Not Saussure

March 10, 2007

The Lord Chief Justice and life sentences

Filed under: Law, Politics, UK — notsaussure @ 1:58 am

It’s perhaps not surprising that the warning from Lord Phillips, the Lord Chief Justice, that our prisons will eventually be ‘full of geriatric lifers’ as a result of changes introduced by the Criminal Justice Act 2003 is the aspect of his speech that’s received the most publicity. It’s a bit of a shame, though, that the press coverage hasn’t really explained the context of the remark, which as part of wider-ranging discussion of the general problems with the law on murder and manslaughter as it now stands, and of some of the anomalies and injustices that this causes.

The warning is a perfectly reasonable one; the CJA 2003 fixes the minimum period someone given a mandatory life sentence for murder must serve before being considered for release on licence (the ‘tariff’), depending on various mitigating and aggravating factors. The starting point is 15 years (equivalent to a 30-year determinate sentence), then starting at 30 years (equivalent to a 60-year sentence)

if the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is particularly high

and then, for the most serious cases, a whole life order.

Part of the LCJ’s complaint is that this makes it very difficult for judges to sentence appropriately, because murder isn’t so clear-cut an offence as one tends to think. We tend to think of murder as A intending to kill B, and carrying out that intention. It’s not as simple as that, though; A is guilty of murder if he kills B, intending to inflict really serious (but non-fatal) harm on him.

To take an extreme example, if A hits B in the face, intending to break his nose, and B falls to the ground as result of the blow, hits his head against the curb and dies as a result of a brain hemorrhage, the question of whether it’s murder (mandatory life sentence, starting tariff of 15 years) or manslaughter (sentence — determinate or indeterminate — up to the judge, following the Court of Appeal and Sentencing Council guidelines, and probably with a tariff considerably less than 15 years) depends on whether the jury think a broken nose constitutes really serious harm.

For an example of some of the illogicalities in this, consider a non-fatal attack. Smith hits Jones over the head several times with a baseball bat. If Jones survives the attack, then Smith’s intentions are very important — he’s trying to kill him, then it’s attempted murder, obviously. If he’s not trying to kill him, it’s GBH with intent, since if you hit someone about the head several times with a weapon, the law assumes you intend to do him a really serious injury. If, however, Jones dies, then Smith’s intentions are neither here nor there; it’s murder, no matter what he intended.

This, however, is further complicated by the partial defences of provocation and diminished responsibility, both of which can result in Smith being convicted not of murder but of manslaughter, even if the jury finds that he did intend to kill Jones (remember that the fatal punch to the nose can well turn out to be murder, even though there was no intent to kill).

Much of Lord Phillips’ speech is a discussion of the way the law on murder and manslaughter have developed over the years, as the courts have tried to grapple with what is and isn’t intent, provocation or diminished responsibility, and much of the rest if it is a sympathetic, though not uncritical, examination of the proposals advanced by the Law Commission in their report last year, commissioned by Parliament, for reforming and clarifying the law on Murder, Manslaughter and Infanticide (pdf).

This recommends introducing First and Second Degree Homicide, in addition to Manslaughter, and altering various defences. Under their proposals, First Degree Murder (defined as causing death with the intention to kill or with the intention with an intention to cause serious injury whilst being aware of a serious risk of causing death) would continue to attract a mandatory life sentence, while Second Degree
Murder and Manslaughter would attract a discretionary life sentence, a determinate sentence or an Indefinite Sentence for Public Protection.

I really would suggest reading Lord Phillips’ speech to see how the courts have grappled with trying to apply precedent to the complexities of real life situations, and then how subsequent courts have, in turn, tried to sort out the anomalies thus created. For example, the Homicide Act 1957 provided, of provocation, that

Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.

In 1978, the House of Lords considered the case of Camplin; Lord Phillips explains,

There the defendant was a 15 year old boy. He killed a man by hitting him over the head with a chapati pan. The victim had forcibly buggered the boy and then laughed at him. The trial judge had directed the jury that they must consider what effect this would have had on a reasonable man, not a reasonable boy. The jury convicted the boy of murder. The Court of Appeal allowed his appeal and the House of Lords agreed.

He goes on to explain that Lord Diplock, giving the judgement,

went on to hold that the reasonable man referred to should be explained by the judge to the jury as:‘a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused’s characteristics as they think would affect the gravity of the provocation to him’; and that ‘the question is not merely whether such a person would in like circumstances be provoked to lose his self control but also whether he would react to the provocation as the accused did.’

This sounds fair enough, perhaps, and certainly so for the 15-year-old boy, but

In 1995 this approach was taken rather further than Lord Diplock might have expected in the case of Morhall . The victim had been criticising the defendant for being addicted to glue-sniffing and the defendant reacted by stabbing him. The House of Lords held that the question of provocation had to be considered by reference to the effect that it would have had on the reasonable person with the characteristic of being addicted to glue-sniffing.

For some more problematic examples, try these, from the Law Commission’s summary of their recommendations (pdf); at present, which is murder, which manslaughter and which neither?

  1. Smith has a grudge against Jones. In the middle of the night, Smith stuffs petrol and lighted newspaper through Jones’ front door when Jones is asleep upstairs. Jones is killed in the fire. Smith says he only intended to frighten Jones, although he realised Jones’ life was in danger.
  2. Smith decides to rob Jones, an elderly and frail-looking man. Smith punches Jones in the face as he is going down some stairs, and steals his wallet. Jones dies of head injuries sustained in the fall down the stairs. Smith says he did not intend to do serious injury to Jones, although he was aware of the possible dangers if Jones were to fall and hit his head.
  3. Smith lives with Jones. Jones is a violent man who frequently beats Smith when he comes home from the pub, threatening Smith with death if she reports this to anyone. One night, having come home from the pub, Jones says he will beat Smith ‘to within an inch of her life’, when he has had a rest to recover his strength. Smith fetches a knife from the kitchen and stabs Jones through the heart while he is asleep.
  4. Jones, Smith and Brown decide to rob someone. They kick a passer-by to the ground, and start punching him until he agrees to reveal the pin number for his credit card. Suddenly, Brown produces a knife and stabs the passer-by to death. Jones and Smith say that, although they knew Brown sometimes carried a knife, they did not at any point consider whether he would use it in the robbery. Brown is obviously guilty of murder. What about Jones and Smith?
  5. Brown is a bank manager. He opens his door at home to find himself confronted by a gun man. The gunman forces Brown inside and says he will kill all Brown’s children unless Brown reveals bank access codes. Brown gives the gunman the codes even though he realises that the gunman’s accomplices may kill during the robbery, which they do.

1 and 2: Manslaughter; 3 and 5: Murder; 4: Robbery.

Lord Phillips will doubtless be accused of being yet another ‘liberal judge’ who wants to be ‘soft on murderers’. It’s not that, I think. Rather, when they come to sentence, for murder or anything else, judges find themselves dealing with real people in real situations. They’re much better placed — and far more used so to doing, it should be remembered — to look at the actual circumstances of the offence and to balance the harm caused against the degree of culpability (in terms of what harm was actually planned or foreseen, of how much was because of pure evil and how much stupidity or a momentary loss of control) than are politicians dealing with hypothetical cases when they start passing mandatory minimum sentences.

Because of my job, I see judges in action a lot more than do most people, and I have to say that, in general, I trust them to reach fair, considered and just decisions about the disposal of criminals than I do most MPs and any Home Secretary I can remember.

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  1. Erm? I’m coming back to you on this (and I have blogged it), but you say, “I really would suggest you read Lord Phillips’ speech”, and I was unable to find the link in the post. I can probably find it by Google, I just wondered if I had missed it. I am only just discovering the art of inserting links in the text.

    NS writes: That was a bit stupid of me — I forgot to include the link to the speech.   Sorry about that!   Now fixed; thanks for pointing it out and thanks to Obsolete for supplying the link (below).

    Comment by jailhouselawyer — March 10, 2007 @ 2:00 pm

  2. Here it is, in case you couldn’t find it jl:

    Excellent post as usual; was to be expected that the tabloids have done their best to distort Phillip’s speech.

    Comment by . — March 10, 2007 @ 8:01 pm

  3. Thanks for the link. Some while back I did actually read the Law Commissions recommendations to introduce second degree murder.

    I think if I was the editor of the Guardian and a journalist produced such an article, and I had read the LCJ’s speech I would want to know why several of the main points had not been reported.

    Given that the law must be certain, Phillips paints a picture of uncertainty. Judges unable to judge. Law Commission fettered by the government, they should have taken it to the High Court by way of judicial review. I have heard of jury rigging, here it implied that not only the CofA was rigged, but also the HofL. And, when it came to asking the jury to enter the mind of the accused, I had this horrible vision of Michael saying “Are you thinking what I am thinking?”.

    I am going to give it some more thought. And get back to you on this speech.

    From a personal perspective, I have some observations to make. There is an assumption that killing takes a lot, but it is easy to commit. It is harder not to do it. Anything, anyone if the strain is great enough can snap. Again, it is the control which is hardest.

    In my case, there was a degree of provocation. Not that I claim it was sufficient on its own for the killing, therefore, it cannot be justified and I have never sought to justify my actions. However, if I was in my right mind it would not have occurred, hence the manslaughter on the ground of diminished responsibility at the time the offence was committed.

    Two things emerged here. Firstly, it was never established how much mental responsibility attached to me under the s.2 defence. Secondly, whilst the balance of my mind was disturbed at the time of the offence this was not present by the time I was sentenced.

    The authorities did not know why I had acted as I did, and sought psychiatric reports. They came up with this rather vague term psychopath to explain my behaviour. It took 23 years for them to discover that I wasn’t after all! I am autistic, highly functioning Aspergers Syndrome. I was assessed as being semi-illerate, and below average intelligence. I am very literate, but almost totally innumerate and have an IQ of 155.

    The police doctor at the time took intimate samples, scrapings under my finger nails, blood samples, head hair and pubic hair, and a swab from my mouth. He did not ask me one question in relation to the offence, and yet in his report he opined that I showed no remorse and this was picked up by other report writers and they all wrote the same! I can only assume he based it on my demeanor. If he did, like the other assessments, I believe that he got it wrong.

    My 15 year tariff was based on future dangerousness. I don’t like such a hazy concept to justify incapacitation for longer than is necessary. In my 35 years in prison, I have not met one person I would describe as dangerous. In my view, it is the situation which can be dangerous. For example, a car parked on a hill without brakes is not dangerous if a brick is under its wheel. Remove the brick and the control is gone. It could just roll to a stop at the bottom, or it could run into somebody or something like a shop window. The car is not dangerous, per se, it needs other elements.

    A problem with labeling is that I remember a man who was told by a judge that he was very dangerous. He arrived at the newly opened Frankland Prison and announced that he was going to put it on the map. This made some prisoners nervous. I recall him walking past my cell and looking in, I had 3 bed legs slotted into each other and nuts and bolts securing them, 24-36 inches of steel bar which I banged for effect on a wooden table top. He went in search of an easier victim.

    This chap I knew was getting paranoid, and the old joke, that doesn’t mean that someone isn’t out to get me, springs to mind. I was cleaning the landing, and a Senior Officer asked my opinion of Buffalo Bill, as he was called, because he looked just like the film image of him. I gave my honest opinion, I said he would hurt someone very bad very soon, or someone would hurt him very bad very soon.

    Approximately, 10-15 minutes later the alarm bell sounded. The paranoid chap had knocked out Buffalo Bill on the sports field using a PP9 battery in a sock. When the Senior Officer returned from the scene, he said, you knew that was going to happen. I replied, that I did not I had just assessed the situation correctly. I just did not know who was going to win.

    The paranoid chap, he was serving 3 life terms, with a minimum recommendation that he serve 30 years. After 10 years, I guess he just decided that he did not want to face another 20 years of the same and hung himself. That I had not assessed, because each person serves their sentence differently. I have seen those who prisoners thought were too strong to take their own life, do it, and other who were predicted to top themselves pull through.

    There is a lot more to all of this than meets the eye. The public need to be made more aware of this, as do the judges and politicians and others working within the criminal justice field.

    Comment by jailhouselawyer — March 11, 2007 @ 2:54 am

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