He huffs and he puffs

John Upton

In November last year, to the relief of the Government, Myra Hindley died. Hindley, who had served 36 years, was the most high-profile victim of a series of Administrations which, in pursuit of electoral success, have taken up tabloid-inspired positions on the sentencing of murderers. A few days later, the Law Lords delivered a landmark decision in the case of Anthony Anderson, a double murderer who had brought an application for judicial review of the terms of his sentence against the Home Office. Had Hindley lived, the Lords’ judgment in Anderson’s favour might also have led to her release from prison, where she was serving a mandatory life sentence.

The Anderson ruling took away from the Home Secretary the power to make the ultimate decision as to how long a mandatory life prisoner should serve; instead, it became one for the courts and the parole board. It was this judgment, based on the provisions of the Human Rights Act 1998, together with the subsequent tabloid outrage, that provoked David Blunkett’s latest strike against the criminal justice system. He announced that legislation would soon be introduced severely to restrict judicial participation in determining the length of sentences for murderers, a group whose harsh treatment is considered by the Labour Party far too valuable a political currency to be left to the perceived lenience of the judiciary.

In April this year, Blunkett proposed that Parliament should impose a ‘framework’ for judges to follow when determining how long an offender should spend in prison. The legislation will say that for the ‘sexual, sadistic’ murder of children or terrorist murder, life will mean life in all cases, as opposed to the current practice of a minimum 20-year term. For the murder of a policeman, a prison officer or for racially motivated murder, the minimum term will be 30 years. Other murders will have a 15-year starting point, ‘on which judges can build’.

These fixed terms of imprisonment are a direct snub to Lord Woolf, the Lord Chief Justice, who last year published a directive for judges recommending 15 years as the minimum term for the most serious categories of murder. The proposed new legislation allows judges only a vestigial role. If they wish to deviate from the new framework, they will have to give a full justification of their decision in open court – a kind of Maoist shaming ritual. The effect of the new law will be that individual cases will cease to be treated as such: murderers will be condemned as a class.

On one level, Blunkett’s crass proposals can be seen simply as giving Sun and Express readers what they want. But that would be to let him and New Labour off the hook. More significant and sinister issues have become apparent during the course of this dispute. New Labour didn’t get where it is today by being soft on those who offer resistance to the Project. In the absence of an effective Opposition with which to brawl, the Government is picking fights elsewhere; and the judiciary is being punished for daring to entertain jurisprudential notions which do not accord with those endorsed by the Sun. We are witnessing the extraordinary spectacle of a Labour Home Secretary legislating against judges because they are too liberal.

The Anderson case is worth considering in some detail. As well as demonstrating Blunkett’s love of headlines, it is one of the most conspicuous illustrations we have had so far of the developing antagonism between two of the three components of our unwritten constitution: the judiciary and the executive. In passing, and most distastefully, it also shows the continuity between the policies of the grotesque Home Secretaries of the Thatcher years – Brittan, Waddington, Howard et al – and those of the nominally left-wing incumbent.

As a crime, murder is rarely examined with dispassion, and it will come as no surprise to discover that it involves complexities, ignored by the Home Secretary and the tabloid press, which are crucial to any informed discussion of the role of judges and politicians in dealing with those convicted of homicide. According to the legal definition, a murderer does not need to have intended to kill in order to commit murder. He or she (though murderers are almost always men) may even have intended not to kill, but only to cause serious physical injury. The category of ‘murder’ includes acts which vary hugely in their levels of culpability: from the premeditated ‘sexual, sadistic’ killing of a child to hitting over the head with a chair someone who dies a month later because of an undiagnosed weakness of the skull; from the contract killing of an organised crime boss to the administration of an overdose of drugs to a terminally ill patient. All these actions can attract a mandatory life sentence.

This is in sharp contrast to the sentencing regime available to judges for those found guilty of a range of offences – manslaughter, rape, grievous bodily harm – which attract the other form of life sentence, discretionary life. When, as is frequently the case, a murder charge is reduced to one of manslaughter, the trial judge may select from a range of sentences, including a fixed prison term, a hospital order or life imprisonment. Those who kill and are convicted of manslaughter by reason of diminished responsibility, for example, are no less dangerous than those convicted on a full murder charge, yet judges have discretion in one instance and not in the other. In view of anomalies such as this, in 1989 the House of Lords Select Committee on Murder and Life Imprisonment recommended the abolition of the mandatory sentence for murder.

The full text of this essay is only available to subscribers of the London Review of Books.

You are not logged in