrs defendants
For cases that do not fall within the ‘exceptionally high’ or ‘particularly high’ categories, and for cases that do not fall within the ‘weapons’ category, the starting point for defendants who were aged 18 or over when the offence was committed is 15 years.
12 years starting point – the starting point for juveniles
Defendants who were under 18 when the murder offence was committed have a starting point of 12 years. This is so even in particularly serious cases, but of course starting points will be adjusted in line with aggravating and mitigating circumstances.
STEP 2 – Adjust the starting point in line with any additional Aggravating or Mitigating Factors
Aggravating and Mitigating Factors
"CONSIDERATION OF AGGRAVATING FACTORS COULD MOVE A CASE INTO A WHOLE LIFE ORDER CATEGORY FROM A LOWER CATEGORY (FOR OFFENDERS WHO WERE 21 OR OVER WHEN THE OFFENCE WAS COMMITTED) AND CONSIDERATION OF MITIGATING FACTORS COULD BRING THE SENTENCE DOWN TO A RELATIVELY LOW MINIMUM TERM"
Having established the correct starting point, the sentencing judge in a murder case must then go on to consider the aggravating and mitigating factors set out in Schedule 21 of the Criminal Justice Act 2003. A judge has to be careful not to ‘double count’ by, for example, taking a factor into account as an aggravating factor which has already been taken into account in Step 1 to determine the starting point.
Consideration of aggravating factors could move a case into a whole life order category from a lower category (for offenders who were 21 or over when the offence was committed) and consideration of mitigating factors could bring the sentence down to a relatively low minimum term (well below the starting points). The final sentence depends on the precise circumstances of the case and every case is different.
Aggravating factors in Schedule 21 include: a significant degree of planning or premeditation; a particularly vulnerable victim due to age or disability; mental or physical suffering inflicted on the victim before death; abuse of a position of trust; use of duress or threats against another person to facilitate the commission of the offence; the victim was providing a public service or performing a public duty; concealment, destruction or dismemberment of the body.
Mitigating factors in Schedule 21 include: an intention to cause serious bodily harm rather than to kill; lack of premeditation; the defendant suffered from a mental disorder or mental disability which (although not establishing the partial defence of diminished responsibility) still lowered his degree of culpability; provocation(for example, by prolonged stress); the fact that the defendant acted to any extent in self-defence or in fear of violence; a belief by the defendant that the murder was an act of mercy; the age of the defendant.
Step 3 –Previous Convictions, Offences committed on Bail, Guilty Pleas and Time Spent on Remand
The third step in the process is to consider:
(1) the defendant’s previous convictions (if any);
(2) whether the offence was committed when the defendant was already on bail for another offence;
(3) whether the defendant pleaded guilty and, if so, at what stage in the proceedings; and
(4) time spent on remand in custody or on bail with a curfew condition prior to sentence.
Previous convictions can be treated as an aggravating factor in a sentence taking into account the nature of the previous offence and its relevance to the current offence, as well as how recent the previous offence was. (See s.143(2) Criminal Justice Act 2003.) For example, previous convictions for carrying a knife and using violence are likely to be treated as an aggravating feature in a street stabbing murder case. On the other hand, previous convictions for benefit fraud in the same case are likely to have no relevance at all and therefore to be disregarded.
Defendant on Bail when Offence Committed
If the defendant was on bail when the offence of murder was committed, this will be taken into account as an aggravating factor. (See s.143(3) Criminal Justice Act 2003.)
Guilty Plea in Murder Cases
Where the case clearly merits a whole life order, a guilty plea will not change this, albeit a guilty plea is one of many factors the court will take into account in determining whether a whole life order should be imposed.
In cases where a whole life order is not imposed, the Sentencing Guidelines on Reduction in Sentence for a Guilty Plea provide that if a defendant has pleaded guilty, this should be taken into account in determining the starting point. For an early guilty plea, this can reduce the starting point by up to 5 years or ⅙, whichever is less. A late plea of guilty is likely to receive a maximum discount of 1/20 (5%).
Time Spent on Remand
Where defendants have spent time in custody prior to trial or sentence, or been on bail with a qualifying curfew condition, this should be taken into account by the judge as an appropriate reduction when setting the minimum term.
Arriving at the minimum term to be served
"THE JUDGE SHOULD CLEARLY EXPLAIN HOW THE MINIMUM TERM HAS BEEN REACHED"
Having moved through Steps 1 to 3, the judge will now have arrived at the minimum term to be imposed. In setting the minimum term the judge should clearly explain how the minimum term has been reached during his/her sentencing remarks. After serving this minimum term the defendant will be able to apply for release on parole.
LIFE SENTENCES FOR DANGEROUS OFFENDERS
By s.225 of the Criminal Justice Act 2003, a life sentence must be imposed where:
(1) a defendant aged 18 or over has been convicted of a serious specified offence which carries a maximum of life imprisonment;
(2) the court considers that the defendant is a dangerous offender (see below); and
(3) the court considers that the seriousness of the offence (alone or in combination with associated offences) is such as to justify imprisonment for life.
Such a life sentence is intended for dangerous offenders who have committed offences of the utmost gravity.
When a life sentence is imposed in such circumstances, the judge will impose a minimum term that the defendant must serve before being eligible for release. Once the minimum term expires the defendant can apply for parole and will be released if deemed not to pose a risk to the public. Once released the defendant remains on licence for life. This means (s)he is liable to be recalled in the event of failing to abide by any conditions of release or if (s)he is considered a risk to the public during this period.
What is a serious specified offence?
A serious specified offence in this context is an offence contained in Parts 1 or 2 of Schedule 15 to the Criminal Justice Act 2003 which is punishable with imprisonment for life, such as grievous bodily harm with intent (contrary to section 18 of the Offences Against the Person Act 1861), robbery (contrary to s.8(1) of the Theft Act 1968) or rape (contrary to s.1 of the Sexual Offences Act 2003). Note that there are many offences within this schedule that do not carry life imprisonment.
How is dangerousness assessed?
In reaching a decision about whether a defendant is dangerous (i.e. a significant risk to members of the public of serious harm by committing further specified offences) the judge will consider those matters set out in s.229 of the Criminal Justice Act 2003 – this means the judge must consider all the information available to him/her about the nature and circumstances of the offence; the judge may also consider the nature and circumstances of any other offences the defendant has committed (whether in the UK or anywhere else), may take into account any information about any pattern of offending disclosed by the current and past offences and may consider any other information available to the court about the defendant.
LIFE SENTENCES FOR DEFENDANTS WITH A PREVIOUS CONVICTION FOR A LISTED OFFENCE
Section 224A of the Criminal Justice Act 2003 provides that where a defendant aged 18 or over is convicted of an offence listed in Schedule 15B Part 1 to the Criminal Justice Act 2003 and the judge considers that the offence would merit a custodial sentence of at least 10 years, the judge must impose a life sentence if the defendant has a previous conviction for any offence listed in Schedule 15B of the Act (for which (s)he received a sentence of at least 10 years, an extended sentence with a custodial term of at least 10 years, or a life sentence with a minimum term of 5 years) UNLESS the judge considers that there are particular circumstances which relate to the offence, the previous offence or to the defendant which would make it unjust to pass a life sentence in all the circumstances.
What is a listed offence?
A listed offence is one contained in Schedule 15B of the Criminal Justice Act 2003. Listed offences include manslaughter, soliciting murder, wounding with intent and causing grievous bodily harm with intent (s.18 Offences Against the Person Act 1861), possession of a firearm with intent to endanger life, using a firearm to resist arrest, carrying a firearm with criminal intent, robbery (where the defendant was in possession of a firearm or imitation firearm), indecent images of children offences, certain terrorism offences (under sections 56, 57 and 59 of the Terrorism Act 2000, sections 47, 50 and 113 of the Anti-Terrorism, Crime and Security Act 2001 and sections 5, 9, 10 and 11 of the Terrorism Act 2006 ), rape, assault by penetration and numerous sexual offences relating to child victims or victims with a mental disorder, causing or allowing the death of a child or vulnerable adult). Schedule 15B listed offences include attempts to commit these offences, as well as conspiracy to commit such offences or murder, or incitement to commit such offences or murder, encouraging or assisting offences (under Part 2 of the Serious Crime Act 2007) where the offence intended or believed to be committed is a listed offence or murder, and aiding, abetting, counselling or procuring the commission of a listed offence.
In passing a life sentence, the judge will impose a minimum term in the same way as referred to above.