20th September 2019

You may have read in the national press recently that the Prime Minister, Boris Johnson, is planning on announcing planned changes to the criminal law aimed at ensuring that the worst offenders spend longer in prison.

The changes could be achieved through secondary legislation which would not require Parliament to pass a new Act.

Amongst the proposals are plans for “life means life” sentences for those convicted of murdering very young children aged 4 and under.

With a General Election possibly around the corner, this would no doubt be a vote-winner for the PM, and it is arguably yet another example of politicians deferring to a “tough on crime” rhetoric shortly before voters go to the polls.

The reality is, that life can already mean life under the existing law. Schedule 21 para 4 of the Criminal Justice Act 2003 lists the kind of cases where a whole life order would be the “starting point”.

However, the existing law does have certain limitations. Firstly, a “starting point” is just that. A sentencing Judge can move away from it and impose a lesser minimum term after taking into account mitigation and other factors. Secondly, a person convicted of murdering a child would not face a starting point of a whole life order unless the murder involved abduction of the child or was sexually or sadistically motivated. The PM plans on expanding the use of whole life orders.

This might look like an attractive proposition to many voters. However, it raises concerns. Why is the killing of a 4-year-old automatically more serious than the killing of a 5-year-old? Such arbitrary distinctions are unhelpful. Under the proposals, a particularly egregious murder of a 5-year-old would attract a lesser starting point than a murder of a 4-year-old without any aggravating factors. Murders of such young children are commonly committed by parents in “baby shaking” cases, which can involve a sudden loss of temper. Such cases should surely be regarded as less serious than a sexually or sadistically motivated murder of a child, but under Johnson’s proposals, they would have the same starting point.

Other proposals include:

  • An end to automatic release from prison half-way through an offender’s sentence with violent and sexual offenders spending two-thirds of their sentence in custody, and moving away from “early release” from prison to “earned release” with risk assessment for violent and sexual offenders. Does this not afford the prisoner less time to re-integrate into society?
  • Introducing “sobriety tags” where offenders with alcohol problems must wear a device which can detect alcohol in their sweat and alert the authorities that the person has breached the order by consuming alcohol. In many cases, is this not likely to set the person up to fail? Alcoholism is a health condition; should it not be treated as such? The proposals could see a person arrested simply as a result of having a drink even if no actual offence is committed as a result.
  • Expanding the scope of crimes that can be reviewed under the Unduly Lenient Scheme which allows members of the public to ask the Attorney General to look at a sentence imposed and, if it is arguably unduly lenient, refer it to the Court of Appeal for a potential increase. Does this further erode the trust and sanctity of the sentencing Judge’s discretion and decision-making power?

It appears that all the PM’s proposals will result in more people being sent to prison, and more people being in prison for longer. What does this actually achieve? Whilst this might appeal to voters, it does nothing to address the substantial under funding our criminal justice system has suffered over this past decade. As we move to fill up our dangerous and squalid prisons and spend money building new ones, victims and defendants are being denied justice, and there is nothing being done to promote or invest in a culture of rehabilitation in our sentencing practices.

Do we really want to abandon a balanced and fair system that was once the envy of the world, to adopt a cruel and punitive regime? The criminal justice system should be respected and not manipulated by politicians or the tabloid press to win votes and sell newspapers.

We, as a society, should be careful not to forget about the “IPP” scandal from recent years. There are about 4000 prisoners still serving a sentence of indefinite imprisonment many years after their original minimum term has lapsed. This uncertainty and absence of hope has a catastrophic effect on the lives of those prisoners and their families, whilst institutional failures and inadequacies prevent any realistic means of securing release.

With this shameful chapter of our county’s legal history tragically not yet resolved, should we really be pushing to lock even more people up for even longer? The PM’s bid for votes seems to represent a dangerously backward step, and a further erosion of liberty and freedom.

Blog by Mark Richardson, Solicitor