Reading the recent stories about plans to introduce US-style murder charges to the UK, it seems very few people understand how our system works.
It began with Keir Starmer, the Director of Public Prosecutions, joining calls for the offence to be split into first and second degree murder – first degree for intentional killing and second degree with a lesser intent of causing ‘really serious harm.’
According to the Daily Telegraph, Independent and Guardian the present system is too rigid, covered by ‘a blanket of moral uniformity’, and ‘permeated by anomaly, fiction, misnomer and obsolete reasoning.’
The main criticism seems to be that everyone convicted of murder is given a life sentence and as a result ‘mercy killers’ and youths involved in ‘joint enterprise’ gang violence are put in the same bracket as hardened serial killers and gun-toting gangsters.
Under a US-style system those guilty of second degree murder could be given a non-life sentence. The alternative, as suggested by Paul Mendelle, the former chair of the criminal bar association, is an upgraded manslaughter offence.
Naturally some suspect that this is a liberal plot to reduce prison sentences overall while others see the life sentence as a recent attempt to soothe the right-wing press.
Perhaps the way successive governments have fiddled with the law and sentencing guidelines has confused everybody.
Here are some facts:
- The mandatory life sentence for murder has been in place since 1965.
- A life sentence does not mean life in prison.
- Judges already have the power to distinguish between different kinds of murder in sentencing.
Before the 2003 Criminal Justice Act judges recommended how long the offender should serve before being considered for parole, although the Home Secretary could increase or decrease it. One released they would be subject to recall to prison for the rest of their life if they reoffended.
After 2003 judges were given the power to set a ‘minimum term’ that the offender must serve before being considered for parole. Just in case they were all incompetent, a vast array of guidelines were drawn up to make sure they towed the line.
The ‘starting point’ for minimum terms are as follows:
12 years – all offenders under 18
15 years – most offenders 18 and over except as below
25 years – involving the possession a knife with intent to commit any offence or the use of a knife to commit murder
30 years – murder for gain (usually financial), murder of two or more victims or more, murder of a police or prison officer in the course of duty, murder involving the use of a firearm or explosive, murder involving sexual or sadistic conduct, murder aggravated by racial, religious or sexual orientation.
Whole life – particularly serious offences, including murder of murder of child involving abduction, sexual or sadistic motivation, murder for political, religious or ideological cause, or murder carried out by an offender with a previous conviction for murder.
It doesn’t stop there. Judges can increase or decrease the starting point according to another list of factors – which include whether the intent was to kill or just inflict really serious harm.
Theoretically the judge can take account of anything he wants, but the 2003 Act provided a list of helpful hints.
Factors that aggravate the offence (and increase the minimum term):
- significant planning or premeditation
- victim particularly vulnerable due to age or disability
- mental or physical suffering inflicted on victim before death
- abuse of a position of trust
- duress or threats against another to facilitate commission of offence
- victim providing a public service or performing a public duty
- concealment, destruction or dismemberment of the body
Factors that mitigate the offence:
1) intention to cause serious bodily harm only
2) lack of premeditation
3) offender suffering from mental disorder or disability
4) provocation not amounting to a defence of provocation
5) offender acting to any extent in self-defence
6) belief by the offender that the murder was an act of mercy
7) offender’s age
Just a brief look through the cases on murdermap reveals that sentences vary wildly depending on the nature of the crime. The single thread running through them is that the offender can only be released when the parole board says so.
In effect, if the papers are to be believed, any US-style reform would be taking the decision on release of ‘second degree murder’ prisoners away from the parole board. Instead they would be released half way though their sentence.
This seems likely to confuse the public even further, judging by responses to The Daily Telegraph.
Take this response from Richard Edwards: ‘I don’t understand prison sentences at all. The other day a teacher got 21 years for sexually assaulting 12 children. A well known Libyan, convicted of killing 272 people at Lockerbie gets 26 years, and early release. Where’s the proportionality in that?’
The answer is that Richard Edwards doesn’t realise that he’s comparing two different types of sentence.
The teacher who got 21 years (a determinate non-life sentence) will be released after serving 10.5 years in prison. Lockerbie bomber Abdelbaset Al-Megrahi was sentenced to life imprisonment with a minimum of 27 years before being considered for parole. He was only released early after being diagnosed with cancer. Otherwise he would have spent 27 years behind bars before appealing to the parole board for release.
Given the state of confusion that exists at the moment, it seems likely that a ‘second degree murder’ charge will do little to clear it up. It might even make it worse.