The classification of offences and matters relating to transfers for trial, summary trial, and trial on indictment are dealt with in Chapter 9.
Until 1986, England was one of only a few countries that allowed the police to prosecute rather than hand over this task to a state agency such as the office of the district attorney in the United States, or the procurator fiscal in Scotland (an office established in the fifteenth century). The Crown Prosecution Service (CPS) was established by the Prosecution of Offences Act (POA) 1985. As a result the police now play only a limited part in prosecutions beyond the stage of charging the suspect. This chapter examines the workings of the state prosecution service.
The CPS has come under significant criticism in recent times for allegedly poor performance. In December 2015, Alison Saunders, the Director of Public Prosecutions, was accused of living in a bubble after admitting that she goes to court ‘every few months, probably’ (The Times, 16 December 2015). Appearing before the House of Commons’ justice select committee, Ms Saunders told MPs: ‘I go as much as I can, which is not as often as it should be. I will pop up to court every now and again.’ Philip Davies MP said that she was complacent about the state of magistrates’ courts. Mr Davies said that in some instances prosecution lawyers were ‘literally reading out in court’ case files ‘they’ve never even seen before’. Ms Saunders said that despite a 23 per cent cut in resources over three years, the recent public spending round had ensured that the Crown Prosecution Service had received the extra £4.4 million it needed to tackle terrorism cases.
The police have power to take the charging decision in relation to summary offences, retail theft suitable for trial in the magistrates’ court and most either-way offences where a guilty plea is anticipated and that are suitable for sentence in the magistrates’ court (para 15, DPP’s Guidance on Charging 2013, 5th edn, May 2013 (revised arrangements)). It is a prosecutor who takes the charging decision in more serious or potentially disputed cases. However, the initial decision to divert the suspect from prosecution, charge or refer lies with the police decision-maker, as does the decision to drop a case where there is insufficient evidence. In 2015–16, the CPS took the pre-charge decision in around one-third of cases (Crown Prosecution Service, Annual Report and Accounts, 2015–16). The basis for charging is fully explained in the DPP’s Guidance on Charging 2013.
Before 1986, there were five different forms of prosecution, those by:
Today, the first three of the above list are conducted by the CPS. The CPS liaises where necessary with other public bodies which have the power to prosecute offenders: Attorney General’s Office; Civil Aviation Authority; Department for Business, Energy and Industrial Strategy; Department for Work and Pensions; Environment Agency; Financial Conduct Authority; Food Standards Agency; Gambling Commission; Health and Safety Executive; Maritime and Coastguard Agency; Competition and Markets Authority; Office of Rail Regulation; Serious Fraud Office; and Service Prosecuting Authority.
The move to establish a CPS was precipitated by a report from JUSTICE, the British section of the International Commission of Jurists, in its 1970 Report, The Prosecution Process in England and Wales. It argued that the police were not best suited to be prosecutors because they would often have a commitment to winning a case even where the evidence was weak, given the investment in a case that its investigation invariably represents. They were also not best placed to consider the public policy aspects of the discretion not to prosecute. The police were firmly opposed to such a change. They argued that statistics showed that the police were not given to pursuing cases in a way that led to a high rate of acquittal. They also showed that in cases involving miscarriages of justice, the decision to prosecute had been taken by a lawyer.
The question was referred to the Philips Royal Commission on Criminal Procedure, which judged the then existing system according to its fairness, openness and accountability. It proposed a new system based on several distinct features, including the following:
The POA 1985 established a national prosecution service under the general direction of the DPP. The 1985 Act gives to the DPP and the CPS as a whole the right to institute and conduct any criminal proceedings where the importance or difficulty of the case make that appropriate (s 3(2)(b)). This applies to cases that could also be started by the police or other bodies like local authorities. It can also, in appropriate circumstances, take over and then discontinue cases. The CPS relies on the police for the resources and machinery of investigation.
The CPS uses a mixture of employed staff and agents, that is, lawyers in private practice working for the CPS on a fee-for-case basis. At the end of March 2016, the CPS employed 5,915 people, with over 93 per cent being engaged in, or supporting, front-line prosecution activity. In 2015–16, 29.6 per cent of half-day sessions in magistrates’ courts were covered by agents. Over that period the CPS prosecuted approximately 630,000 cases in the magistrates’ courts and 99,000 in the Crown Courts. It secured 530,199 convictions, representing an overall success rate of 83.1 per cent, the magistrates’ courts’ rate was 83.8 per cent and the Crown Court 79.2 per cent.
According to its 2015–16 annual report, the Service has experienced a significant change in the profile of cases prosecuted. During the period 2009–16. Thus although the overall number of cases prosecuted in 2015–16 fell to 637,798 from 664,493 in 2014–15), there were increases in cases in the following areas:
The police have a very significant discretion as to what to do when a crime has possibly been committed. They could turn a blind eye, dispose of the case out of court or, in conjunction with the CPS, charge the suspect, in which case they must decide what is the most appropriate charge or charges commensurate with the facts and seriousness of the alleged conduct. Environmental health officers, the Health and Safety Executive and Environment Agency inspectors, as officers statutorily charged with investigative powers, are in a similar position.
As is very cogently argued by McConville, Sanders and Leng in The Case for the Prosecution (1991), prosecution cases are constructed from the evidence and testimony of many people including lay witnesses, victims, the police, CPS lawyers and expert witnesses. Each of these parties is fallible and prone to perceive events in line with their own sorts of experience. The net result of this is that the prosecution case is normally nothing more than an approximation of ‘the truth’. In crude terms, we move further towards an explanatory account if we understand truth as proof. In their preface to Reconstructing Reality in the Courtroom (1981), Bennett and Feldman asserted that ‘the use of stories to reconstruct the evidence in cases casts doubt on the common belief about justice as a mechanical and objective process’. Stories, their argument runs, serve as tools in the task of selecting from a glut of information what material will in fact be presented as evidence. Bennett and Feldman also contend that narrative devices like stories also serve to plug gaps. William Twining has, however, doubted this account of the somewhat subjective cherry-picking of stories in putting together a case. In particular, Twining argues, facts in issue, materiality, relevance, burdens of proof and presumptions, are peculiarly lawyers’ concepts. Coupled with these, he continues, is the advocate’s marshalling of ‘the theory of the case’ (see Twining’s Rethinking Evidence: Exploratory Essays, Cambridge University Press (Law in Context series), 2nd edn, 2006).
The most influential role in what can neutrally be put as the narrative of a case is that of the police, as it is they who ultimately decide whether to charge anyone, and if so, whom and for what. Once these discretions have been exercised, there is a relatively narrow band of data on which the CPS can work.
In 1951, the Attorney General, Lord Shawcross, noted that:
It has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution (House of Commons Debates, vol 483, col 681, 29 January 1951).
This dictum has been almost universally accepted within the criminal justice system.
There is evidence, however, that the police do (for operational or social reasons) tend to focus their attention on particular types of conduct. Research, for example, by Andrew Sanders has shown a tendency for there to be a bias in favour of prosecuting working-class offenders as opposed to middle-class offenders. He compared the police response to offences with that of the Factory Inspectorate’s response to violation of the health and safety laws, and found that the police were much more likely to initiate prosecutions against working-class suspects than were the factory inspectors against businesses and business executives. For the police, there was an institutional bias in favour of prosecution reflected in the principle ‘let the court decide’, whereas for the Factory Inspectorate, prosecution was a last resort pursued only after an attempt at negotiated compliance had failed. In 1980, there were 22,000 serious cases of tax evasion, but only one in 122 cases was prosecuted. By contrast, there were 107,000 social security frauds, of which one in four was prosecuted. Tax evasion resulted in a loss to the public purse 30 times larger than that caused by social security fraud, yet there was more state money spent on prosecuting people for social security fraud. (See Sanders, ‘Class bias in prosecutions’ (1985) 24 Howard J 176.) There is also evidence that the Environment Agency has a ‘bottom-heavy’ enforcement policy, that is, it is more concerned to prosecute minor offenders than large companies. Anglers who catch fish without licences are far more likely to appear in court than the directors of companies that pollute the environment. (See P de Prez, ‘Biased enforcement or optimal regulation: Reflections on recent parliamentary scrutiny of the Environment Agency’ (2001) 13(3) Environmental Law and Management 145.)
The Ministry of Justice guidance (July 2014) on out-of-court disposals identifies the following methods for diverting cases away from prosecution:
These disposals ‘allow the police to deal quickly and proportionately with low-level, often first-time offending which could more appropriately be resolved without a prosecution at court’ (www.justice.gov.uk).
These are suitable for offenders who admit the offence and consent to a community resolution being administered. They encourage the offender to face up to the consequences of their behaviour and take responsibility for making good any harm caused. They may be used in conjunction with restorative justice. They do not form part of a criminal record but may have to be disclosed for an enhanced Disclosure and Barring Service check.
Police officers may administer an informal verbal warning to adults caught in possession of a small amount of these drugs consistent with personal use. The warnings, which may be administered on the street or at the police station, follow admission of the offence and consent to the warning and are suitable for first-time offences. A second offence leads to a penalty notice and a third to a charge.
The Criminal Justice and Police Act 2001 established the penalty notice for disorder as an alternative method of disposing of cases such as low-level retail theft, being drunk and disorderly and causing fear, alarm or distress. An on-the-spot penalty of £60 is administered and this will rise to £90 if not paid within 21 days. The person concerned may opt to be tried for the offence instead. In some areas, schemes run whereby there is a short educational course as an alternative to paying the penalty (for example on the health implications of the behaviour concerned).
Youth cautions are a statutory disposal governed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. They are available for any offence. Although principally designed for low-level offending, they may be used for any offence where it is not in the public interest to prosecute. While the young person must have admitted the offence (and not mentioned anything giving rise to a defence), consent is not required. Parents or other appropriate adults must have been given enough information about the options available and, in the case of sexual offences, the consequences of inclusion on the register of sex offenders must be explained to both the adult and the young person. The caution forms part of the young person’s criminal record.
These are non-statutory and available for any offence. Again, they are designed for low-level offending but may be used for any offence where it is not in the public interest to prosecute. The Crown Prosecution Service must be consulted if the offence is indictable only. The offender must admit the offence and consent and the caution will form part of the criminal record. As with young people, the offender may be placed on the sex offenders register if the offence is one covered by the Sexual Offences Act 2003.
These are youth cautions with conditions attached, and were introduced by the Crime and Disorder Act 1998. The police may offer these for summary and either-way offences, but a Crown Prosecutor must authorise conditional cautions for indictable-only offences. The conditions may be rehabilitative, reparative or punitive but must be appropriate, proportionate and achievable. Punitive conditions may include unpaid work, but only in respect of youth conditional cautions.
These are adult cautions with conditions attached, and their main features are the same as youth conditional cautions (above). In addition, where the offender does not have permission to enter or remain in the UK, the conditions offered may be designed to ensure the offender leaves the UK and does not remain.
The problematic nature of such out- of-court disposals will be considered further at 12.9.3.
The Code for Crown Prosecutors (promulgated on behalf of the DPP) sets out the official criteria governing the discretion to prosecute. It is issued under s 10 of the POA 1985. The seventh edition of the Code was published in January 2013 and can be viewed in full at www.cps.gov.uk/publications/code_for_crown_prosecutors/. The CPS website also includes substantial legal guidance on every aspect of criminal law and procedure.
The Code sets out the basis on which prosecutions may be brought and the underlying principles. It provides two tests: the Threshold Test and the Full Code Test. Prosecution can only start or continue when the Full Code Test is satisfied. The Threshold Test is an exception to the Full Code Test. It may only be applied where the suspect presents a substantial bail risk and not all the evidence is available at the time when he or she must be released from custody unless charged.
The Full Code Test requires two tests to be satisfied before a prosecution is brought: there must be a ‘realistic prospect of conviction’ (the evidential test); and the prosecution must be ‘in the public interest’.
The evidential test requires prosecutors to predict what a jury or bench, properly directed, would be likely to decide. The guidelines require prosecutors to assess the reliability of evidence, not just its admissibility. Glanville Williams ([1985] Crim LR 115) and Andrew Sanders ((1994) 144 NLJ 946) argued that earlier versions of this test, which dealt specifically with reliability in relation to personal characteristics, favoured people who are well respected in society – like police officers and businessmen – in whose favour juries and magistrates might be biased. It disfavoured the sort of victims who are unlikely to make good witnesses. Sanders proposed a better test: whether, on the evidence, a jury or bench ought (on the balance of probabilities) to convict. The Code now says that the test is whether the jury or bench ‘is more likely than not to convict the defendant of the charge alleged’ (para 4.5).
The public interest must be considered in each case where there is enough evidence to provide a realistic prospect of conviction. In cases of any seriousness, a prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour.
The Code lists some ‘public interest factors in favour of prosecution’ and some against (para 4.12). Crown Prosecutors and others must balance factors for and against prosecution, carefully and fairly.
In October 2013, a new Code of Practice for Victims of Crime was produced under s 33 of the Domestic Violence, Crime and Victims Act 2004. This Code, updated in October 2015, applies not just to the CPS, but to a wide variety of criminal justice organisations. The CPS is committed to ‘championing justice and defending the rights of victims, fairly, firmly and effectively’. The public interest factors in the Full Test Code take into account the circumstances of the victim, for example the effect of a prosecution on the victim’s health. If there is evidence that a prosecution is likely to have an adverse impact on the victim’s health then it may make a prosecution less likely, taking into account the victim’s views.
The Attorney General has commended the Code to prosecutors outside the CPS. This may help to correct inconsistent approaches between the police and CPS on the one hand and, on the other, prosecutors like HMRC and the Health and Safety Executive. As Sanders (see above) has observed, if you illegally gain a fortune or maim someone, you will probably be treated more leniently than ordinary disposals for such offences if the crimes are, technically, tax evasion and operating an unsafe place of work. Local authorities and the Environment Agency seem generally reluctant to prosecute environmental offenders. This can lead to a situation in which environmental crime, for example, makes good business sense. (See M Watson, ‘Offences against the environment: the economics of crime and punishment’ (2004) 16(4) Environmental Law and Management 2003–04. For the Health and Safety Executive, see G Slapper, Blood in the Bank (1999).)
The CPS is institutionally separate from the police. The police are no longer in a client – lawyer relationship with the prosecutor, able to give instructions about how to proceed. The CPS in practice exercises no supervisory role over the police investigation of cases; it simply acts on the file presented after the investigation by the police. It cannot instruct the police to investigate a particular incident.
The power of the CPS to discontinue prosecutions (under s 23 or s 23A of the POA 1985), or the continuing power to withdraw or offer no evidence, is an important feature of its independence.
However, the CPS itself identifies that the relationship between the CPS and the police is an important one. They recognise the importance of the role of the police in the prosecution process, not only the detection and investigation of criminal offences, but tasks such as warning witnesses to attend court, obtaining further witness statements as required and keeping victims informed as to the progress of the case.
Prosecutors are warned, however, that the CPS and the police have separate functions, and that they should not try to become an investigator or direct police operational procedures.
However, providing advice to the police in all matters relating to criminal offences is one of the core statutory functions of the CPS. Prosecutors should therefore be alert and open to all appropriate opportunities for giving such advice, where it may contribute to the effectiveness of an investigation and prosecution (www.cps.gov.uk/legal/a_to_c/cps_relations_with_the_police/#a01).
There is a very limited way in which the courts could control the exercise of prosecutorial discretion by the police. Lord Denning MR gave the example in one 1968 case of a chief constable issuing a directive to his officers that no person should be prosecuted for stealing goods worth less than £100 (over £2,000 in modern prices), and said: ‘I should have thought the court could countermand it. He would be failing in his duty to enforce the law.’ More generally, the courts had no control, per Lord Denning MR, R v Metropolitan Police Commissioner ex p Blackburn [1968] 1 All ER 763 at 769:
For instance, it is for the Commissioner of Police of the Metropolis, or the Chief Constable, as the case may be, to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him directions on such a matter.
Apart from this, there is the doctrine of constabulary independence (see Fisher v Oldham Corp (1930)), which regards the constable as an independent office-holder under the Crown who cannot be instructed by organisational superiors or by governmental agencies about how to exercise his powers. The constable is accountable only to law. The judiciary has shown a marked reluctance to interfere with decisions made by police chiefs concerning, in particular, the allocation of resources and direction of police officers (see Harris v Sheffield United Football Club Ltd (1987); R v Chief Constable of Sussex ex p International Trader’s Ferry Ltd (1997)).
An interesting instance of the courts being used to attack a use of police discretion is R v Coxhead (1986). The appellant was a police sergeant in charge of a police station. A young man was brought into the station to be breathalysed and the sergeant recognised him as the son of a police inspector at that station. The sergeant knew the inspector to be suffering from a bad heart condition. In order not to exacerbate this condition, the sergeant did not administer the test and allowed the motorist to go free. The sergeant was prosecuted and convicted for conduct tending and intended to pervert the course of justice. The sergeant’s defence was that his decision came within the legitimate scope of discretion exercised by a police officer. The trial judge said the matter should be left for the jury to determine; they must decide the extent of any police discretion in accordance with the facts. The jury convicted the sergeant and his conviction was upheld by the Court of Appeal. In minor cases, the police had a very wide discretion whether to prosecute, but in major cases they had no discretion or virtually none. Thus, in a serious case like drink-driving, there was no discretion which the sergeant could have been exercising legitimately. It is odd, however, that this is left for the jury to decide after the event rather than being subject to clear rules to anticipate the proper exercise of police discretion.
It is possible to bring a judicial review of the decision to prosecute or not to prosecute. The courts are likely to direct the CPS to review its prosecutorial decisions where:
Reference has already been made to the fact that Crown Prosecutors are now able to appear in the higher courts if they are suitably qualified. This has caused a great deal of concern in some quarters. The basis of the worry is that, as full-time salaried lawyers working for an organisation, CPS lawyers will sometimes be tempted to get convictions using dubious tactics or ethics because their own status as employees and prospects of promotion will depend on conviction success rates. Where, as now, barristers from the independent Bar are used by the CPS to prosecute, there is (it is argued) a greater likelihood of the courtroom lawyer dropping a morally unsustainable case.
Section 42 of the Access to Justice Act 1999 tries to overcome any possible difficulties with a provision (amending s 27 of the Courts and Legal Services Act (CLSA) 1990) that every advocate ‘has a duty to the court to act with independence in the interests of justice’, in other words, a duty that overrides any inconsistent duty that might lie, for example, to an employer. Professor Michael Zander QC has contended, however, that these are ‘mere words’. He has said (letter to The Times, 29 December 1998) that they are unlikely to exercise much sway over CPS lawyer employees concerned with performance targets set by their line managers, and that:
The CPS as an organisation is constantly under pressure in regard to the proportion of discontinuances, acquittal and conviction rates. These are factors in the day-to-day work of any CPS lawyer. It is disingenuous to imagine they will not have a powerful effect on decision making.
The Bar was also very wary of this change, an editorial in Counsel (the journal of the Bar of England and Wales) saying:
[W]e are gravely concerned about the extent to which prosecutions will be done in-house by the CPS when the need for independent prosecutors is so well established in our democracy ((1999) Counsel 3, February).
It is important to set the arguments in a wider context. What are the social, economic or political debates surrounding this issue of how best to run a system of courtroom prosecutors? The change to having Crown Court prosecutions carried out by salaried CPS lawyers might well be expected to be more efficient, as the whole prosecution can be handled in-house, without engaging the external service of an independent barrister. This assumption has been discredited, however: CPS in-house cases are in fact more expensive to run than instructing chambers-based barristers (see Bar Council, 27 July 2009: ‘Independent Study Heavily Criticises CPS Claims about In-House Advocates are Based on “Alice in Wonderland Accounting”’). Some will argue that justice is being sacrificed to the deity of cost-cutting. On the other hand, it could be argued that justice and efficiency are not mutually exclusive phenomena and – as has been shown above – the CPS has been actively recruiting Higher Court Advocates (HCAs) to prosecute in the Crown Court. Keir Starmer QC, the ex-Director of Public Prosecutions, committed himself to the view that ‘in-house advocacy is here to stay for the CPS’ (9 January 2009). However, the real-term costs of HCAs have been effectively queried, with recent Bar Council meetings discussing the relative expense of independent and in-house barristers. This has culminated in a turf war between in-house CPS advocates and independent practitioners at the Bar. (See the article by Frances Gibb, ‘Bar Council says Crown Prosecution Service wasting millions with in-house prosecutions’, The Times, 27 July 2009.) It remains to be seen what effect the CPS Panel Advocate scheme, which is now up and running, will have on this debate.
Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI) oversees the work carried out by the Crown Prosecution Service (CPS) and other prosecuting agencies with the stated aim of enhancing the quality of justice and improving their efficiency effectiveness and fairness. It is independent from the prosecuting organisations it inspects and completely separately funded. In conducting such inspections HMCPSI employs:
HMCPSI may conduct an inspection in individual CPS areas to engage in thematic investigations across the whole service. It publishes the outcome of any such reports and in addition it submits an annual report to the Attorney General on the operation of the CPS generally which is laid before Parliament. HMCPSI has no regulatory powers in respect of the CPS or the SFO. Its role is merely ‘to provide evidence-based findings on what is working well and where improvement is needed.’ Then it is ‘for those with responsibility for the CPS or the SFO, either within the organisation or through their powers of superintendence, to effect the necessary changes.’
Bail is the release from custody, pending a criminal trial, of an accused. The relevant statute is the Bail Act (BA) 1976. Bail may be with or without conditions. Conditional bail may be granted, for example, on the promise that an accused will not contact witnesses or co-defendants in a case; that he or she will co-operate with probation or other state agencies; that he or she will report to a police station at specific times; or that he or she will observe a curfew (either a ‘doorstop’ curfew, where he or she is to present himself or herself to a police officer calling at the curfew address, or one which is electronically monitored via an ankle tag). Other conditions of remand on bail might include the promise that money will be paid to the court by a ‘surety’ (the person ‘standing’ the bail money) if he or she absconds, or the deposit of a security, where money is paid into court ‘up-front’ and is forfeit if the defendant absconds. All decisions on whether to grant bail therefore involve delicate questions of balancing interests, but the exercise begins with the presumption that an accused should be at liberty until proven guilty. The test to be applied is a threshold one. Where there are ‘substantial grounds’ for believing that the exceptions to bail in the Bail Act 1976 are met, a court may be satisfied that deprivation of the liberty of an accused can be justified.
A person is presumed innocent of a criminal charge unless he or she is proved guilty of it; this implies that no one should ever be detained unless he or she has been found guilty. It follows that there is a presumption of liberty, which the prosecution may oppose only by establishing ‘substantial grounds’ to overturn that presumption. For several reasons, however, it can be regarded as undesirable to allow some accused people to go back to society before the case against them is tried in a criminal court. Indeed, about 12 per cent of offenders who are bailed to appear in court fail to appear for their trials. In January 2005, the Attorney General called for a crack-down on defendants who skip bail. At the time in question, 60,000 ‘failed to appear’ (FTA) warrants were outstanding. Lord Goldsmith said: ‘They will see that they can’t thumb their nose at the criminal justice system. Turning up at court is not optional. It is a serious obligation and we will enforce it’ (C Dyer, ‘Bail bandits blitz begins today’, The Guardian, 14 January 2005).
In 2008, it was revealed that nearly one in seven people charged with murder and awaiting trial were released on bail. A survey by the Courts Service disclosed that at least 60 of the 455 people accused of murder were on the streets on 31 January 2008, while 35 out of 41 of those awaiting trial for manslaughter were bailed. (That survey has not been updated.) The disclosure came after Gary Weddell murdered Traute Maxfield, his mother-in-law, before killing himself. At the time, he was on bail charged with the murder of his wife (The Times, 25 February 2008). The Coroners and Justice Act 2009 has since reformed the law relating to the application and grant of bail. In particular, s 115 of that Act provides that a defendant who is charged with murder (and other offences) may not be granted bail except by a judge of the Crown Court. The power of magistrates to consider bail in murder cases – whether at the first hearing or after a breach of an existing bail condition – is thus removed. A bail decision in such cases must be made as soon as reasonably practicable. In any event, a decision must be made within 48 hours (excluding public holidays), beginning the day after the defendant’s appearance in the magistrates’ court.
To refuse bail to an accused might involve depriving someone of liberty who is subsequently found not guilty or convicted, but given a non-custodial sentence. Such a person will probably have been kept in a police cell or in a prison cell for 23 hours a day. Unlike the jurisdictions in the Netherlands, Germany and France, no compensation is payable in these circumstances. On the other hand, to allow liberty to the accused pending trial might be to allow him or her to abscond, commit further offences, interfere with witnesses and obstruct the course of justice. A suspected terrorist might commit further outrages (a controversial issue following the explosions in London on 7 July 2005).
The difficulties involved in finding the proper balance were highlighted by several cases of serious assault and rape being committed by persons who were on bail, and by the fleeing of Asil Nadir to Northern Cyprus in May 1993. Mr Nadir skipped his £3.5 million bail to travel to a jurisdiction that would not extradite him to England. He claimed that he would not be given a fair trial for the offences of theft and false accounting with which he was charged, and went on the public record as saying that his sureties would not suffer hardship as he would repay those who had put up bail for him. In 2010, Mr Nadir returned to the UK to clear his name. He was, however, convicted of fraud and the theft of £29 million from his former Polly Peck empire, and sentenced to 10 years’ imprisonment.
The basic way in which the law currently seeks to find the right balance in such matters is by operating a general presumption in favour of bail, a presumption that can be overturned if one or more of a number of indices of suspicion exist in respect of a particular defendant. Even where bail is granted, it may be subject to certain conditions to promote public safety and the interests of justice. Bail may be granted by the police or by the court.
In the criminal process, the first stage at which bail is usually raised as an issue is on arrest or at the police station. The police may grant bail using the same criteria as the courts but the governing law is the Police and Criminal Evidence Act 1984 (PACE).
Section 30A – D of PACE enables police officers to grant bail to persons following their arrest without the need to take them to a police station. It provides the police with additional flexibility following arrest and the scope to remain on patrol where there is no immediate need to deal with the person concerned at the station. It is intended to allow the police to plan their work more effectively by giving them new discretion to decide exactly when and where an arrested person should attend a police station for interview. (See A Hucklesby, ‘Not necessarily a trip to the police station: the introduction of police bail’ (2004) Crim LR 803.)
Section 30A(2) – (6) sets out the detail relating to this power to grant bail on arrest. The basic principle remains that a person arrested by a constable or taken into custody by a constable after being arrested by someone else must be taken by a constable to a police station as soon as is practicable. However, this is subject to the provisions dealing with release either on bail or without bail.
Sub-section (4) provides that a constable must release the person concerned without bail if, before reaching the police station, he or she is satisfied that there are no grounds for keeping them under arrest or releasing them on bail under the new provisions.
Sub-section (5) makes it clear that a constable may delay taking an arrested person to a police station or releasing them on bail if that person’s presence elsewhere is necessary for immediate investigative purposes. The reason for such delay must be recorded either on arrival at the police station or when the person is released on bail.
Sub-section (7) provides police officers with the framework of powers to grant bail following arrest. Section 30A provides that a constable has power to release a person on bail at any time prior to arrival at a police station. It specifies that the person released on bail must be required to attend a police station and that any police station may be specified for that purpose. No other requirement may be imposed on the person as a condition of bail.
Section 30C(3) specifies that nothing in the BA 1976 applies in relation to bail under these new arrangements. The law that applies to this form of bail is set out in PACE 1984 as amended by the Criminal Justice Act 2003.
Section 30C(4) clarifies that a person who has been released under the new bail provisions may be re-arrested if new evidence justifying such a course of action has come to light since their release.
Under s 37(7) PACE, where it appears to the custody officer that there is sufficient evidence to charge a suspect, and either further enquiries are still in progress or a decision on charging needs to be made by the CPS, the custody officer may grant conditional or unconditional bail.
If a person is arrested on a warrant, this will indicate whether they are to be held in custody or released on bail. If the suspect is arrested without a warrant, then the police will have to decide whether to release the suspect after they have been charged. After a person has been charged, s 38(1)(a) of the PACE states that a person must be released unless: (a) their name and address are not known; or (b) the custody officer reasonably thinks that their detention is necessary for their own protection; or (c) to prevent them from injuring someone or damaging property, or because they might abscond, or interfere with the course of justice; or (d) the custody officer reasonably believes that the detention of that person is necessary to prevent them from committing any offence.
Sections 38 and 47 of PACE 1984 allow the police to grant conditional bail to persons charged. The conditions can be whatever is required to ensure that the person surrenders to custody, does not commit an offence while on bail, or does not interfere with witnesses or otherwise obstruct the course of justice. The powers of the custody officer, however, do not include a power to impose a requirement to reside in a bail hostel or to attend an interview with a legal adviser, or require the suspect to make him or herself available for inquiries and reports. The police have power to arrest without warrant a person who, having been granted conditional police bail, has failed to attend at a police station at the appointed time (s 46A PACE).
The Bail Act 1976 created a statutory presumption of bail. It states (s 4) that, subject to Schedule 1, bail shall be granted to a person accused of an offence and brought before a magistrates’ court or a Crown Court, and also to people convicted of an offence who are being remanded for reports to be made. The court must therefore grant bail (unless one of the exceptions applies), even if the defendant does not make an application. Schedule 1 provides that a court need not grant bail to a person charged with an offence punishable with imprisonment if it is satisfied that there are ‘substantial grounds’ (the relevant test) for believing that, if released on bail, the defendant would:
The court can also refuse bail if it believes that the defendant ought to stay in custody for his or her own protection, or if it has not been practicable, for want of time, to obtain sufficient information to enable the court to make its decision on bail, or he or she has previously failed to answer to bail (Sched 1, Part I, paras 2–6).
When the court is considering the grounds stated above, all relevant factors must be taken into account. These include: the nature and seriousness of the offence, the character, antecedents, associations and community ties of the defendant, and his or her record for satisfying his or her obligations under previous grants of bail.
Evidence accepted by the Home Office suggests that there is a link between drug addiction and offending. In addition, it is widely accepted that many abusers of drugs fund their misuse through acquisitive crime. There is thus a real concern that, if such offenders who have been charged with an imprisonable offence are placed on bail, they will merely re-offend in order to fund their drug use.
Under s 19 CJA 2003, an alleged offender aged 18 or over, who has been charged with an imprisonable offence, will not be granted bail (unless the court is satisfied that there is no significant risk of his committing an offence while on bail) where the three conditions below exist:
The assessment will be carried out by a suitably qualified person, who will have received training in the assessment of drug problems. If an assessment or follow-up is proposed and agreed to, it will be a condition of bail that it be undertaken. This provision can only apply in areas where appropriate assessment and treatment facilities are in place.
If the defendant is charged with an offence not punishable with imprisonment, Sched 1 provides that bail may be refused only if the court is satisfied that there are substantial grounds for believing that if released on bail (whether subject to conditions or not) he or she would fail to surrender to custody, commit an offence while on bail, or interfere with witnesses or otherwise obstruct the course of justice. Bail may also be refused for the defendant’s own protection or there are substantial grounds for believing he or she may cause physical or mental injury (or fear of such) to an associated person.
Section 25 of the CJPOA 1994 provided that, in some circumstances, a person who had been charged with or convicted of murder, attempted murder, manslaughter, rape or attempted rape must not be granted bail. The circumstances were simply that the conviction must have been within the UK, and that, in the case of a manslaughter conviction, it must have been dealt with by way of a custodial sentence. The word ‘conviction’ is given a wide meaning and includes anyone found ‘not guilty by way of insanity’.
There was debate about whether the changes wrought by s 25 were justifiable. A Home Office Minister, defending the section, stated that it would be worth the risk if it prevented just one murder or rape, even though there might be a few ‘hard cases’, that is, people eventually acquitted of crime, who were remanded in custody pending trial (David Maclean MP, Minister of State, Home Office, HC Committee, col 282, 1994). As Card and Ward remarked in a commentary on the CJPOA 1994, the government, when pushed, was unable to cite a single case where a person released on bail, in the circumstances covered by s 25, re-offended in a similar way. There is no time limit on the previous conviction and there is no requirement of any connection between the previous offence and the one in question. Card and Ward suggest that there is a world of difference between a person who was convicted of manslaughter 30 years ago on the grounds of complicity in a suicide pact and who is now charged with attempted rape (of which they must be presumed innocent), and the person who was convicted of rape eight years ago and now faces another rape charge. The first person is not an obvious risk to society and it is, they argue, regrettable that bail will be denied to him. There was also argument to be had with the contents of the s 25 list. Why should some clearly dangerous and prevalent crimes like robbery be omitted from it? In any case, it might have been better had the offences in the list raised a strong presumption against bail as opposed to an absolute ban, as the former could be rebutted in cases where there was, on the facts, no risk.
A further significant difficulty with this approach was that it appeared to be incompatible with the requirements of Art 5(3) of the European Convention on Human Rights (ECHR); decisions of the court which make it clear that the decision to remand a defendant in custody before trial must be a decision of the court based on the merits after a review of the facts. By precluding bail in the specified circumstances, s 25 denied the court the opportunity to take a decision based on the merits. Thus, in CC v UK (1999) (subsequently confirmed by the European Court of Human Rights in Caballero v UK (2000)), the European Court found that s 25 violated rights under Art 5(3) where the claimant had been denied bail on a rape charge in 1996 because of a conviction for manslaughter in 1987.
Anticipating this decision, s 25 was amended by the CDA 1998 to provide that bail should only be granted in homicide and rape cases if the court is ‘satisfied that there are exceptional circumstances which justify it’. However, doubts have been expressed by the Law Commission and others about whether this change achieves compliance with obligations under the ECHR. The argument is that the presumption required by the ECHR is innocence and therefore that the defendant should be released, while the presumption under the amended s 25 is that the defendant should not be released. Nevertheless, what effectively operates as a presumption against bail in s 25 of the Criminal Justice and Public Order Act 1994 has been found by the courts as not incompatible with Art 5(3) (the liberty guarantee) of the ECHR, provided the overall burden is not on the defendant to prove that bail should be granted (see R (O) v Harrow Crown Court (2006)).
Bail can be granted as conditional or unconditional. Where it is unconditional, the accused must simply surrender to the court at the appointed date. Failure to appear without reasonable cause is an offence under the BA 1976 (s 6) and can result, if tried in a Crown Court, in a sentence of up to 12 months’ imprisonment or a fine. Conditions can be attached to the granting of bail where the court thinks that it is necessary to ensure that the accused surrenders at the right time and does not interfere with witnesses or commit further offences. Bail conditions may also be imposed for a defendant’s own protection or welfare, in the same circumstances that he or she might have been remanded in custody for that purpose. There is no statutory limit to the conditions the court may impose. The most common include requirements that the accused reports daily or weekly to a police station, resides at a particular address, surrenders his or her passport, or does not go to particular places or associate with particular people. The accused may also be required to attend interviews with a legal representative as a condition of bail.
Section 7 of the BA 1976 gives the police power to arrest anyone on conditional bail whom they reasonably suspect is likely to break the conditions or has already done so. Anyone arrested in these circumstances must be brought before a magistrate within 24 hours. The magistrate may then reconsider the question of bail.
Personal recognisances, by which the suspect agreed to pay a sum if he or she failed to surrender to the court, were abolished by the BA 1976 (s 3(2)), except in cases where it is believed that the defendant might try to flee abroad. The Act did retain the court’s right to ask for sureties as a condition of bail. By putting sureties in a position where they can have large sums of money ‘estreated’ if the suspect does not surrender to the court, significant pressure (not using the resources of the criminal justice system) is put on the accused. The proportion of those who do not answer to bail is about 12 per cent of those given bail. Section 9 of the BA 1976 strengthens the surety principle by making it a criminal offence to agree to indemnify a surety. This sort of thing could happen, for example, if the accused agreed to reimburse the surety in the event that he or she skipped bail and the surety was requested to pay.
The rules that govern how someone who has been refused bail might reapply and appeal have also been framed with a view to balancing the interests of the accused with those of the public and justice. The original refusal should not be absolute and final but, on the other hand, it is seen as necessary that the refusals are not reversed too easily.
If the court decides not to grant the defendant bail, then Sched 1, Part IIA (inserted by s 154 of the Criminal Justice Act (CJA) 1988) provides that it is the court’s duty to consider whether the defendant ought to be granted bail at each subsequent hearing. At the first hearing after the one at which bail was first refused, he or she may support an application for bail with any arguments, but at subsequent hearings, the court need not hear arguments as to fact or law which it has heard before. The CJA 1988 enables a court to remand an accused, in his or her absence, for up to three successive one-week remand hearings provided that he or she consents and is legally represented. Such repeated visits are costly to the State and can be unsettling for the accused, especially if he or she has to spend most of the day in a police cell, only to be told the case has been adjourned again without bail. If someone does not consent, they are prevented from applying for bail on each successive visit if the only supporting arguments are those that have been heard by the court before (R v Nottingham JJ ex p Davies (1980)).
To avoid unproductive hearings, that is, to promote courts being able to adjourn a case for a period within which reasonable progress can be made on it, s 155 of the CJA 1988 allows for adjournments for up to 28 days provided the court sets the date for when the next stage of the proceedings should take place.
The interests of the accused are also served by the variety of appeals he or she may make if bail has been refused. If bail has been refused by magistrates then, in limited circumstances, an application may be made to another bench of magistrates. Applications for reconsideration can also be made to a judge in chambers (through a legal representative) or to the Official Solicitor (in writing). Appeal can be made to a Crown Court in respect of bail for both pre-committal remands and where a defendant has been committed for trial or sentence at the Crown Court. There is also a right of appeal to the Crown Court against the imposition by magistrates of certain conditions of bail. The conditions that may be challenged in this way are requirements relating to residence, provision of a surety or giving a security, curfew, electronic monitoring or contact. This complements the removal by s 17 of the existing High Court power to entertain such appeals.
Section 3 of the BA 1976 allows for an application to vary the conditions of court bail to be made by the person bailed, the prosecutor or a police officer. Application may also be made for the imposition of conditions on unconditional court bail. Section 3 of the BA 1976 allows for the same thing in relation to police bail, although it does not allow the prosecutor to seek reconsideration of the decision to grant bail itself. Under the Bail (Amendment) Act 1993 (as amended), however, the prosecution does have a right to appeal against the grant of bail by a court in all cases of imprisonable offences. When this right of appeal is exercised, the defendant will remain in custody until the appeal is heard by a Crown Court judge, who will decide whether to grant bail or remand the defendant in custody within 48 hours of the magistrates’ decision. Parliament was concerned that this power could be abused and has stated that it should be reserved ‘for cases of greatest concern, when there is a serious risk of harm to the public’ or where there are ‘other significant public interest grounds’ for an appeal.
Section 240 of the Criminal Justice Act 2003 states that time spent in custody pre-trial or pre-sentence can generally be deducted from the ultimate sentence. No compensation, however, is paid to people who have been remanded in custody but are subsequently found not guilty.
Section 240A of the Criminal Justice Act 2003, as inserted by s 21 of the Criminal Justice and Immigration Act 2008, provides for a deduction from the ultimate sentence if the offender has spent time on bail subject to a curfew of nine hours or more in any given day, coupled with an electronic monitoring condition. The defendant will generally be entitled to an order to the effect that half the number of days spent on bail subject to those conditions should count as time served by the prisoner as part of his or her sentence.
This area of law was subject to a comprehensive revision after a Home Office special working party reported in 1974, and has been legislatively debated and modified twice since the BA 1976. It is, however, still a matter of serious concern, both to those civil libertarians who consider the law too tilted against the accused, and to the police and commentators, who believe it too lenient in many respects. This criticism of the law from both sides of the debate might indicate a desirable state of balance reached by the current regulatory framework.
‘Plea bargaining’ has been defined as ‘the practice whereby the accused enters a plea of guilty in return for which he will be given some consideration that results in a sentence concession’ (Baldwin and McConville, Negotiated Justice: Pressures on Defendants to Plead Guilty (1977)). In practice, this can refer to:
Plea bargaining is widespread in some common law countries, for example the United States. It has always been considered impermissible in the English legal system. However, the related issue of whether a judge should give advance indications of sentence has been subject to change since the original leading case of R v Turner (1970) was decided. In Turner Lord Parker CJ said that the judge should never indicate the sentence which they are minded to impose, nor should they ever indicate that on a plea of guilty they would impose one sentence, but that on a conviction following a plea of not guilty they would impose a more severe sentence. The judge could say what sentence they would impose on a plea of guilty (where, for example, they have read the depositions and antecedents) but without mentioning what they would do if the accused were convicted after pleading not guilty. Even this would be wrong, however, as the accused might take the judge to be intimating that a more severe sentence would follow upon conviction after a guilty plea. The only exception to this rule is where a judge says that the sentence will take a particular form, following conviction, whether there has been a plea of guilty or not guilty.
This aspect of R v Turner was overruled in R v Goodyear (Karl) (2005), when Lord Woolf, giving the judgment of a specially convened five-judge Court of Appeal, said that a Crown Court judge could give an advance indication of sentence, if, but only if, the defendant requests one. He or she is not obliged to do so and the indication would normally be limited to the maximum sentence likely to be imposed if a plea of guilty were entered at that stage in proceedings (usually the plea and case management hearing). The Criminal Procedure Rules 2014, para 3.23, detail how this process works. In the Attorney General’s Reference (No. 34 of 2010) (R v Simon Roland Langridge) (2010) the Court of Appeal stressed that it was essential that discussions take place in open court, unless circumstances were exceptionally sensitive.
The role of the prosecutor in accepting guilty pleas is governed by the Attorney General’s ‘Guidelines on the acceptance of pleas and the prosecutor’s role in the sentencing exercise (revised 2009)’ and s 9 of the Code for Crown Prosecutors. The prosecutor can only accept the plea if the basis of the plea is accurate, so protecting the victim’s interests and accuracy of sentencing. This also ensures fairness and transparency in the process. In relation to the advance indication of sentence, Goodyear makes it clear that the role of the prosecutor is reactive rather than proactive.
The complexity and expense of prosecuting serious fraud has led to specific provisions in relation to this. The 2009 Attorney General’s Guidelines on Plea Discussions in Cases of Serious or Complex Fraud govern this.
The General Principles for prosecutors undertaking plea negotiations are as follows:
Section 45 and Sched 17 of the Courts and Crime Act 2013 introduced deferred prosecution agreements (DPAs). A DPA is an agreement between a prosecutor and an organisation (not an individual) facing prosecution for an alleged economic or financial crime in the Act. The organisation agrees to comply with a range of terms and conditions and the prosecutor agrees to institute but then defer criminal proceedings for the alleged offence. The aim is to protect organisations from the adverse effects of a criminal conviction while ensuring that they take appropriate action. Para 5(3) of Sched 17 provides that:
(3) The requirements that a DPA may impose on P [the organisation] include, but are not limited to, the following requirements –
The DPA may impose time limits within which P must comply with the requirements imposed on P.
The Serious Fraud Office has issued a Code of Practice for DPAs: Deferred Prosecution Agreements Code of Practice, 2014.
The first DPA to be approved by the High Court involved the London-based ICBC Standard Bank admitting to wrongdoing and agreeing to penalties, compensation and costs totalling $32 million to avoid prosecution. The bank admitted failing to prevent bribery when its Tanzanian arm, Stanbic Bank Tanzania, raised $600 million (£400 million) for the government (The Times, 1 December 2015). The DPA was approved in a public hearing before Mr Justice Leveson, president of the High Court’s Queen’s Bench Division. The bank was given a penalty of $32.2 million, including a $16.8 million fine to be paid to the SFO. The penalty is one that includes a one-third reduction for self-disclosure and co-operation.
One area of criminal law that throws the relationship between the executive and the judiciary into particularly sharp focus is that of sentencing individuals who have been found guilty of particular offences. It is equally one that involves the interplay of judicial review, the European Convention on Human Rights (ECHR) and the Human Rights Act 1998 (HRA).
In 1997, immediately prior to the election of that year, Parliament required the provision of automatic life sentences for those found guilty of a second serious offence. Thus, s 2 of the Crime (Sentences) Act 1997 required judges to pass indeterminate life sentences for those found guilty of a range of offences including attempted murder, rape, manslaughter, wounding, causing grievous bodily harm with intent and robbery with a real or imitation firearm, where the guilty person had been previously convicted of another offence on the list. Given their discontent with the provisions for mandatory sentencing in relation to convictions for murder, it can be appreciated that many of the judiciary, led by the late Lord Justice Taylor, saw the Act as a dangerous party-politicisation of the criminal justice system and an unwarranted interference by the legislature with the scope of judicial power and discretion, and were vociferous in their opposition to it.
However, even when the Act came into force, it still left some scope for judicial discretion whereby they could identify such ‘exceptional circumstances’ as could justify the non-application of the mandatory sentence. Until the implementation of the HRA, the question was as to what properly constituted such exceptional circumstances, and different courts tended to reach different conclusions of a more or less liberal nature. Thus, in R v Stephens (2000), the defendant, who already had a previous serious conviction, was found guilty of grievous bodily harm with intent and was consequently given an automatic life sentence. At his trial, the prosecution had offered, and Stephens had rejected, the opportunity to plead guilty to a lesser charge, which would not have led to the imposition of the automatic life sentence. When it emerged that his counsel had not advised him as to the possible consequences of his decision to defend the more serious charge, the Court of Appeal held that that fact amounted to sufficient exceptional circumstances to quash the life sentence. However, in R v Turner (2000), where the defendant was also found guilty of causing grievous bodily harm with intent, the court felt obliged to impose the automatic life sentence, even though a period of some 30 years had elapsed since his previous conviction for manslaughter at the age of 22. The court could find no exceptional circumstances.
This unsatisfactory situation was resolved by reference to the HRA in R v Offen and Others (2001), in which the Court of Appeal considered five related claims that the imposition of automatic life sentences was contrary to the ECHR. The facts of Offen’s case provide a context for the decision.
Offen had robbed a building society using a toy gun. The cashiers thought the gun was real and placed £960 in his bag. During the robbery, he was nervous and shaking, and apologised to the staff as he left the building. A customer grabbed the bag with the money in it and gave it back to the building society. When he was arrested, Offen admitted the offence, but claimed he had not taken the medication he needed to deal with his schizophrenia. His previous conviction for robbery had been committed in similar circumstances. At his trial, he was subsequently sentenced automatically to life imprisonment.
In delivering its judgment, the Court of Appeal was extremely circumspect in considering its relationship with Parliament and its new powers under the HRA. It was equally firm, however, in its removal of the mandatory element from this aspect of the sentencing process.
As regards its relationship with Parliament, the court stressed that it was of the greatest importance to bear in mind Parliament’s intention in establishing the automatic life sentences. In the present instance, it understood that intention as being to protect the public against a person who had committed two serious offences. The Court of Appeal went on, however, to draw the conclusion that, on the basis of that concentration on the importance of protecting the public, it could be assumed that the Act was not intended to apply to anyone who did not pose a future risk.
Focusing on the future danger posed by the offender to the public rather than on the mere fact of their having committed two offences would allow the court to decide each case on the basis of its own particular facts, and if the facts of any particular case showed that the statutory assumption was misplaced, then that would constitute exceptional circumstances for the purposes of s 2 of the 1997 Act. As examples, the committing of different offences, the age of the offender and the lapse of time between the offences could give rise to exceptional circumstances in the context of a particular case that could override the assumption as to the imposition of the mandatory life sentence.
The court’s identification of Parliament’s intention in passing the Act cannot be doubted. The supposed corollary of this intention is much less certain. However, its process of logic allowed the Court of Appeal to interpret the Act in such a way as to support its own preferred approach, which was effectively to remove the automatic element in the sentencing process and to reintroduce an element of judicial discretion. The foregoing interpretation of the Act was supported by the court’s marshalling of the HRA. In their judgments, the three members of the Court of Appeal stated that s 2 of the 1997 Act did not contravene Arts 3 and 5 of the ECHR so long as, and only to the extent that, exceptional circumstances were construed in such a way that it did not result in offenders being sentenced to life imprisonment when they did not constitute a significant risk to the public: that is, as the Court of Appeal had already decided it should be construed. In reaching this conclusion, the Court of Appeal can be seen to be employing s 3 of the HRA, in that it was interpreting the primary legislation of the Crime (Sentences) Act 1997 in such a way as to make it compatible with the ECHR rights. In so doing, the judiciary achieved its preferred end without having to issue a declaration of incompatibility and without having to rely on the government introducing an amendment to its own Powers of Criminal Courts (Sentencing) Act 2000, s 109 of which had re-enacted s 2 of the 1997 Act.
Section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 was repealed by s 332 of the Criminal Justice Act 2003, and replaced by ss 224–236 of that Act. Those provisions introduced two new forms of custodial sentence under the heading of ‘dangerous offenders’:
Imprisonment for public protection required the court to impose an indeterminate term in circumstances in which the offender satisfied the criteria of dangerousness therein defined.
In doing so, parliament replaced the relatively simple provision of two serious offences leading to an ‘automatic’ life sentence with an apparently more flexible concept of dangerousness. Thus under s 229 CJA 2003, courts were obliged to consider whether an offender has fallen into a category of dangerousness by virtue of being convicted of a ‘specified offence’ and such a determination required the judge to consider degrees of risks of serious harm from further offences by the offender. However, the apparent discretion given to the sentencing court by s 229 was undercut by the prescriptive language of the provision with the result that the courts were effectively bound by a similar test as had originally been required under s 109 of the Powers of Criminal Courts (Sentencing) Act 2000. As a result, individuals convicted of relatively trivial offences with comparatively short minimum periods to serve could receive indeterminate sentences under s 229. An attempt to remedy the clear inequity of such consequences was made in ss 13–18 of the Criminal Justice and Immigration Act 2008, to the effect that an in determinate sentence could only be imposed when the determinate term would have been at least four years’ imprisonment. Subsequently the Legal Aid, Sentencing and Punishment of Offenders Act (LAPSO) 2012 abolished the penalty of an indeterminate sentence for public protection replacing it with the imposition of a life sentence on conviction for a second serious offence. LAPSO 2012 also amended the use of extended sentences. That being said, it must be recognised that the indeterminate sentence still exists as it still binds those who received it, and there are currently 3,998 prisoners serving such sentences.
In James v UK (2013) the ECtHR held that if a prisoner was beyond the expiry of the minimum term of their sentence of imprisonment for public protection without being able to access rehabilitative courses, this would violate the ECHR 1950 Art 5(1). However, the Supreme Court did not apply this case in R (on the application of Kaiyam) v Secretary of State for Justice (2014), on the grounds that the availability of ancillary services could not affect the overall lawfulness of the detention. Subsequently, in November 2016, HM Inspector of Prisons, Peter Clarke, expressed the view that it was ‘widely accepted that implementation of the sentence was flawed’ and that ‘decisive action’ was needed for three main reasons:
In the light of such criticism it came as no surprise that new rules came into force in November 2016 giving effect to a ministerial decision to allow the release of IPP prisoners without an oral hearing.
When the death penalty for murder was removed in 1965, it was replaced by a mandatory life sentence, that is, if an individual is found guilty of murder, the court has no alternative but to sentence them to a period of life imprisonment. By definition, a ‘life sentence’ is for an indeterminate period, but the procedure is for a period to be specified, which the person must serve before they can be considered for release on parole. The problematic question of who sets this tariff is considered below. The judiciary have been consistently opposed to this fettering of their discretion; a number of leading judges, including the past Lord Chief Justices Bingham and Taylor, have spoken out against it, and in 1993 Lord Chief Justice Lane led a committee that recommended that the mandatory sentence be removed. In 1989, a Select Committee of the House of Lords, appointed to report on murder and life imprisonment, recommended the abolition of the mandatory life sentence. Lord Lane, formerly Lord Chief Justice, chaired a Committee on the Penalty for Homicide, which also produced a critical report in 1993:
(1) The mandatory life sentence for murder is founded on the assumption that murder is a crime of such unique heinousness that the offender forfeits for the rest of his existence his right to be set free. (2) That assumption is a fallacy. It arises from the divergence between the legal definition of murder and that which the lay public believes to be murder. (3) The common law definition of murder embraces a wide range of offences, some of which are truly heinous, some of which are not. (4) The majority of murder cases, though not those which receive the most publicity, fall into the latter category. (5) It is logically and jurisprudentially wrong to require judges to sentence all categories of murderer in the same way, regardless of the particular circumstances of the case before them. (6) It is logically and constitutionally wrong to require the distinction between the various types of murder to be decided (and decided behind the scenes) by the executive as is, generally speaking, the case at present…
As their Lordships correctly pointed out, there can be degrees of heinousness, even in regard to murder, and not all of those convicted deserve to be sentenced to life imprisonment. Mercy killers surely should not be treated in the same way as serial killers. This desire of the judges to remove the restriction in their sentencing power has, however, run up against the wish of politicians to be seen as tough on crime, or at least not soft on crime.
The uncomfortable relationship between criminal justice and party politics can be seen in the conviction for murder of Norfolk farmer Tony Martin in April 2000. Martin had used a shotgun to shoot two people who had broken into his farmhouse. One was injured and the other, 16-year-old Fred Barras, was killed. Martin was charged with murder and, at his trial, evidence was introduced to show that he had lain in wait for his victims, had set traps in his house and had used an illegal pump-action shotgun to shoot Barras in the back as he was attempting to run away. By a majority of 10:2 the jury found him guilty of murder and, as required, the judge sentenced him to life imprisonment. Much of the press considered the sentence to be outrageously severe on a man whom they portrayed as merely protecting his property against the depredations of lawless louts. (It has to be stated that Barras and his accomplice did have 114 previous convictions between them.) In focusing attention on the right of individuals to use force to protect their property – which, in any case, they already had so long as they did not use more than reasonable force – the press displaced attention from where it could best be focused. Had the court not been required to pass a mandatory sentence, then it would have been able to pass a more suitable sentence, if that had been appropriate in the circumstances. The press, however, would not countenance the granting of such discretionary sentencing power to the courts which, in other circumstances, they persistently characterise as being out of touch and dangerously soft on criminals.
The subsequent provision of s 76 of the Criminal Justice and Immigration Act 2008 did no more than provide a gloss on the existing law of self-defence. It maintained the existing common law test established in Palmer v R (1971), to the effect that the defence is available to someone only if they honestly believed it was necessary to use force and if the degree of force used was not disproportionate in the circumstances as they viewed them. Consequently a person who uses force is to be judged subjectively, on the basis of the circumstances as they saw them, and in the heat of the moment they will not be expected to have judged exactly what action was called for, and that a degree of latitude may be given to a person who only did what they honestly or instinctively thought was necessary.
In R v Hussain (2010) Munir Hussain had discovered three masked men in his house. The burglars tied up and threatened to kill him and his family. However, Hussain’s son managed to escape and told his uncle what had happened. When help arrived, the intruders ran away, but Hussain and his brother chased and caught one of them. He was Walid Salem, a criminal with more than 50 previous convictions. The brothers then subjected Salem to what the judge described as a ‘dreadful, violent attack’.
The revenge attack left Salem with a permanent brain injury after he was struck with a cricket bat so hard that it broke into three pieces. At their trial it was decided that the brothers’ reaction was disproportionate and Munir Hussain was sentenced to 30 months’ detention and his brother to 39 months’ detention. The case caused a furore in the press and eventually, on appeal, Hussain and his brother were given suspended sentences on the ground that the assault on Salem was ‘totally out of character’. Section 76 of the Criminal Justice and Immigration Act 2008 has now been amended by the Crime and Courts Act 2013 to allow homeowners to use disproportionate force against intruders, provided it is not ‘grossly’ disproportionate. Sub-section 5A now states:
In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.
In relation to mandatory life sentences, the Home Secretary formerly had the power to set what is known as the tariff, whereas in relation to other, non-mandatory life sentences, it was for the trial judge to set the tariff. The tariff was that part of the sentence that must be served before the person serving the prison sentence could be considered for release, on licence, by the Parole Board. Release after the tariff period was not automatic and depended on the decision of the Parole Board, which in turn depended on the behaviour of the individual while in prison and the extent to which they posed a threat to the public. The justification of the tariff was that it served to establish a minimum period of punishment and retribution. The question, however, was whether such a period should be determined by a member of the executive, by the Home Secretary or by the judiciary. As has been stated, the working out of this question involved an interplay of judicial review, the ECHR and the HRA, and demonstrated the way in which the HRA increased the powers of the courts in relation to the executive in a way that judicial review could never encompass.
There had been substantial criticism of the process of setting the tariff. In 1996, the Home Affairs Select Committee of the House of Commons took evidence and deliberated on the relevant issues. Their report (Murder: The Mandatory Life Sentence) recommended that the tariff and release decisions be removed from the Home Secretary and left with the trial judge and the Parole Board.
Before examining the situation in England, it should be noted that in Scotland, the Convention Rights (Compliance) (Scotland) Act 2001 now provides that in the case of mandatory life sentences, the trial judge fixes the ‘punishment part’ of the sentence, on the expiry of which the Parole Board decides on possible release on licence. The test applied to determine suitability for release is identical to that applied to discretionary life prisoners in England and Wales, namely, that the Parole Board is satisfied that the prisoner does not present a substantial risk of re-offending in a manner that is dangerous to life or limb, or of committing serious sexual offences.
The situation is similar in Northern Ireland: there, the Life Sentences (Northern Ireland) Order 2001 provides that the trial judge decides the tariff for a mandatory life prisoner and that release after serving the tariff is determined by Life Sentence Review Commissioners (with a status and functions very similar to those of the Parole Board operating in England and Wales). The test applied by the Commissioners is one of protection of the public from ‘serious harm’, this term meaning the risk of harm from violent or sexual offences.
There are in effect three distinct elements in a mandatory life sentence: the minimum term, the period after the minimum term has been served until the recommendation of the Parole Board to release the person on licence, and the overhanging possibility that the person might be recalled to prison if they breach the conditions of their release on licence at a later date. The first part – the minimum term – is punitive. The other elements are preventive and intended for public protection.
However, the question still arises as to what should happen where there is no need for any preventive element to a sentence. Precisely such situations arose in the related cases of R v Lichniak (2002) and R v Pyrah (2002). The two individuals concerned had been found guilty of murder, but in both cases the sentencing judges had clearly stated that neither of them represented a future danger to the community, nor was there any likelihood of their committing such offences in the future. Both were nonetheless subject to the mandatory life sentence for murder and appealed unsuccessfully to both the Court of Appeal and the House of Lords. Both courts held that the imposition of the mandatory life sentence did not violate Arts 3 or 5 of the ECHR and that such sentences were neither arbitrary nor disproportionate.
The decision of the House of Lords is, to say the least, somewhat surprising, especially when it is compared with the decision of the Privy Council in Reyes v the Queen (2002). In Reyes, it was held that a mandatory death sentence, operative in the jurisdiction of Belize, amounted to inhuman and degrading punishment. Among the grounds for that decision was the fact that the mandatory nature of the sentence precluded proper judicial consideration of the appropriate penalty. Although the Privy Council did expressly limit its reasoning to the Belize legal system in Reyes, and although the death penalty does stand alone as the harshest of penalties, it is nonetheless arguable that the mandatory life sentence in the United Kingdom achieves a similar, if less severe, consequence in limiting proper judicial consideration of the appropriate sentence to apply in different circumstances. It is apparent in both the Lichniak and Pyrah cases that the judges deciding the sentences did not really think that life sentences were appropriate, yet they had no choice but to pass such sentences. Can the imposition of an inappropriate sentence be anything other than arbitrary and disproportionate?
As will be considered below, perhaps Lichniak and Pyrah were unfortunate in the timing of their appeals. Those appeals followed a number of highly sensitive decisions in which the courts had used their powers under the HRA to remove the powers of the Home Secretary to set the punitive tariff in mandatory life sentences. Perhaps, given the highly charged, not to say antagonistic, nature of the relationship between the courts and past Home Secretaries, removing the mandatory sentence altogether was a step too far for the courts, or at least a step further than they thought it wise to take under political circumstances at that time.
Just as in the cases of adults sentenced to a mandatory life sentence, so the Home Secretary used to have the power to set the tariff for juveniles sentenced to detention at Her Majesty’s pleasure, that is, for an indeterminate period. However, in 1999, the European Court of Human Rights held that the exercise of that power by the Home Secretary was in contravention of the ECHR. The Home Secretary subsequently relinquished the power. The path to such a resolution is traced below.
In 1993, Jon Venables and Robert Thompson, two 10-year-old boys, were found guilty of the murder of two-year-old James Bulger. As juveniles, they were both sentenced, as required under s 53(1) of the Children and Young Persons Act (CYPA) 1933, to be detained at Her Majesty’s pleasure. The trial judge recommended a tariff of eight years as an appropriate period for retribution and deterrence, although, on review, Lord Chief Justice Taylor recommended that the tariff should be increased to 10 years. However, the ultimate decision as to the length of the tariff lay with the then Conservative Home Secretary, Michael Howard. Given the particularly brutal manner of the killing, there was very considerable public interest in the case and the sentencing of the two boys. The Sun newspaper organised a public petition to the effect that they should be ‘locked up for life’ or serve at least 25 years. Some 306,000 people signed and submitted petitions to that effect to the Home Secretary, who ultimately decided that the tariff should be set at 15 years. Doubts were raised as to whether, in ignoring the recommendations of the judges in reaching his decision, the Home Secretary had taken a (party) political rather than quasi-judicial decision to assuage the concerns of potential voters by demonstrating a willingness to be tough on crime and criminals.
Lawyers for Venables and Thompson successfully sought judicial review of the Home Secretary’s decision. On final appeal to the House of Lords (Secretary of State for the Home Department v V (A Minor) and T (A Minor) (1997)), the Home Secretary having lost all the previous cases, it was held that in setting the tariff at 15 years, he had not taken into account the welfare of the children as required by s 44 of the CYPA 1933. Additionally, the House of Lords stated that although the Home Secretary was entitled to take into account considerations of a public character, he must distinguish between legitimate public concern and mere public clamour. The Home Secretary had therefore misdirected himself and his decision was unlawful and should be quashed. The mechanism of judicial review therefore allowed the court to insist that, even if statute permitted the executive, in the form of the Home Secretary, to take sentencing decisions, in reaching any such decision, he must act in a judicial rather than a political manner. As Lord Steyn expressed it ([1997] 3 All ER 97 at 147):
In fixing a tariff the Home Secretary is carrying out, contrary to the constitutional principle of the separation of powers between the executive and the judiciary, a classic judicial function.
What judicial review could not achieve, however, was either the removal of the Home Secretary’s general power or the substitution of the courts’ decision for his particular decision. It would still have been for the Home Secretary to take the new decision as to the appropriate tariff, had the Strasbourg Court not intervened before such a decision could be taken.
Lawyers for Thompson and Venables had appealed to the ECtHR, claiming that many aspects of their clients’ cases had been conducted in a manner that was contrary to the ECHR. In December 1999, the ECtHR delivered its judgment and found that although many of the grounds for appeal were unfounded, the applicants had been denied a fair trial in accordance with Art 6 of the ECHR, as they had not been able to participate effectively in the proceedings. The reason for this finding was that the conduct of the case in the Crown Court must have been at times incomprehensible and frightening to the two boys, and it was not sufficient that they were represented by skilled and experienced lawyers. The Court also held that there had been a violation of Art 6 on the grounds that they had been denied a fair hearing by ‘an independent and impartial tribunal’. The fixing of the tariff was tantamount to a sentencing procedure and therefore should have been exercised by an impartial judge, rather than a member of the executive, as the Home Secretary clearly was.
Subsequent to, and consequent upon, this decision, the Home Secretary, by this time the Labour politician Jack Straw, announced in March 2000 that legislation would be introduced to provide that tariffs for juveniles should be set by trial judges, in open court, in the same way as they are for adults sentenced to discretionary life sentences. Until that legislation was passed by Parliament, the Home Secretary undertook that in using his statutory power, he would follow the recommendations of the Lord Chief Justice. In July 2000, Lord Chief Justice Woolf issued a practice statement setting out the criteria to be applied in establishing the tariff for juvenile offenders, and in October of that year, in line with those criteria, he set the tariff for both Thompson and Venables at eight years, which meant that they were immediately open to the operation of the normal parole system. Lord Woolf’s decision did not go without challenge both in the media and in the courts, a subsequent application for judicial review being rejected, but perhaps the last words on the matter should remain with him ([2001] 1 All ER 737 at 741):
The one overriding mitigating feature of the offence is the age of the two boys when the crime was committed. However grave their crime, the fact remains that if that crime had been committed a few months earlier, when they were under 10, the boys could not have been tried or punished by the courts. In addition, account has to be taken of the fact that the last seven years, the period of their adolescence, has been passed in custody.
In January 2001, Dame Elizabeth Butler-Sloss, President of the Family Division, granted a permanent injunction banning the media in England from revealing any information about the new identities that Thompson and Venables would live under when they were eventually released from custody. In the light of the many threats that had been made against Thompson and Venables, the order, the first of its kind, was made on the basis of the HRA and Art 2 of the ECHR, in that the court held that it was necessary in order to protect their right to life.
In June 2001, the new Home Secretary, David Blunkett, announced that the Parole Board had agreed to the release on life licence of Thompson and Venables. On 2 March 2010 it was confirmed by the Ministry of Justice that Jon Venables had been recalled to custody following a breach of his licence conditions (see www.publications.parliament.uk/pa/ld200910/ldhansrd/text/100308–0010.htm).
As has been pointed out above, the regime that once applied to juveniles sentenced to indeterminate sentences also applied to adults who were sentenced to mandatory, but indeterminate, life sentences. Not only did the courts accept the Home Secretary’s general power to determine a tariff, but, more contentiously, it had been accepted that the Home Secretary could set an ‘all life’ tariff in appropriate circumstances, such as those in R v Secretary of State for the Home Department ex p Myra Hindley (2000). Hindley had been convicted of murder in 1966 and was sentenced as required by the Murder (Abolition of Death Penalty) Act 1965 to life imprisonment. As the House of Lords later stated, she was subject to a mandatory life sentence, itself subject to a discretionary executive power, vested in the Home Secretary to direct her release on licence at any time. The fact that the Home Secretary had such a discretion to release on licence led to the conclusion that he equally had the discretion not to release her, as long as he complied with the duty to reconsider his decision at reasonable intervals.
Hindley’s case was decided prior to the coming into effect of the HRA and, therefore, in deciding it, the courts considered themselves not at liberty to apply that Act. Subsequently, in an interview in the journal the New Statesman, Lord Chief Justice Woolf, who, as the then Master of the Rolls, had sat in the Court of Appeal in the Hindley case, expressed the view that, in reaching his decision in that case, he had been constrained by the law as it then was. He did concede, however, that the HRA had altered the situation. Consequently, it was likely that in the future domestic courts would follow the ECtHR in T v UK and V v UK, and hold that it would be in breach of Art 6 for the Home Secretary to continue to determine the tariff in murder cases, on the grounds that such a procedure would be a denial of the right to a fair hearing by ‘an independent and impartial tribunal’. Lord Woolf’s interview was widely reported in the news media, with the strong implication that the courts in the future might sanction the release of Myra Hindley.
Subsequent to his interview in the New Statesman, however, the Lord Chief Justice seemed to reconsider the wisdom of a direct challenge to the Home Secretary’s power to set the tariff in mandatory life sentences.
In November 2001, two convicted murderers complained that the Home Secretary had fixed their tariffs higher than had been recommended by the judges at their trial: 20 years instead of 15 years for the first, and 30 years instead of 16 years for the second. They argued that it was incompatible with Art 6(1) of the ECHR for a member of the executive to carry out what was in fact a sentencing exercise. The Court of Appeal, made up of Lord Woolf and Simon Brown and Buxton LJJ, rejected their arguments. In doing so, the Court of Appeal’s disapproving views on mandatory life sentences in general were expressed by Simon Brown LJ, who stated that ([2001] EWCA Civ 1698 para 56):
I accept of course that the mandatory life sentence is unique. But not all the offences for which it is imposed can be regarded as uniquely grave. Rather the spectrum is a wide one with multiple sadistic murders at one end and mercy killings at the other. Lifelong punitive detention will be appropriate only exceptionally.
Nonetheless, the Court of Appeal felt itself constrained by case law from the ECtHR and, in particular, the authority of Wynne v UK decided in 1994 and T v UK and V v UK. In Wynne, the ECtHR decided that no violation arose under Art 5(4) in relation to the continued detention after release, and recall to prison, of a mandatory life prisoner convicted of an intervening offence of manslaughter, the tariff element of which had expired. The ECtHR held that the sentence constituted a punishment for life. In T v UK and V v UK, while citing the Wynne judgment, the ECtHR reiterated that an adult mandatory life sentence constituted punishment for life. On the face of those authorities, the Court of Appeal in Anderson and Taylor declined to challenge the Home Secretary’s power in relation to mandatory life sentences.
Perhaps the Court of Appeal’s reluctance to challenge the executive’s power head-on was based on the realisation that, as the court noted, a decision on the same point was expected within the following year in the ECtHR (Stafford v UK (2002)). It is perhaps not overly cynical to suggest that the Court of Appeal adopted its conservative approach in the realisation that, in the context of the prevailing tense relationship between the Home Secretary and the courts, it was perhaps politic to leave the final decision to remove the Home Secretary’s power to the ECtHR, which decision their Lordships clearly expected.
Derek Stafford was convicted of murder in 1967 and released on licence in April 1979. His licence required him to remain in the United Kingdom, but he left to live in South Africa. In April 1989 he was arrested in the United Kingdom, having returned from South Africa on a false passport. Although the possession of a false passport only led to a fine, he remained in custody due to the revocation of his life licence. He was released in March 1991, once again on a life licence. In 1994 he was convicted of conspiracy to forge travellers’ cheques and passports and sentenced to six years’ imprisonment. In 1996 the Parole Board recommended his release on life licence, having reached the conclusion that he did not present a danger of violent re-offending. The Secretary of State rejected the Board’s recommendation. But for the revocation of his life licence, the applicant would have been released from prison on the expiry of the sentence for fraud in July 1997, and in June 1997 he sought judicial review of the Secretary of State’s decision to reject the Board’s recommendation for immediate release. He was successful at first instance, but both the Court of Appeal and the House of Lords denied his claim and upheld the power of the Home Secretary to revoke his licence and thus effectively detain him under ss 39(1) and 35(2) of the Criminal Justice Act 1991 (the latter subsequently replaced by s 29 of the Crime (Sentences) Act 1997), even though there was no prospect of his committing any violent crime in the future. Both courts, however, expressed unease at their decisions. As Lord Bingham CJ stated in the Court of Appeal ([1998] 1 WLR 503 at 518):
The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the Rule of Law. I hope that the Secretary of State may, even now, think it right to give further consideration to the case.
When the case came before the Grand Chamber of the ECtHR in May 2002, and as the Court of Appeal in Anderson had expected, it held that it was no longer in the interest of justice to follow its previous decision in Wynne. The ECtHR stated that although it was not formally bound to follow any of its previous judgments, it was ‘in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without cogent reason, from precedents laid down in previous cases’. However, it felt that the fixing of the tariff for mandatory life sentences was clearly a sentencing exercise, and that it was no longer possible to distinguish between mandatory life prisoners, discretionary life prisoners and juvenile murderers as regards the nature of that sentencing process. The ECtHR also held that the finding in Wynne that the mandatory life sentence constituted punishment for life could no longer be maintained. It was therefore open to the court to decide that the Secretary of State’s role in fixing the tariff was a sentencing exercise and not merely a matter relating to the administrative implementation of the sentence. As a result, it concluded that the exercise of such power by the Home Secretary was contrary to Art 5(1) and (4) of the ECHR.
When the decision of the ECtHR in Stafford was delivered, the UK press immediately returned to the possibility of the imminent release of the child killer Myra Hindley. What they failed to indicate was that the ECtHR itself, in line with previous statements of the UK courts, had actually recognised the validity of ‘whole life’ tariffs in exceptional circumstances. Its decision was merely that it was for the courts rather than the executive to make such recommendations. In any event, Hindley died in prison in November 2002.
The first person actually to benefit from the Stafford decision was Satpal Ram, who was released from prison in June 2002 after having served more than 15 years for a murder he claimed was committed in self-defence in a racial attack. The previous Home Secretary had overturned a Parole Board recommendation to release Mr Ram in 2000. The succeeding Home Secretary preferred to release him rather than contest an action for judicial review of his predecessor’s decision, recognising that Stafford made any argument to the contrary untenable.
By November 2002, the appeals in the Anderson and Taylor cases had reached the House of Lords and were considered by a seven-member panel, indicating their importance. The essential issue under consideration was the effect that the Stafford decision in the ECtHR would have on English law, s 35(2) and (3) of the Criminal Justice Act 1991 having been replaced by similar provisions under s 29 of the Crime (Sentences) Act 1997. In the event, the House of Lords followed the decision of the ECtHR and held that the fixing of the tariff for a convicted murderer was legally indistinguishable from the imposition of sentence. Consequently, to ensure compatibility with Art 6(1), any such tariff should be set by an independent and impartial tribunal and not the Home Secretary, who was part of the executive. It was therefore incompatible with Art 6 for the Home Secretary to fix the tariff of a convicted murderer. However, the House of Lords went on to decide that it was not possible to interpret s 29 of the Crime (Sentences) Act 1997 in such a way as to make it compatible with the rights provided under the ECHR. As a result, the House of Lords issued a declaration of incompatibility to the effect that s 29 was contrary to the right under Art 6 to have a sentence imposed by an independent and impartial tribunal.
The above series of cases demonstrates how the implied wishes of the Court of Appeal in Anderson could be given express effect in the later House of Lords’ decision, without the possibility of any direct accusation of political interference on the part of the judiciary.
The political sensitivity of the preceding cases, and the extent to which they challenge executive power, may go some way to explain the apparent conservatism of the decision of the House of Lords in the Lichniak and Pyrah cases, considered previously. A close reading of the cases certainly reveals grounds for the House of Lords to overturn those decisions and to remove mandatory life sentences altogether.
The foregoing analysis has used the term ‘tariff’ to refer to the period that a person sentenced to a life term must serve for the purposes of punishment. It should be noted, however, that, in a Practice Statement issued in May 2002, the Lord Chief Justice accepted the recommendation of the Sentencing Advisory Panel that it should be replaced by the clearer expression ‘minimum term’.
The political tension around the issue of sentencing was further heightened when, in May 2003, Home Secretary Blunkett announced his intention to introduce proposals that would introduce a new statutory system in relation to sentencing in murder cases, together with a new Sentencing Guidelines Council to advise judges on appropriate sentencing. The Home Secretary made it clear that he considered that the judges had failed to provide clear and consistent sentencing. Indeed, the proposal can be seen as a direct attack on the Lord Chief Justice, Lord Woolf, whose directive on sentencing, issued in 2002, had indicated that the previous 14-year minimum ‘starting point’ should be replaced by 16 years for more serious cases and 12 years for lesser crimes such as mercy killings. The Home Secretary was quoted as saying: ‘I share public concern that some very serious criminals seem to be serving a relatively short spell in prison… It will be Parliament that decides the structure. It will be judges that act within it.’ Not surprisingly, the Bar Council described the proposal as ‘constitutionally a leap in the dark’ and said that the Home Secretary was trying to ‘institutionalise the grip of the executive around the neck of the judiciary’.
The proposed scheme was subsequently attacked by Lord Woolf in a speech on the Bill in the House of Lords in June of that year and in the background notes for which he stated that:
The indirect, knock-on effect of the proposed minimum period is highly undesirable… Sentencing, particularly in relation to murder, should be removed from the political arena. The present proposal will have the effect of increasing political involvement.
The Lord Chief Justice also took exception to the proposal to appoint a senior police officer to the Sentencing Council (formerly the Sentencing Guidelines Council) and more generally highlighted the logical contradiction in the Home Secretary’s approach. As Lord Woolf stated:
It is surely extraordinary to propose a council to make guidelines and at the same time include your own guidance in the legislation establishing the council.
Nonetheless, both the Council and the sentencing guidelines in relation to murder were implemented in the Criminal Justice Act 2003, and were the first of its major changes in the criminal justice system to be brought into effect in January 2004.
Section 269 of the Act applies to any murders for which sentence is passed on or after 18 December 2003. It introduces a three-tier system (detailed in Sched 21) and requires the courts to apply the following sentencing principles:
The whole life recommendation does not apply to offenders below the age of 21, but offenders aged 18 to 20 years of age will be subject to either the 15- or 30-year starting points. Those aged 17 years or under will be subject to a 12-year starting point (House of Commons Briefing Paper, Number 3626, 12 November 2015, Mandatory life sentences for murder, Sally Lipscombe and Jacqueline Beard, 2015, London: House of Commons Library).
It should be emphasised that the above recommendations state starting points in sentencing, and once trial judges have determined the starting point by applying the above principles, they may consider aggravating and mitigating factors (examples of which are set out in the Act) and may move up or down from the starting point to arrive at the appropriate minimum term.
In R v Jones; R v Chandi, Multani, Khangura and Dosanjh; R v Ashman; R v Hobson (2005), the Court of Appeal held that the guidance in the Criminal Justice Act 2003 was provided to help a court assess the appropriate sentence. Although a court was to have regard to this guidance, each case would depend crucially on its particular facts and a court, proposing to depart from the guidelines, would have to set out its reasoning.
In the light of previous experience in the courts, and in a clear endeavour to ensure compliance with the ECHR, s 269 provides that the scheme is not compulsory. However, s 270 requires any judge who departs from the recommended sentences to explain their reasons for so doing in open court. In any event, the Attorney General has the power to challenge unduly lenient sentences and will be able to challenge any minimum term that he or she considers to be unduly lenient under the Criminal Justice Act principles (for further consideration of the Criminal Justice Act 2003, see above, 11.5.1).
The Home Secretary has – therefore – since the Anderson case in 2002 played no role in the setting of the minimum term to be served by an offender sentenced to life imprisonment for murder. If an offender sentenced to life imprisonment for murder wishes to appeal against the minimum term fixed then he or she can do so to the Court of Appeal.
The Secretary of State has the power under s 30 of the Crime (Sentences) Act 1997 to order the release of a prisoner subject to a mandatory life sentence in ‘exceptional circumstances’, justifying release on compassionate grounds. The ECtHR criticised this provision taken in conjunction with s 269, CJA 2003 in Vinter v United Kingdom (2013) as incompatible with Art 3 ECHR. To be compatible there had to be the possibility of release or review. The Court of Appeal in Attorney General’s Reference (No. 69 of 2013) (R v Newell, R v McLoughlin) (2013) declined to follow Vinter, arguing that the scheme was sufficiently certain and that the UK was acting within its margin of appreciation. The statute was not incompatible with Art 3 ECHR.
Convicted prisoners are currently barred by s 3 of the Representation of the People Act 1983 from voting in parliamentary or local elections. In March 2004, the ECtHR ruled in Hirst v UK (No 2) that the UK government’s blanket ban prohibiting sentenced prisoners from voting was unlawful. Despite rejection in 2005 of the appeal against this judgment, which was mounted by the UK government – two protracted public consultation exercises – the same exclusionary policy remains in place. In an open letter (dated 21 May 2010) addressed to the Committee of Ministers at the Council of Europe, Juliet Lyon CBE, Director of the Prison Reform Trust, stated that up to 73,000 prisoners had been unlawfully denied the right to vote in the UK general and local elections on 6 May 2010. Nineteen of the 47 countries in the Council of Europe – which include all 27 EU Member States – have no restrictions on prisoners voting. In France and Germany courts have the power to impose loss of voting rights as an additional punishment, while Sweden, Switzerland and Denmark are among countries with no ban at all on voting for prisoners. Ireland ended a voting ban in 2006, giving all prisoners a postal vote in the constituency where they would normally live. In July 2011, the ECtHR Grand Chamber accepted a referral in the case of Scoppola v Italy involving issues analogous to those which arose in Hirst. The UK government successfully applied to intervene in that case and the Court granted an extension of six months from the date of the final decision in the Scoppola judgment before the government had to comply with its obligations to change the current law as it applies to prisoners. During this time a further 2,500 applications from prisoners in the UK were submitted to the ECtHR.
The Grand Chamber of the ECtHR handed down judgment in Scoppola in 2012. The judgment does not overrule Hirst but substantially increases the margin of appreciation afforded to governments to implement the decision. The ECtHR reaffirmed the principles set out in Hirst, in particular that disenfranchisement which affects a group of people generally, automatically and indiscriminately, based solely on the fact that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or gravity of their offence and their individual circumstances, is not compatible with Art 3 of Protocol No 1. However, the ECtHR held that proportionality did not require that the decision to deprive a convicted prisoner of the vote be taken by a judge. The clock is now ticking again for the UK government to implement the decision of the ECtHR.
In November 2012, the government published the Voting Eligibility (Prisoners) Draft Bill for pre-legislative scrutiny by a joint committee of both houses. It set out three options: a ban for prisoners sentenced to four years or more, a ban for prisoners sentenced to more than six months and a restatement of the existing ban. The Committee published its report on 18 December 2013 and recommended that the government should introduce legislation to allow all prisoners serving sentences of 12 months or less to vote in all UK parliamentary, local and European elections. Apart from a brief response in February 2014, the government has not responded substantively and did not bring forward a Bill with the 2014 Queen’s Speech.
In October 2013 the Supreme Court gave judgment in the case of R (Chester) v Secretary of State for Justice. Mr Chester, a prisoner serving a sentence for murder, sought a declaration of incompatibility, arguing that domestic law was in breach of the ECHR, as found by the ECtHR. The Supreme Court held that that while, under s 2(1) of the Human Rights Act 1998, the Courts were obliged only to ‘take into account’ judgments of the European Court of Human Rights, a decision of the Grand Chamber of that court would have to involve some truly fundamental principle of domestic law or some most egregious oversight or misunderstanding before it could be appropriate for the Supreme Court to contemplate an outright refusal to follow it; that the Grand Chamber had clearly and consistently concluded that a general ban on convicted prisoners voting, as contained in s 3(1) of the Representation of the People Act 1983 and s 8 of the European Parliamentary Elections Act 2002, was incompatible with Art 3 of the First Protocol to the ECHR and, therefore, there was no prospect of any further meaningful dialogue between the United Kingdom and the European Court of Human Rights on the issue. The court also stated that prisoner voting did not involve some fundamental aspect of domestic law such as would justify the court refusing to apply the ECtHR decisions, but that, in circumstances where a declaration of incompatibility had already been made in other domestic proceedings, the matter was under active consideration by Parliament and the European court would without doubt uphold a ban depriving murderers serving sentences of life imprisonment of the right to vote, it would not be appropriate for the court to grant a declaration of incompatibility.
A further decision by the Supreme Court in the summer of 2014, Moohan v Lord Advocate (2014), confirmed that a blanket ban on prisoner voting in respect of a referendum was not unlawful, whether in domestic law, under the ECHR or under EU law.
The Crown Prosecution Service (CPS) was introduced in 1986. It is important to understand the five types of prosecution that existed before this time and how the CPS was supposed to resolve the criticisms of the old system. What sort of biases can occur in the use of prosecutorial discretion and why? Why were the police regarded as unsuitable to exercise the prosecutorial discretion? What were the police defences to those criticisms? The police argued that conviction rates vindicated the way they exercised their discretion. The Code for Crown Prosecutors (2013) specifies factors that should weigh for and against a prosecution.
There are a range of out-of-court disposals available as an alternative to prosecution.
Judicial control of prosecution policy is very limited and amounts to being able to correct only irrational, unlawful or fraudulent decisions or those contrary to CPS policy (see R v Metropolitan Police Commissioner ex p Blackburn (1968)).
Bail is the release from custody (whether after arrest, police interview or remand in a prison), pending a criminal trial, of an accused. Bail may be granted with or without conditions. For example, conditional bail might include that a person connected with a defendant in some way stands surety, on the promise that money will be paid into the court if the defendant does not turn up for their trial or otherwise absconds. Other conditions that might be attached to the grant of bail include reporting at a police station at specified times or so-called doorstep conditions, whereby the police can turn up at any time to check that a defendant is in a place (their home or workplace, usually) at a time when they should be. Not contacting witnesses, living at a specified address and surrendering a passport or otherwise not applying for travel documents are all other possible bail conditions. The important issue raised here is how best the bail regulations should be framed so as to balance the conflicting interests of public safety and the liberty of the defendant, who enjoys the presumption of innocence until and in the event of their guilt being proven in a court of law. Public safety would perhaps be best served by keeping everyone accused of a crime in custody until their trial. This, though, would clearly be unnecessarily draconian. Conversely, civil liberty and the presumption of innocence might be best served by allowing every suspect to remain free, however heinous the crime of which they have been accused and whatever their past record.
Although English law does not recognise plea bargaining, the practice whereby judges give an advance indication of sentence on the basis of a guilty plea is now established. This must take place in open court. Prosecutors have a responsibility to scrutinise the basis of such guilty pleas and only to accept them if accurate.
Cases relating to s 3 powers:
Cases relating to declarations of incompatibility:
Cases relating to sentencing:
By s 229 of the Criminal Justice Act 2003, the courts are obliged to consider whether an offender has fallen into a category of dangerousness by virtue of being convicted of a ‘specified offence’ and it requires the courts to consider degrees of risks of serious harm from further offences by such an offender.
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www.cps.gov.uk
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