England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CHELMSFORD
MR JUSTICE DRAKE

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/05/2009

The Lord Chief Justice of England and Wales :

1. On 28 October 1986 at the Crown Court at Chelmsford before Drake J and a jury Jeremy Bamber (the applicant) was convicted of murdering his adoptive father, his adoptive mother, his adoptive sister, and his nephews, her 6 year old twin sons, on 7 August 1985.
2. In December 2002, following a reference by the Criminal Cases Review Commission, these convictions were upheld in this court. (See (2002) EWCA Crim 2912)
3. The present application is not concerned with the convictions, or their safety, or any grounds of appeal against them. The issue to be addressed arises from the sentencing process, which culminated on 16 May 2008 in a decision by Tugendhat J who, following a review of sentence conducted in accordance with schedule 22 of the Criminal Justice Act 2003 (the 2003 Act) ordered that the applicant should be subject to what can be summarised as a "whole life tariff" sentence for these offences. This order is the subject of the present application.
4. On 28^th April 2009 we heard the submission advanced on the applicant's behalf by Mr Richard Horwell QC. We refused the application and indicated that we would reduce our reasons to writing.

Brief Summary of the Facts

5. These murders were planned. On 7 August 1985 the applicant, then aged 24 years, broke into the family home. The members of his family were asleep. He fired a total of 25 bullets from a rifle into their bodies. They were all killed.
6. As a result of these deaths the applicant stood to make a considerable financial gain. With the death of his sister, and her children, he was the sole beneficiary to his parents' estate, valued in excess of £400,000.
7. The pre-planning incorporated a scheme to avoid detection. The applicant's sister had a history of mental illness. He sought to divert blame to her. After her death he positioned the body so that it would appear that she had killed the family, including her two infant sons, and then committed suicide by shooting herself. The sound moderator was removed from the murder weapon. It was concealed in a downstairs cupboard. If the sound moderator had remained attached, the investigations would almost certainly have concluded that the applicant's sister could not have committed suicide.
8. In a further step the applicant removed the telephone in the downstairs kitchen from its cradle. Having constructed the scene so as to cast suspicion on his sister, the applicant telephoned the police to report a conversation with his father who, according to the applicant's report, had asked him to come over because his sister had gone crazy and had a gun. The line then went dead. This report appeared later to be reinforced by the absence of the kitchen telephone from its cradle, which suggested that the father had been attacked while making the telephone call to his son for help. The applicant went on to tell the police that his sister had a history of psychiatric illness. He confirmed that there were guns at his father's home.
9. A police car was despatched to the scene. Basing themselves on what the appellant had told them the police believed that his sister had been responsible for what had happened, and that a fraught situation might still obtain. They decided to wait until daylight before entering the house. Armed officers entered at 7.45. They found all 5 occupants dead from multiple gunshot wounds.
10. The applicant's father, was 61 years old. From a later examination of the home it appeared that he was shot 4 times while he was upstairs in his home, but that he managed to make his way downstairs where a violent struggle took place in the kitchen. During this struggle he was struck a number of times with the rifle. He was found dead in his kitchen. The applicant's mother was dead on the floor in her bedroom, and his sister was lying on the floor of her mother's bedroom. The automatic rifle was found on her body with her right hand resting lightly on it, and the muzzle of the weapon just below wounds to her neck. The two small children were dead in their beds, shot through the head.
11. In the immediate aftermath and during the course of the police investigation, the applicant made a number of public appearances affecting profound distress and grief. For a while, the deception looked as though it might work, and the trial judge was later to express concern about the "less than thorough investigation" conducted by the police because they were "immediately persuaded" that the sister was responsible for the killings. However the applicant's former girlfriend reported to the police that he had told her of his plans to kill his family, and indeed of his involvement in their killing. The applicant was arrested and remanded in custody from 29 September 1985.
12. On the basis of these facts the Crown contended and, following conviction, the sentencing decision had to reflect that these five murders were carefully planned, that the applicant made careful and sophisticated preparation to carry out the killing, to exculpate himself and to cast blame on his sister, and that the execution of his plans was utterly ruthless. This was a crime at the highest level of seriousness.

The legislative background

13. In view of the submissions addressed to the court on behalf of the applicant we must briefly remind ourselves of the sentencing framework which applied at the date of conviction. Section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 provided that the sentence for murder was a mandatory sentence of imprisonment for life. By section 1(2) the court was empowered to "declare the period which it recommends" as the minimum period which should elapse before the release of the prisoner should be ordered. Two specific points relevant to the present and similar applications require emphasis. First, the recommendation was never intended to be and never was more than a recommendation, and it is plain that although the Secretary of State was required and would wish to attend to it, he was not bound by it. Second, it was never understood that every mandatory sentence of life imprisonment should automatically be regarded as a whole life sentence: subject to issues of public safety, the possibility of an eventual release was implicit in the vast majority of such cases. Subsequent sentencing enactments governed the exercise of the power of the Secretary of State to decide the time when the convicted murderer could, notwithstanding the mandatory sentence, be released from custody. That responsibility continued to be vested exclusively in the Secretary of State, and not the judiciary.
14. In 1986 therefore, the trial judge was enabled to make a recommendation about the minimum period which should elapse before the offender might be released on licence. His assessment was case specific, based on his judgment of the true level of the defendant's culpability and the immediate and individual circumstances of the case. His recommendation reflected his view about the "actual length of detention necessary to meet the requirements of retribution and general deterrence". The Lord Chief Justice was similarly involved in the process, but he was involved in each and every such case. In making his recommendation the Lord Chief Justice was removed from the immediate circumstances of the individual case, but basing himself on the report prepared by the trial judge for the Secretary of State, and his much wider, nationwide responsibilities, his recommendation ensured both appropriate oversight and consistency of approach to the assessment of the tariff period. Neither the trial judge nor the Lord Chief Justice decided the length of the period to be served by the offender for the purposes of retribution and general deterrence. Their role was advisory.
15. In the present case, following conviction, Drake J imposed the mandatory sentence of life imprisonment on each count of murder. In his sentencing remarks he recommended that a minimum of 25 years should be spent in prison. According to a contemporaneous newspaper report the judge stated

"I have to consider when I think it is likely to let you live in the community. But I think it is difficult to foresee whether it will ever be safe to release into the community someone who can shoot and kill five members of his own family, including two little boys asleep in their beds"

That observation would not have been before the Lord Chief Justice, Lord Lane.

16. Consistently with practice, Drake J wrote subsequently to the Secretary of State setting out his assessment of the case and his views about the length of detention necessary to meet "the requirements of retribution and general deterrence". His assessment of the case was that this was an "exceptionally monstrous crime". He drew particular attention to the way in which the applicant had decided to throw suspicions on to his sister, and how the plan very nearly led "to him escaping detection". He then commented that "when I made the recommendation in court I emphasised that it was 25 years as a minimum" (his underlining).
17. Shortly afterwards Lord Lane, again in accordance with practice, and writing on the same document as that signed by Drake J, expressed himself in these terms: "I agree with Drake J, adding that for my part I would never release him". (Again, his underlining). It is suggested on the applicant's behalf that Lord Lane was indicating his agreement which Drake J's recommendation, and not, as Tugendhat J concluded, recommending a whole life tariff.
18. We disagree. It is quite clear to us, as it was to Tugendhat J, that while Lord Lane indicated his agreement with Drake J's assessment of the crime as "exceptionally monstrous", when he was addressing the minimum period which he was recommending, he was deliberately emphasising that his recommendation was that the applicant should never be released. If he had been agreeing that the 25 year minimum recommendation made by Drake J was appropriate, he would have confined himself to the words "I agree with Drake J", or even, "I agree", or, simply "25 years". The additional words he used expressly indicated that his view about the minimum term did not coincide with that of Drake J, and that even as a "minimum", 25 years was an inadequate punitive term. Lord Lane's recommendation was that the appellant should "never" be released. The Secretary of State was thus provided with two judicial recommendations. He was entitled to choose between them, or to adopt neither of them.
19. In 1988, the Secretary of State, in agreement with the Lord Chief Justice, ordered that the applicant should be subject to a "whole life tariff".
20. On 15 December 1994, in accordance with the practice laid down by the House of Lords in Doody [1994] 1AC 531, the applicant was informed that the Secretary of State had concluded that "the requirements of retribution and deterrence could only be satisfied by you remaining in prison for the whole of your life". As far as we are aware, and after investigation by Mr Horwell with his client it is apparent that there was no response to an indication in the letter that the Secretary of State would be willing to entertain written representations by or on behalf of the application about the whole life tariff, but whether such representations were received or not, the whole life order was not varied. There the matter appeared to rest.

Developments after 1994

21. In Anderson [2003] 1AC 837 the House of Lords concluded that the right of an offender under Article 6 of the European Convention on Human Rights (the Convention) to have sentence imposed on him by an independent and impartial tribunal was infringed by the arrangements by which the Secretary of State was involved in setting the minimum term to be served by an offender sentenced to life imprisonment for murder. The present application arises directly from the new arrangements put in place to address this decision.
22. The Secretary of State's responsibility for the assessment of the appropriate minimum term was ended by the 2003 Act. Subject to any appeal to this court, or a reference to this court by the Attorney General of an unduly lenient sentence, the responsibility for fixing the minimum term to be served, or for making a whole life order is vested in the trial judge.
23. To cater for those cases where, as here, the Secretary of State had already notified the prisoner of the minimum period to be served by him as the tariff period, including a whole life tariff, paragraph 3 of schedule 22 of the Act entitled the prisoner to seek a review of minimum term, or whole life tariff set by the Secretary of State. The process is now governed by schedule 22.
24. Paragraph 3 of schedule 22 provides:

"(1)On the application of the existing prisoner, the High Court must, in relation to the mandatory life sentence, either –

(a) order that the early release provisions are to apply to him as soon as he has served that part of the sentence which is specified in the order, which in a case falling within paragraph 2(a) must not be greater than the notified minimum term, or

(b) in a case falling within paragraph 2(b), order that the early release provisions are not to apply to the offender.

(2) In a case falling within paragraph 2(a), no application may be made under this paragraph after the end of the notified minimum term.

(3) Where no application under this paragraph is made in a case falling within paragraph 2(a), the early release provisions apply to the prisoner in respect of the sentence as soon as he has served the notified minimum term (or, if he has served that term before the commencement date but has not been released, from the commencement date).

(4) In this paragraph "the notified minimum term" means the minimum period notified as mentioned in paragraph 2(a), or where the prisoner has been so notified on more than one occasion, the period most recently so notified. "

25. Paragraph 4 of schedule 22 provides:

"(1) In dealing with an application under paragraph 3, the High Court must have regard to –

(a) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it,

(b) where the court is satisfied that, if the prisoner had been sentenced to a term of imprisonment, the length of his sentence would have been treated by section 67 of the Criminal Justice Act 1967 (c.80) as being reduced by a particular period, the effect which that section would have had if he had been sentenced to a term of imprisonment, and

(c) the length of the notified minimum term or, where a notification falling within paragraph 2(b) has been given to the prisoner, to the fact that such notification has been given.

(2) In considering under sub-paragraph (1) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, the High Court must have regard to –

(a) The general principles set out in Schedule 21, and

(b) Any recommendation made to the Secretary of State by the trial judge or the Lord Chief Justice as to the minimum term to be served by the offender before release on licence.

(3) In this paragraph "the notified minimum term" has the same meaning as in paragraph 3."

26. The applicant sought a review of his sentence. The matter was considered by Tugendhat J. He refused an application for oral hearing. He considered the recommendations made by the trial judge, and the views expressed by the Lord Chief Justice and the Secretary of State. He was provided with victim impact statements, together with written submissions advanced on behalf of the applicant. These submissions noted the positive behaviour by the applicant in prison. Tugendhat J addressed the general principles relating to sentences following conviction for murder set out in schedule 21 of the 2003 Act. He concluded that there was no reason to depart from the views expressed by the Lord Chief Justice and the Secretary of State. In accordance with para 3(1)(b) of schedule 22 of the 2003 Act he ordered that the early release provisions should not apply to the applicant. In short, this would be a whole life order.

The submission on behalf of the applicant

27. It is argued in written grounds in support of the application that this whole life order contravenes the rights provided for the applicant by the Convention. Article 7 of the Convention is said to be infringed by the imposition in 2008 of the whole life order for offences committed in 1985 by reference to sentencing criteria created in the 2003 Act. Furthermore, as there is no power in the court to review a whole life sentence, so that it is reducible neither de jure nor de facto, the applicant's rights under articles 3 and 7 are engaged. Quite separately from the Convention, it is suggested that the whole life order made by Tugendhat J is excessive and unjustified. A fixed term should be substituted.
28. The main oral submission advanced by Mr Horwell can be briefly summarised. He did not contend that a whole life sentence was incompatible with the application's Convention rights, and further accepted that a whole life sentence may represent just punishment. However the applicant, and others in his position, who, following the review were made subject to a whole life order, were left without any hope of or possible consideration being given to release, whatever his or their progress and therefore, such a sentence, reducible neither de jure nor de facto, was incompatible with article 3 rights. Mr Horwell drew attention to the limited circumstances in which release could be ordered by the Secretary of State contained in section 30 of the Crime (Sentences) Act 1997. This permits the release of a life prisoner on licence where exceptional circumstances exist justifying the release on "compassionate grounds". Mr Horwell submitted that as enacted, this is extremely restrictive in any event, and provides no hope of release on the grounds of, say, exceptional progress in prison, and in any event, inquiry has revealed that in relation to prisoners subjected to whole life tariffs, none has been released on the basis of the exercise of these powers.
29. The foundation for Mr Horwells' submission is the decision of the Grand Chamber of the European Court of Human Rights in Kafkaris v Cyprus, 12^th February 2008. Stripped to essentials the issue before the Grand Chamber was whether the mandatory sentence of life imprisonment following conviction of murder in Cyprus constituted a breach of the defendant's article 3 rights. However in Cyprus the mandatory order was not subject to any form of judicial discretion and the sentencer did not and could not reflect the differing levels of culpability of those convicted of murder and the varying levels of gravity of all such cases. There was no parole or licensing system, and, effectively, no arrangements for the admission back into society of any convicted murderer. The exception to this blanket prohibition was vested in the President of Cyprus who was entitled to remit or commute any sentence or to order conditional release of any convicted prisoner back into the community. Any such order required the approval of the Attorney General to whom any applications were to be made.
30. The Court's decision was that the imposition of a sentence of life imprisonment on an adult offender was not prohibited by or incompatible either with article 3 or with any other article of the Convention. However concern arose from the imposition of an irreducible life sentence. If a life sentence was de jure and de facto reducible then, although in practice an individual life sentence might be served in full, the sentence itself was not "irreducible". Mr Horwell suggested that the wide powers vented in the President of Cyprus were to be contrasted with the narrow powers of the Secretary of State under section 30 of the 1997 Act. It therefore could not be said that any whole life sentence imposed in this jurisdiction was reducible so as to avoid a breach of article 3.
31. There are a number of problems with the decision in Kafkaris as it applies in this jurisdiction. The most immediate, and ultimately decisive, is that it has been examined in this jurisdiction in the Court of Appeal in R v Bieber [2008] EWCA Crim 1601 and in the House of Lords in R(on the application of Wellington) [2008] UKHL 72. These decisions bind us in this court. The decision of the Grand Chamber in Kafkaris does not. In any event, however, for Mr Horwell's submission to succeed it is necessary to equate the whole life system as operated in Cyprus following a mandatory life sentence, and the whole life system operated in this jurisdiction. Yet as we have explained the mandatory order of life imprisonment on conviction here did not and does not carry with it the necessary consequence of incarceration for the remainder of the prisoner's natural life.
32. As a result of the 2003 Act, following the imposition of the mandatory life sentence, the trial judge is required to assess rather than merely recommend the minimum term to be served by the appellant for the purposes of punishment and deterrence. Normally that is a finite period, and once it has been served, subject to considerations for public safety, which are addressed by the Parole Board, the prisoner may be released. Indeed once the Parole Board concludes that it is safe for him to be released, he is entitled to be released. The whole life order is exceptional. The vast majority of convicted murderers are not made subject to it. Where they are, this is not the consequence of an inexorable statute but a judicial decision, subject to review in this court, that the circumstances of the particular case are so grave that a whole life order should be imposed. In this case therefore, we are concerned with a whole life order imposed in an extreme case, rather than a whole life order which applies to every case of murder, whatever the circumstances.
33. In Bieber it was submitted that a life sentence "without any prospect of release or any reconsideration of the facts of the case and regardless of any changes which might occur in the mind or behaviour of the inmate or progress made by him towards rehabilitation" amounted to inhuman treatment. Assuming for the purposes of the argument that the whole life order imposed on Bieber was an irreducible life sentence, this court did not accept that it followed from the decision in Kafkaris that such a sentence to reflect "appropriate punishment and deterrence for a very serious offence" was in potential conflict with article 3. The conclusion was expressed in these observations by Lord Phillips of Worth Matravers CJ:

" While under English law the offence of murder attracts a mandatory life sentence, this is not normally an irreducible sentence. The judge specifies a minimum term to be served by way of punishment and deterrence before the offender's release on licence can be considered. Where a whole life term is specified this is because the judge considers that the offence is so serious that, for purposes of punishment and deterrence, the offender must remain in prison for the rest of his days…We do not consider that the Strasbourg Court has ruled that an irreducible life sentence, deliberately imposed by the judge in such circumstances, will result in detention that violates article 3. Nor do we consider that it will do so".

34. The court went on to consider that limited powers granted to the Secretary of State under section 30 of the 1997 Act. The court believed that in practice this power was used "sparingly". The court, argued Mr Horwell, was not as well informed as we are, following the inquiry of the relevant Department, revealing that there have been no such cases, at any rate where the judge imposed a whole life order by way of punishment. If, however, the continued detention of a prisoner in circumstances which amount to inhuman or degrading treatment were to arise, then, assuming the Secretary of State failed to exercise his powers under section 30 of the 1997 Act, he would be subject to a judicial review requiring him to do so. In any event, in Bieber the court concluded that the question whether continued imprisonment amounts to inhuman or degrading treatment does not arise for consideration in the context of a whole life order properly imposed to reflect the appropriate punishment does not amount to inhuman or degrading treatment.
35. In Wellington the House of Lords examined Kafkaris in the context of extradition proceedings taken in the United States by a prosecutor in Missouri and in effect adopted the decision in Bieber. Lord Hoffman agreed that an irreducible life sentence, imposed to reflect the requirements of punishment and deterrence for a particularly heinous crime, was not in potential conflict with article 3. Lord Scott adopted precisely the same approach. He said, "Once, however, it is accepted that a full life tariff may be a just punishment, merited by the heinous quality of the crime or crimes for which the sentence has been, or may be, imposed, reliance on the denial of possibilities of atonement or redemption seem to me to miss the point of the sentence…if a whole life sentence of imprisonment without parole is a just punishment for the crime…I do not follow why it is said to require a reduction of the length of the just punishment sentence". Lord Brown of Eaton-under-Heywood concluded that where a whole life term was fixed at the date of sentencing "the prisoner's individual circumstances (including naturally the circumstances of his particular offending) will have been considered and will have been thought by the judge (or the Court of Appeal) to merit that degree of punishment, draconian though undoubtedly it is".
36. In our judgment it is plain that the House of Lords adopted the reasoning of this court in R v Bieber. In relation to whole life terms imposed in cases of extreme gravity, we respectfully suggest that the decision of the Grand Chamber in Kafkaris does not support the argument on behalf of an applicant or appellant that the whole life sentence imposed in such circumstances constitutes a breach of any of his Convention rights. In our judgment therefore nothing in the Convention meant that Tugendhat J was precluded from making a whole life order if, in his judgment, such an order represented appropriate punishment for extreme criminality resulting in five murders.
37. We have fully examined the contention that the review procedure created by the 2003 Act constitutes or may constitute a breach of the applicant's article 7 rights. This issue was raised by Mr Edward Fitzgerald QC in R v Pitchfork, which was heard before a differently constituted court, two days after the argument in the present application was concluded. As developed by Mr Fitzgerald, it was contended that the judge conducting the 2003 Act review is virtually bound to adopt the judicial recommendation made by the trial judge or Lord Chief Justice, alternatively that the judicial recommendations should be accorded primacy ahead of any of the considerations in schedule 21 of the 2003 Act. For the reasons set out in the judgment in R v Pitchfork, which will be handed down on the same occasion as this judgment is handed down, we disagree with the submission, which in any event is inconsistent with an earlier decision of this court in R v Caines, R v Roberts [2006] EWCA Crim 2915. As we shall explain in R v Pitchfork, and repeat for the purposes of this judgment, the general common law principles, prohibiting retrospectivity in the criminal law, now found in article 7 which provides that "a heavier penalty shall not be imposed than the one which applied at the time when the criminal offences was committed", are preserved by the express statutory provision which means that the outcome of the review process is that the prisoner cannot be disadvantaged. The term to be served may be reduced, or maintained, but it cannot be increased or extended.
38. We must address some further submissions. Mr Horwell suggested that Tugendhat J misdirected himself. Our attention was drawn to the comment "… there is no reason for me to depart from the view of the Home Secretary and the Lord Chief Justice in this case". If Tugenhat J allowed the view of the Secretary of State to influence his decision, plainly he would have been wrong. It is however clear to us that in expressing himself as he did, he was simply indicating that the end result of his reflection on the issues led him to the same conclusion as the Lord Chief Justice and the Secretary of State. That was a conclusion he was entitled to reach.
39. It is equally clear that the applicant was notified in writing, many years ago, that he would indeed be subject to a whole life order. It simply cannot be suggested that there is some unfairness arising from Tugendhat J's decision, as if, by making the order he did, he had somehow suddenly interfered with a realistic expectation in the applicant's mind that he would shortly reach the point in his sentence where his release might arise for consideration. It is perhaps important to underline that even if the 25 year period had been adopted by Tugendhat J, that would not have involved the applicant's release at the end of the period, but that attention could then have been given by the Parole Board to the possibility of his release on licence.
40. The occasions when a whole life order should be made whether by a sentencing judge, or the judge conducting the review under the 2003 Act, are rare, and should be reserved for the most extreme cases. We were asked to consider a number of decisions where a whole life order was not made, or was quashed on appeal, notwithstanding the extreme gravity of the offences. We have considered them. Our concern, however, is with this particular sentence. We can see no possible basis for interfering with Tugendhat J's decision. It was neither wrong in principle nor did it produce a manifestly excessive result. We would, however, and unusually, go further. On conviction of these crimes, even when committed by a relatively young man, punishment and retribution in the form of a whole life order was fully justified.