Not Saussure

December 7, 2006

The Daily Wail on life sentences… a tad misleading

Filed under: Law, press, UK — notsaussure @ 6:41 pm

The coverage in yesterday’s Daily Wail of the latest Offender Management Caseload Statistics bears some examination (front page via Mailwatch). The report begins,

Killers and rapists given ‘life’ sentences by the courts are walking free after an average of only six years behind bars, it has emerged.

The length of punishment has fallen by more than half since Labour came to power. In 1998, convicts given non-mandatory life terms – reserved for murderers – spent 14 years locked-up.

The sentence is normally given to people guilty of rape, armed robbery, manslaughter, extreme violence and serial burglary.

I’m not sure what the business about ‘non-mandatory life terms — reserved for murderers’ is about; I think a clause or two got lost somewhere, since murderers get mandatory life sentences (i.e. that’s the only sentence available to the court). Nor do I know what ‘serial burglary’ has to do with it, since that doesn’t normally attract a life sentence of any sort (it does carry a minimum 3 year sentence for the third conviction, though).

Other lifers are serving discretionary life sentences (i.e. lesser, determinate sentences are also available to the court). Defendants may receive discretionary life sentences either because the judge considered the offence so serious that only a life sentence was appropriate. Or, and this is the important bit for understanding the figures, they may get life because they fall to be sentenced under various statutory provisions — in 1999, when the men whose release discussed by the Mail would have been sentenced, it would have been Michael Howard’s Crime (Sentences) Act 1997 — which say that under certain circumstances — a second serious offence — the courts must impose a life sentence unless the judge finds exceptional reasons not to.

These sentences are not mandatory, since the judge has the option to impose them, but the legal requirement is that he must unless he finds good reason not to (‘ unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so’, in the words of the Act).

When a judge imposes a life sentence he’s also got to recommend a minimum period the prisoner must serve before he can be considered for release on licence; this isn’t the end of his sentence, of course. He can be recalled to prison administratively at an time, and certainly will be if he commits any further offences no matter how minor (111 prisoners on life licence were thus recalled in 2005). With mandatory life sentences and discretionary life sentences that are imposed not because of legal requirements but because of the particularly aggravated nature of the offence, that’s likely to be pretty hefty because the offence is particularly aggravated.

Rather different criteria apply, however, when someone receives a discretionary life sentence because that’s what Crime (Sentences) Act, or the Powers of Criminal Courts (Sentencing) Act 2000 or the Criminal Justice Act 2003 says he must receive. Then the judge has to decide what he’d have been minded to impose in the circumstances were he not obliged to impose a life sentence. This he halves, because prisoners may apply for parole when they’ve served half a determinate sentence (they don’t automatically get it if the sentence is four years or more), knocks off time spent on remand, and directs that the prisoner be not considered for release until he’s served however many years. That is, if we assume these people released on licence after 6 years were successful on their first application for release, the sentencing judge will have said that, had he been awarding a determinate sentence, it would have been 12 years.

Now, armed with all this background, what do we make of the Mail’s complaint about how ‘the length of punishment has fallen by more than half since Labour came to power’?

Well, first let’s look at the actual numbers involved. According to the Offender Management Caseload Statistics (table 10.5, p 140), in 1998, with which the Mail compares the latest figures (2005), 86 mandatory lifers were released after having served on average (both mean and median) 13 years. Eight ‘other lifers’ were released that year, having served 14 (mean and median) years. In 2005, there were 156 mandatory lifers released (14 years mean, 13 median) and 44 ‘other lifers’ (6 years mean and median). That is, we’re not talking about a great number of people and, consequently, a comparatively small number of releases can make a big difference to the figures.

I don’t offhand know what sentencing policy was in the early and mid 1980s, when these chaps released in 1998 would have been sentenced. However, the number of people sentenced to life imprisonment for all reasons has been climbing pretty rapidly since 1994, the earliest I’ve got figures for (in Sentencing Statistics 2004). Two hundred and fifty two life sentences were imposed in 1994, 394 in 1998 and 570 in 2004. The Sentencing Statistics don’t give the figures for 1999, when the people released in 2005 after 6 years would have been sentenced, but in 2000, 467 people got life sentences, of whom 57 received discretionary life sentences under the Powers of the Criminal Courts (Sentencing) Act, which replaced the Crime (Sentences) Act but retained that particular section almost verbatim. So assuming the previous year’s figures were similar, about three quarters of the prisoners thus sentenced in 1999 were released.

We don’t know from this, of course, what tariffs they, or the other folks sentenced in 1999 who weren’t released, received; they may have all received 6 year tariffs (equivalent to a 12 year determinate sentence) and been successful at their first attempt. That I rather doubt, since only just under half of all parole applications were successful that year (OMCS, table 10.2, p. 134), so unless the parole board is considerably more willing to free people serving discretionary life sentences than it is to free anyone else, the fears expressed in the Mail article by David Green of Civitas that

It looks from the figures as if the Parole Board has been quietly asked to help with the prisons crisis, and they have tried to do their best by letting out more people to take the pressure off.

are unfounded in this case.

What’s happened, I think, in these cases is that, since Michael Howard’s act introduced the idea that judges had to impose discretionary life sentences unless there was a good reason not to, people who would previously have been given determinate sentences of 10 or 12 years have been receiving discretionary life sentences with a 5 or 6 year tariff. That is, had these chaps who so vex the Mail committed their offences in the early 1990s, they’d have still only have served 5 or 6 years, but they’d shown up as people being released on parole from determinate sentences rather than life licences from life sentences. They’d still have ‘walked free after only six years behind bars’ (if you call being subject to administrative recall to prison on the recommendation of the Probation Service ‘free’) but they’d have done it under a different label.

What’s certainly indisputable is that the courts are handing down more and stiffer sentences. According to Sentencing Statistics (tables 2.2 and 2.7), in 1998, 1,973 people received sentence of more than five years and up to and including 10 years. Three hundred and seven got more than 10 years and less than life, and 394 got life. In 2004, the equivalent figures were 2,772 five to ten years, 409 more than 10 and less than life, and 570 life (of which 47 were for ‘second serious offences’).

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  1. …That is, had these chaps who so vex the Mail committed their offences in the early 1990s, they’d have still only have served 5 or 6 years, but they’d shown up as people being released on parole from determinate sentences rather than life licences from life sentences…

    Surely this is lawyer semantics? You’re not, by any chance, a QC, Notsaussure? 5 or 6 years, whichever way you cut it, is not Life, which was the general idea upon senetencing for particularly felonious conduct. Daily Blah notwithstanding, the justice system appears to be rat sh–.

    Comment by jameshigham — December 8, 2006 @ 7:46 am

  2. This is the point I was trying to make, though.

    Previously, life was, as you say, reserved for particularly felonious conduct. Someone who, back in the mid 1980s, got life for (e.g.) rape or GBH rather than a lengthy determinate sentence really had committed a particularly aggravated version of the offence, which is why he’s only just been let out.

    As from 1997, however, the purpose of the discretionary life sentence changed. It’s now given not for the actual offence but because the defendant is deemed ‘a dangerous offender’, which means he’s committed two ‘serious specified offences’ (they got the idea from the American ‘three strikes and you’re out’ policy).

    Consequently, someone convicted under the present dispensation for a serious GBH with intent — glassing someone, for example — is, if he’s done something similar before, at very real risk of receiving a discretionary life sentence as a dangerous offender. Now, heinous though glassing someone is, it isn’t, in most people’s view, anywhere near as bad, even as a second offence, as attempted murder or rape, for which someone would still normally expect to receive a lengthy determinate sentence if that was their first offence.

    When a judge awards a life sentence, he’s got to make a recommendation to the Parole Board about how long the prisoner should serve before he can be considered for release. So, in the glassing example, the judge will say something to the effect that if he wasn’t bound to give a life sentence for this attack he’d have awarded 10 years (the starting point’s normally 3 on a guilty plea for a first offence), thus making the defendant eligable for parole in 5. Consequently, the defendant in the instant case must serve at least 5 years for the puposes of retribution and deterrance, but thereafter may only be released on licence if the Parole Board deem it safe so to do (and, of course, be recalled at any time if your subsequent behaviour gives cause for concern).

    It’s been suggested the sentence would be better described in the American fashion of X to Y years, so for a first offence you might get 4 to 8 and for a second 5 to life.

    But, however it’s described, the inevitable result of changing the purpose of the discretionary life sentence was to bring down the usual length of time actually served.

    Comment by notsaussure — December 8, 2006 @ 1:18 pm

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