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Lord Bingham of Cornhill
Lord Chief Justice of England

Newsam Memorial Lecture: "The Mandatory Life Sentence for Murder"

Police Staff College, Bramshill Hook, Hampshire

13 March 1998

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It is a cardinal principle of morality, justice and democratic government that an offender guilty of crime should be sentenced by the court to such penalty as his crime merits, taking account of all the circumstances including the nature of the crime, the circumstances of the offender, the effect of the crime on the victim and the victim's family, the need to prevent the offender from re-offending and deter others from offending in the same way and the need to protect the public.

Authorities such as More, Coke, Bacon and Clarendon recognised the need for a right balance between crime and punishment (endnote 1). A French author in 1898 entitled his work "L'Individualisation de la Peine" (endnote 2), the fashioning of the penalty to the needs of the individual case. Parliament has recognised the principle when enacting, in 1991, that a custodial sentence should save in special circumstances be for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence (endnote 3). I doubt if there is anyone in this knowledgeable and experienced audience who would question the validity of this principle. Indeed, I doubt if anyone who was not an anarchist, a fascist or a revolutionary would wish to do so.

But in the case of murder this principle has, quite deliberately, been cast aside. Parliament has enacted that a person convicted of murder shall be sentenced to imprisonment for life (endnote 4). So, in the case of an adult offender convicted of murder, one sentence and one sentence only can be passed, whatever the nature of the crime, however strong the mitigating circumstances, whatever the position of the offender, the victim and the victim's family, however minimal the need to prevent the offender from re-offending or to deter others from offending in the same way, however negligible, on the particular facts, the need to protect the public. The penalty, far from being individualised, is generalised to the ultimate degree.

In practice, of course, our sentencing regime is not as undiscriminating as this statement, accurate though it is, might suggest. For the sentence pronounced by the court is a formula, not a meaningless formula, but a formula which gives no real clue to the offender, to the victim, to the media or to the public at large, what in practical terms - that is, in years to be served in prison - the sentence means. That is decided later.

But it is not decided by a judge, an experienced professional, immune from all extraneous pressures, weighing all aspects of the particular offence and the particular offender, drawing on his experience and that of his colleagues, giving detailed reasons in open court, and imposing a term of years or a minimum term of years which, if too severe, can be challenged on appeal by the offender (endnote 5) and, if too lenient, can be challenged on application by the Attorney-General (endnote 6). It is decided, behind closed doors, by the holder for the time being of the political office of Home Secretary or, in most cases, his subordinate ministers, with no right for the offender to appeal against the decision and no right for the Attorney-General to make application.

For the past 15 years successive Home Secretaries have chosen, quite voluntarily, to invite the trial judge and the Lord Chief Justice to offer advice on the term, the punitive, or "tariff", term as it is colloquially if unfortunately called (endnote 7); but the Home Secretary is free to reject this advice in favour of a longer or shorter term, and unless he does so he need give no reasons for his unappealable decision. Thus the real punishment to be undergone by the murderer subject to a mandatory life sentence is decided not by a judge sitting in open court and subject to all the constraints which bind anyone performing that function, but by a member of the government subject only to such constraints as the courts have, by a series of recent decisions (endnote 8), imposed upon him. It is not easy to imagine a more complete contrast with the practice which obtains in sentencing all other classes of offenders.

Although convicted murderers are the only mandatory life sentence prisoners, the only offenders on whom the judge is required by law to impose a sentence of life imprisonment, they are not the only prisoners sentenced to imprisonment for life. There are others, a minority but a significant minority of the lifer population, who have committed crimes carrying a maximum of life imprisonment in whose cases the trial judge, in the exercise of his discretion or judgment, has imposed a sentence of life imprisonment although not obliged by law to do so. Case law prescribes the conditions in which such a sentence may be imposed (endnote 9), and if the sentencing judge finds those conditions satisfied he may impose a life sentence if he concludes that the interests of justice require him to do so. If he does, the sentencing regime is quite different from that which I have just described.

The sentencing judge, in almost all cases, specifies in open court the "relevant part" (endnote 10) - that is, the minimum term to be served in prison before the offender has any prospect of release save on compassionate grounds - and his reasoned decision, given in open court, will be challengeable on grounds of excessive severity or undue leniency. But when that specified term has been served, the offender will not be automatically released. Underlying the decision to impose a discretionary life sentence of this kind will always be an apprehension that the offender may be a continuing danger to the public for an indefinite term. So, when the determinate term has been served an expert independent body, the Parole Board, will judge whether it is safe to release the offender, and depending on its judgment the offender will, or will not for the time being, be released. At no stage of the process has any minister or other representative of the executive any influence on the period for which the offender is detained. This regime applies to all discretionary life sentence prisoners, whether adult or under age; and it is also, now, accepted as applying to under-age murderers subject to mandatory life sentences (endnote 11). So it is only adult murderers who are subject to special and extra-ordinary treatment.

Many of us, in a rather instinctive way, tend to think of murder as something different, a crime apart. Our religious heritage reminds us of the sixth commandment and the mark of Cain. Our cultural heritage includes many works in which murder was the central event: one need only instance plays such as "Hamlet", "Macbeth", "Othello" and "Julius Caesar" (three political assassinations and one crime passionnel); or novels such as "Crime and Punishment". On a more popular level we witness an unending flow of books, plays and films based on the commission and detection of murder. Scarcely a day passes (or so it seems) without reports in the media of some new and horrifying killing. The names of some murderers are burned on our minds, and their crimes are part of our national experience.

So it is not altogether surprising that we think of murder as different. Despite the final abolition of the death penalty in this country, and despite their familiarity, the expressions "murder" and "murderer" have a chilling connotation all of their own.

Reactions of this kind, even if easily explained, do not however relieve us of the need to enquire, in an objective and rational way, whether there are good reasons to depart, in the case of adult murderers, from principles which govern the sentencing of all other offenders. Ministers and officials play no part in deciding the sentences to be served by those convicted of torturing and abusing children, or conspiring to commit terrorist offences which may lead to multiple deaths, or importing hard drugs which may blight countless lives, all of them crimes of the utmost seriousness; it has never to my knowledge been suggested that they should; and it would be contrary to constitutional principle if they did.

So I pose the question: Why should adult murderers, alone, be treated differently? I shall try to state fairly what I understand to be the main reasons advanced by those who support the existing practice. It will, I suggest, become clear that these reasons will not withstand searching scrutiny.

The first, and much the most prominent, argument advanced by supporters of the existing practice is that murder, the deliberate taking by one person of the life of another, is a crime of so uniquely heinous a character that it can only adequately be punished, irrespective of any other fact or circumstance, in all cases, by the most severe punishment permitted by law, now life imprisonment. No other penalty, it is said, would mark the revulsion with which society regards the crime of murder (endnote 12). The answer to this point is that it is at best a quarter-truth, both factually and legally.

It is of course true that some murders plumb the depths of imaginable human, or more properly sub-human, depravity and involve a degree of sadistic or callous violence which is almost impossible to describe. A number of such cases are well known to us all, and to the public at large; and we could all add additional examples from our own professional experience. Murders of this character are, however, a very small fraction of the murders committed year by year, most of which occur in a domestic or emotional context, the product of sudden anger, often fuelled by drink, or obsession rather than planning or the hope of gain. It must always be a serious thing and attract a criminal penalty deliberately to take another human life but there are many murders which cannot fairly be regarded as uniquely heinous and which, if they arouse public revulsion, must also arouse the sympathy of any reasonably imaginative observer.

Let me give six examples, and lest it be thought that I am inventing unrealistic examples to support my argument I take them from the "Report of the Royal Commission on Capital Punishment 1949 - 1953" (endnote 13).

Case 1. A man struck his brother in the groin with a knife after an altercation about payment for drinks. They had been drinking but were not drunk, and had previously been close friends. The offender made frantic efforts to obtain help for the victim, who nonetheless died.

Case 2. A man killed his fiancée because she persisted in going out with another man on the two evenings each week when she did not go out with him. He was a man of good character and was said to be of even temper and quiet disposition.

Case 3. A man killed his sweetheart who was pregnant by him but whom he had not enough money to marry. He was worried on this account and also because he thought he had infected her with syphilis. He said that he had contemplated suicide; that on the night of the crime he had told her that they could not marry but could not bring himself to tell her the reason; and that when she began to cry he lost all control of himself. He could not explain the crime.

Case 4. A woman gassed her son, aged 30, a hopeless imbecile, who had to be attended to like a baby. She had been told that she must enter a hospital immediately to undergo an operation. She at first said that she could not have the operation because there was no one to look after her son, but it was made clear to her that she could not live for more than six months unless the operation was performed.

Case 5. A Chinese pursued for four years the man who had killed his father in Hong Kong, and finally confronted him in a Chinese hostel in England and killed him after a desperate struggle. The offender said that he had committed the crime from motives of filial piety. By Chinese doctrine a son was bound to avenge his father's death.

Case 6. A man killed his wife with an axe. She was an epileptic who also suffered from disseminated sclerosis, and in the last few months her mental state had degenerated into insanity. In a statement to the police he said he had killed her to end her suffering and had then tried to commit suicide but could not bring himself to do so. The crime was evidently due to mental strain.

These cases were drawn from England and Wales and Scotland, and the crimes were committed many years ago. But criminal conduct does not change, and any of these examples could be matched by recent cases. The observation of the Royal Commission remains as true now as it was when made:

A similar conclusion was strongly expressed in 1993 by an independent committee under the chairmanship of Lord Lane, the former Lord Chief Justice whose experience in these matters is unrivalled in our generation:

In R v Howe Lord Hailsham of St Marylebone said:

If any doubt remains about the unjustifiability of lumping all murders together and treating them all as uniquely heinous, it is surely provided by the relatively recent and very well-known case of Private Lee Clegg. On the facts originally held to be proved at his trial he was guilty of murder. He was said to have responded to a threat with an excessive display of violence and he could not escape liability on grounds of self-defence. The result was a life unlawfully taken, and doubtless the victim's family felt as all families feel in such circumstances. I do not suggest that (on the facts then found) no crime was committed or that punishment should not have followed. But he was on any showing a young man of good character, attempting to do his duty in a predicament not of his own making, most unlikely to re-offend. It is a travesty to treat his case or even to appear to treat it as if it were in the same league of criminality as that of a contract killer, or an armed robber who deliberately shoots a police officer or a security guard, or a person who tortures, abuses and kills children for sadistic or sexual satisfaction.

The contention that any murder, whatever the circumstances, should be regarded as uniquely heinous is also untenable legally. If asked for their understanding of murder, most reasonably well-informed members of the public would, I think, define it as the deliberate taking of a human life, that is, the taking of a human life with the deliberate intention of doing so. The more sophisticated might add "without lawful excuse", but that addition is irrelevant for present purposes. As lawyers and police officers, however, know, this common understanding is defective.

The common law definition of murder covers a case where there is no intention to kill, or even an intention not to kill, provided there is an intention to cause serious bodily injury and death results. The first of my earlier examples illustrates the point. The man who stabbed his brother in the groin plainly intended to cause serious injury; but the summary makes plain that the offender did not wish or intend his brother to die. It was still murder. In practice it is commonplace for the prosecution, in opening a charge of murder, to disclaim expressly any accusation that the defendant intended to kill the deceased. Most cases of murder involve no intention to kill. The absence of an intention to kill does not of course exonerate the offender, since it is serious criminal conduct to intend to injure another, and if one wishes to eliminate any risk that death may result the simple solution is not to cause the injury. But if the absence of an intention to kill does not exonerate, it cannot rationally be held not to mitigate the offence as compared with one where the offender has an intention to kill. It makes no sense to equate the two, by requiring the same sentence to be passed in each case.

It makes even less sense when account is taken of the sister offence of attempted murder. To be guilty of this offence an offender must be shown to have moved beyond the merely exploratory phase, and to have embarked on his endeavour to kill; and, even more significantly, he must be shown to have had the specific intention to kill the victim. An intention to cause serious bodily injury would make him guilty of attempting to cause such injury, or of causing it if the attempt progressed that far. But he would not be guilty of attempted murder in the absence of a proved intention to kill. Yet for attempted murder the maximum sentence of life imprisonment is discretionary, not mandatory. The fact that an offender's conduct has caused a death adds a dimension of seriousness to a case, even if the death is unintended. But in assessing the measure of punishment it is normal and fair to weigh the criminality of an offender's intention, and it is anomalous that a death which is unintended should carry a mandatory sentence of life imprisonment when a result which is intended but not achieved, very probably through no fault of the offender, should leave the judge with the discretion to impose whatever sentence he judges appropriate.

In a House of Lords debate in April 1991 Lord Richard QC, now the Labour Leader of the House of Lords, put the point very clearly and simply:

In an earlier debate Lord Irvine of Lairg QC, now the Lord Chancellor, made the same point with equal force:

I agree.

A second argument advanced in support of the mandatory life sentence for murder is that to replace the mandatory life sentence with a discretionary maximum sentence of life would erode the distinction between murder and manslaughter, for which life is the discretionary maximum. This is both right and wrong. Legally it is wrong: altering the penalty would not alter the ingredients of the two offences, which would remain distinct as now. But it is right in the sense that, if a judge had discretion in both cases, not all offenders convicted of murder would be sentenced more severely than some offenders convicted of manslaughter. But this is not a possibility to be resisted. Every experienced judge has known cases in which a jury have acquitted a defendant of murder and convicted him of manslaughter in circumstances where the verdict can only be understood as an expression of sympathy; and has also known cases, such as those already summarised, in which the factors mitigating the crime of murder were very strong. It would make life very simple and easy if it were possible to assert, truly, that every murder was more serious than every manslaughter; unhappily perhaps, the untidy complexity of real life leaves no room for such simplistic notions.

Then it is said that a mandatory sentence of life imprisonment is the only appropriate retributive sentence, meaning the only appropriate punishment, for murder. This has some overtones of the Old Testament doctrine of an eye for an eye, a tooth for a tooth, which may no doubt be a good working rule in a primitive society. But ours is not a primitive society, and the argument could only be sound if all murderers were of roughly equal culpability, which (as already shown) they are not. In any event, the argument could only carry weight if the punishment imposed on all murderers were in practice the same, which it is not. It is hard to see what retributive purpose is served by passing in open court a formulaic sentence which, in the overwhelming majority of cases, bears no relationship to the punishment which the offender will actually undergo.

A more serious argument is that the mandatory life sentence for murder is necessary to protect the public against the risk that an offender who has killed once may, if released, kill again. It is axiomatic that the public should, so far as reasonably practicable, be protected against the risk of unlawful violence, and if the imposition of a mandatory life sentence on convicted murders were the only way of affording such protection I should regard it as a necessary safeguard. But the argument is not persuasive, for three reasons.

First, a mandatory life sentence affords no protection which is not afforded by a discretionary life sentence. As already noted, the primary reason for imposing a discretionary life sentence is apprehension of continuing danger to the public. In the course of dealing with such cases the courts, assisted by medical and other evidence, have acquired considerable expertise in deciding when, in the interests of the public, a life sentence should be imposed. There is no reason to doubt that such a sentence would be imposed in the case of any murderer who was judged to present a continuing threat to the public. Secondly, many - probably most - murders are so much the product of the specific circumstances giving rise to them, being circumstances which never can, or are most unlikely to, recur that the risk of repetition can be effectively discounted. An offender cannot kill an imbecile child, an insane wife, or a long-married brutal husband a second time. No one could reasonably fear that Private Clegg would again kill unlawfully even if he were again shown to have killed unlawfully once. Thirdly, it is of course the fact that almost all murderers, although subject to mandatory life sentences, are released after a period of years, provided it is judged safe to release them. There can be no objection to open acknowledgement of this likelihood at the outset, as in the case of almost all discretionary life prisoners.

It has been argued that public confidence in the criminal justice system would be undermined if the penalty for murder became discretionary. Public confidence is plainly a very important aspect of this matter, not something to be taken lightly or taken for granted. But public opinion is the sum of individual opinions, and individual opinions depend on how much individuals know and understand. In this area the level of public knowledge and understanding is very low, for several reasons: the procedures for dealing with mandatory life sentence prisoners have been the subject of constant change over the last 15 years; the procedures are of some complexity; little effort has been made to inform the public exactly how the procedures do work; and the sentence passed by the court is of necessity couched in terms which are, in almost every case, false and do nothing to inform the offender, the relatives of the victim, the media or the public what in practical terms the sentence means.

The first essential pre-condition of public confidence is, surely, that the sentence pronounced by the court should be intelligible, transparent and certain. Those who carry the banner of truth and honesty in sentencing could scarcely challenge that assertion. And the reason is obvious: if, as now, sentence is passed in terms which leave everyone uncertain of all things except one, that the sentence almost certainly does not mean what it says, then rumours may spread and misapprehensions arise as to when the offender may once again be at liberty. A clear statement of what the sentence means by the sentencing court will leave no room for misunderstanding. It is significant that in evidence given to the House of Commons Select Committee in 1994 two bodies representing victims and the bereaved, Victim Support and Support after Murder and Manslaughter, made plain that to those whom they represented the mandatory life sentence was very much less important than certainty as to how long the offender would actually serve in prison before there was any question of release (endnote 19).

Provided that the sentence is clearly and explicitly stated, it seems safe to assume that the second essential pre-condition of public confidence is a broad measure of public acceptance that convicted murderers (in particular those who have committed the most heinous crimes) will serve terms of imprisonment commensurate with their criminality and that dangerous killers will not be let loose to kill again. These are legitimate demands which any acceptable sentencing regime must meet. The public are entitled to expect the most serious murderers to remain in prison for very long terms indeed, perhaps even for the rest of their lives. They are entitled to expect the utmost care to be taken to ensure that those who have killed once will not be freed so long as there is a risk that they may kill again. But the public do not lack a sense of fairness or the power to discriminate: they would not wish Private Clegg (even if guilty as charged) to undergo the same punishment as Fred West; and would much prefer the effect of the sentence passed on each to be spelled out expressly.

If the sentence on a convicted murderer were not a mandatory sentence of life imprisonment but a discretionary maximum of life imprisonment, what I have described as the essential pre-conditions of public confidence would be fully met. The sentencing court would either sentence the offender to a determinate term of years, indicating when the offender would become eligible for and entitled to release on parole; or it would impose a life sentence indicating the number of years (real years, not subject to remission) to be served before consideration of release, which would then be subject to a favourable assessment of risk by the Parole Board; or exceptionally it might impose a life sentence, ruling that for purposes of punishment alone the offender should never be released. In each case the sentence would be intelligible, transparent and certain. There would no doubt be cases in which the public would regard sentences passed as, in all the circumstances, excessively severe or unduly lenient, but the usual means of challenge would be open, by the offender in the first case, by the Attorney General as guardian of the public interest in the other. I can for my part see no acceptable reason why any responsible member of the public should have less confidence in this sentencing regime than in that which operates at present.

Speaking in 1989, with his customary lucidity, Lord Irvine of Lairg QC made this point very clearly:

A further argument in favour of the mandatory sentence is that its abolition would present peculiarly difficult sentencing problems for the sentencing judge. It is certainly true that the sentencing of offenders, particularly serious offenders, is an anxious task calling for very considerable skill, insight and judgment. But this is a skill which judges acquire over a professional lifetime and they are after all selected for their qualities of judgment. To decide the right sentence for a murderer is not a task different in kind from deciding the right sentence for a drug baron, a serial rapist, a child abuser, a blackmailer, a kidnapper, a terrorist or an armed robber. Judges are already familiar with discretionary life sentences. And one must, with all appropriate respect for their integrity and professionalism, question whether ministers who serve for a time in the Home Office or the officials who for a time advise them can reasonably be expected to bring any greater skill or judgment to the task. As Lord Lane bluntly put it in the House of Lords:

Perhaps I should explain how judges would set about their task. They would, as they now do when making recommendations, work on a benchmark figure judged to represent the proper term to be served in prison for the unexceptional murder, that is, a murder with no significant aggravating or mitigating features. That benchmark figure would probably be about 14 years, but it might be a bit more or a bit less and it might over time change in the light of experience. It would be increased to take account of aggravating features such as (and I do not attempt to be comprehensive): evidence of a planned, professional, revenge or contract killing; the killing of a child or a very old or otherwise vulnerable victim; evidence of sadism, gratuitous violence or sexual maltreatment, humiliation or degradation before the killing; killing for gain, in the course of burglary, robbery, blackmail or insurance fraud; multiple killings; the killing of a witness or potential witness to defeat the ends of justice; the killing of those doing their public duty, such as police or prison officers; terrorist or politically motivated killings; the use of firearms or other dangerous weapons; a substantial record of gratuitous violence; macabre attempts to dismember or conceal the body. Serious aggravating features of this kind could, depending on the facts, extend the punitive term very greatly.

But it would fall to be reduced somewhat if there were mitigating features. Again I do not attempt to be comprehensive. But mitigating features might include such matters as youth; age (where relevant to physical capacity or the likelihood of an offender dying in prison); subnormality or mental abnormality, although not affording a defence of diminished responsibility; provocation (in a non-technical sense), or excessive response to a personal threat; the absence of an intention to kill; spontaneity and lack of premeditation (beyond that necessary to constitute the offence: e.g., a sudden response to family pressure or emotional or other stress); mercy killing; a plea of guilty, if affording hard evidence of remorse or contrition. Features of this kind would shorten the punitive term to be served; but save in very exceptional cases it would remain substantial.

It is then argued that the mandatory life sentence is, or may be, a valuable deterrent. Deterrence, both personal and general, is a recognised objective of punishment and it plainly serves a valuable social objective to impose a sentence which will strongly discourage potential murderers from killing. The deterrent effect of the death penalty was very carefully considered when the abolition and restriction of that penalty were under review, and the Royal Commission of 1949-1953, while acknowledging that there might be some deterrent effect, nevertheless pointed out that there were many offenders on whom such effect was limited and concluded that the effect might often be negligible (endnote 2). More recent research reinforces that conclusion (endnote 23). When a potential crime is the product of careful planning and detailed calculation it is reasonable to suppose that, next to certainty of apprehension, the certainty of a very long prison sentence may swing the potential criminal's decision against the commission of the crime and against creating the conditions (such as the carrying of loaded firearms) which may lead to its commission.

But many murders, as already emphasised, are not the result of careful planning and detailed calculation. They are the product of sudden anger, drunken fury, obsession, desperation, miscalculation. In such cases the immediate deterrent effect of any penalty must be very small, if it exists at all. It is furthermore important to remember that, in the most serious cases of planned and calculated killing, abolition of the mandatory penalty need not lead, and would in my view be most unlikely to lead, to shorter terms of incarceration. But the length of those terms would be publicly stated; and in that way the deterrent effect of the sentences would in all probability become greater.

In reviewing the arguments for retaining the mandatory life sentence for murder I have so far relied on the summary to be found in the report of the House of Lords Select Committee in 1989 (endnote 24). But I should refer to further arguments advanced by the Lord Privy Seal (Lord Waddington QC) on 18 April 1991, when the House of Lords debated an amendment to abolish the mandatory life sentence for murder as recommended by the Select Committee. He argued that the change would weaken public confidence in the judiciary (endnote 25). His reason for this, as I infer, was that the public would regard sentences imposed by the judges as too short. He then went on to argue, apparently as an additional argument against the change, that it would lead to the imposition of longer sentences on people guilty of less serious murders (endnote 26).

If that were to be the result of the change, one would suppose that public confidence in the judiciary would not in his view be weakened. And since, during a sample 6-month period in 1988, Home Office ministers fixed a punitive term longer than the trial judge had recommended in 63 out of a total of 106 murder cases (endnote 27), one would imagine that the Lord Privy Seal would have welcomed a change that would have led to an increase in terms of imprisonment. Later in his speech, however, the Lord Privy Seal rejected as "entirely wrong" the Select Committee's prediction that the introduction of a discretionary sentence for murder would lead to a considerable increase in the average length of sentence (endnote 28). The Lord Privy Seal then went on to argue that an offender sentenced to life imprisonment sacrificed his life to the state. When the Criminal Justice Bill of 1991 was debated in the House of Commons the Minister of State at the Home Office expressed a similar view (endnote 29). As Lord Mustill pointed out in Ex parte Doody (endnote 30), however, that view of the mandatory life sentence was wholly inconsistent with the regime in fact operated by successive Home Secretaries since 1983.

The Lord Privy Seal also argued that the mandatory life sentence represented an assurance given by Parliament to those nervous about abolishing the capital penalty. No doubt, as already pointed out, the public wanted to be sure then, and wants to be sure now, that the most serious murderers will be confined for a very long time and not released until, if ever, it is safe to release them. This cannot, however, be a reason for clinging to a sentencing formula which, as pointed out in the House of Lords debate, is known by everyone to be untrue and, which was described as "a pretence" and "bogus" (endnote 31).

Later in his speech the Lord Privy Seal, commenting on the difficulty which would face a trial judge in deciding how long an offender should stay in prison for purposes of punishment, said:

This is, I suggest, a deeply worrying argument. For every crime, however serious, there must (risk apart) be an appropriate punishment, even if different people hold different views of what that punishment is. In deciding what punishment is appropriate, all factors (including the impact of the crime on the mind of the public) should be considered. But the sentence, once imposed, should be final and certain, subject to appeal by the offender, or application by the Attorney-General in the public interest, or retrospective alteration to the very limited extent permitted by statute (endnote 33). What is decided to be appropriate punishment for the crime at the time of sentence cannot become inappropriate because, when that punishment has been undergone, public opinion is hostile to the release of the offender.

To accord that role to public opinion - I am tempted to call this the Barabbas argument - is to forget that the reason why civilised democratic societies establish courts of law and appellate procedures is to prevent the fate of individuals, however unpopular they are, being decided by the unreasoned and unstable force of public clamour. Having heard the Lord Privy Seal's arguments, their Lordships accepted the amendment which he was opposing by 177 votes to 79. The majority included the Lord Chief Justice, the Master of the Rolls, two former Lord Chancellors and one future Lord Chancellor, a former Prime Minister, the former Lord Chief Justice of Northern Ireland, a future leader of the Lords, six Law Lords and two former chairmen of the Parole Board (endnote 34).

In the 1995-96 session of Parliament, the Home Affairs Committee of the House of Commons considered the mandatory life penalty for murder and produced two reports (endnote 35). It recommended that the mandatory life sentence of life imprisonment for murder should be retained, but that the responsibility for setting the tariff and for taking decisions on release should be removed from the Home Secretary. While the Committee's reports are of interest and value, I do not think that in reaching the first of these conclusions the Committee relied on arguments to which I have not already made reference. In its first report the Committee found the arguments on the issues to be "exceptionally finely balanced", and it resolved to take further evidence before coming to a final conclusion (endnote 36).

I have, I hope, touched on all the main arguments in favour of retaining the mandatory sentence for murder. In the course of giving my reasons for rejecting those arguments I have made plain why, in my opinion, a discretionary maximum of life imprisonment should be substituted. I will not repeat those reasons. But perhaps in closing I may emphasise just one of them. As every reasonably informed person knows, our constitutional arrangements reflect no slavish adherence to the doctrine of the separation of powers. But there are some clear and generally respected lines of functional demarcation. One of them is between the formulation of penal policy (including the stipulation of maximum and on rare occasions minimum sentences), which are matters for the executive and Parliament, and the sentencing of criminal defendants, which is a matter for the judiciary.

For historical reasons which are easy to understand and reflect no discredit on anyone, this line has, in the sentencing of defendants for murder, become blurred. But the sentencing of criminals is not, despite the contrary suggestion of the then Lord Privy Seal in April 1991 (endnote 37), a political matter. It is a job for judges, not politicians or officials. At present, while the judge pronounces a formula which everyone knows to be false, and the Home Secretary voluntarily seeks the recommendations of the trial judge and the Lord Chief Justice, the Home Secretary is in no way bound by those recommendations and the final decision rests with him. If such a system had been operated in Stalin's Soviet Union, Hitler's Germany or Amin's Uganda, we should have been very quick to condemn it as a glaring violation of democratic principle. There is of course no comparison to be drawn between the outrageous abuses of power witnessed in those countries and practice here, but the constitutional point remains. In the House of Lords, Lord Nathan made the point succinctly:

The point was also made, clearly and cogently, by Lord Lane's committee in its conclusions:

This is an argument which has never been effectively answered, for a very simple and compelling reason: there is no effective answer which can be given. Yet resistance to change has so far proved insuperable. Perhaps it will remain so. But we live in a time of change. Old certainties are being questioned, old orthodoxies challenged. The views which I have put forward are not new and not original. But they have the overwhelming support of the Queen's Bench judges, those who sentence murderers up and down the land, week in, week out, and of many experienced and distinguished people whose views I have quoted. I very much hope that a new, open-minded administration will be willing to re-examine the merits of this important question.

Endnotes

• 1 Radzinowicz, A History of English Criminal Law, vol. I,259
• 21 HL Hansard, 18 April 1991, col.1562.
• 2 Saleilles, op. cit.
• 22 Report, p.24, para.68
• 3 Criminal Justice Act 1991, s.2(2)(a).
• 23 Hood, The Death Penalty, 2nd Edn. (1996), 210-212.
• 4 Murder (Abolition of Death Penalty) Act 1965 s.1(1).
• 24 Report, p.33, paras 108A-114B.
• 5 Criminal Appeal Act 1968, s.9
• 25 HL Hansard, 18 April 1991, col.1578.
• 6 Criminal Justice Act 1988, s.36
• 26 Ibid.
• 7 I agree with Lord Windlesham's description of this as a "crude and ugly word": "Life Sentences: The Paradox of Indeterminacy". [1989] Crim.L.R. 244 at 251.
• 27 Lord Windlesham, "Life Sentences: The Paradox of Indeterminacy", [1989] Crim.L.R.244 at 253.
• 8 R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531; R v Secretary of State for the Home Department ex parte Venables and Thompson [1997] 3 WLR 23; R v Secretary of State for the Home Department ex parte Pierson [1997] 3 WLR 492.
• 28 HL Hansard, 18 April 1991, col.1583.
• 9 See notably R v Hodgson 52 Cr.App.R 113, but also Attorney-General's Reference (No.32 of 1996) (R v Whittaker) [1997] 1 Cr.App.R(S) 261.
• 29 HC Hansard, 16 July 1991, cols.309-310.
• 10 Crime (Sentences) Act 1997, s.28(5)
• 30 R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 at 557.
• 11 Following Hussain v UK [1996] 22 EHRR 1; Crime (Sentences) Act 1997, s.28(1)(b)
• 31 HL Hansard, 18 April 1991, cols.1563, 1567, 1568, 1578.
• 12 See Report of the House of Lords Select Committee on Murder and Life Imprisonment, HL paper 78-1, 1989, p.33, para 108A.
• 32 Ibid., col. 1581.
• 13 Cmnd 8932, App.4, p.320
• 33 Supreme Court Act 1981, S.47(2)-(7).
• 14 Report, p.6, para.21.
• 34 HL Hansard, 18 April 1991, cols.1584-1586.
• 15 Report of the Committee on the Penalty for Homicide, commissioned by the Prison Reform Trust, 1993, p.20
• 35 First Report of the Home Affairs Committee, HC 111; and Supplementary Report, HC 412.
• 16 [1987] AC 417 at 433.
• 36 Para.101.
• 17 HL Hansard, 18 April 1991, col.1566
• 37 HL Hansard, 18 April 1991, col.1577.
• 18 HL Hansard, 6 November 1989, Col.521.
• 38 Ibid., col.1560
• 19 Written Response, Victim Support, December 1994; Written Response, Support after Murder and Manslaughter, 18 November 1994.
• 39 Report, p.5.
• 20 HL Hansard, 6 November 1989, Col.521.

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