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Whole Life Orders: Attorney General’s Reference (R. v McCann); Attorney General’s Reference (R. v Sinaga)

11 December 2020

What is a Whole Life Order?

When imposing a life sentence (which is mandatory on conviction for murder but discretionary for other certain serious offences, like manslaughter and rape) a judge has two options: they must either specify a minimum term which must be served in full before release can first be considered by the Parole Board or, alternatively, impose a Whole Life Order (WLO) which determines that the offender is never eligible to be considered for release. Although WLOs have become more common in the last two decades, they are still imposed rarely and on 30 September 2020 only 0.9% of prisoners in custody serving a life sentence (62 out of a total life sentence prison population of 6,945) were serving a WLO (Ministry of Justice (2020) Offender Management Statistics, Prison Population: 30 September 2020, Table 1.9a). All 62 people serving a WLO had been convicted of at least one murder.

In McCann; Sinaga the Court of Appeal had to decide whether or not the two cases before the court merited a WLO. Following today’s Court of Appeal decision, it remains the case that all whole life sentence prisoners in England and Wales have been convicted of murder.

Whole Life Orders for non-murder offences

Since the imposition of the first whole life sentence in England and Wales in 1988, no prisoner has ever served such a sentence for any offence other than murder. In 2012, a WLO was imposed on Michael Roberts at the Crown Court for a series of very serious sexual offences but this was subsequently reduced to a minimum term of 25 years by the Court of Appeal. In that judgment, the Court of Appeal stated that: ‘The Whole Life Order is reserved for the most exceptional cases. Without suggesting that the court is prohibited from making a whole life order unless the defendant is convicted of at least one murder, such an order will, inevitably be a very rare event indeed’ (R. v Oakes and Others [2012] EWCA Crim 2435 at [102]).

In McCann; Sinaga the Court of Appeal considered whether a WLO was appropriate in two recent cases involving exceptionally serious sexual offending. In December 2019, Joseph McCann was sentenced to life imprisonment with a minimum term of 30 years having been convicted of seven counts of rape, one count of the rape of a child under 13, three counts of sexual assault, one count of causing a child under 13 to engage in sexual activity, seven counts of kidnap, 10 counts of false imprisonment, one count of attempted kidnap, and two counts of committing an offence with the intention of committing a sexual offence against a total of 11 victims. In January 2020, Reynhard Sinaga was also sentenced to life imprisonment with a minimum term of 30 years having been convicted of 136 counts of rape, eight counts of attempted rape, 14 counts of sexual assault, and one count of assault by penetration against a total of 48 victims. It is believed that these were the longest sentences ever imposed in England and Wales for sexual offences. These sentences have now been increased to minimum terms of 40 years.

What are the implications of this judgment?

This is a significant decision by the Court of Appeal as, by declining to impose WLOs in these exceptionally serious cases, the availability of a WLO for an offence other than murder remains purely theoretical. However, the Court of Appeal did, for the first time, specifically articulate examples of possible non-murder offences that might merit WLOs – serious acts of terrorism that do not result in a death.

Are there any other restrictions on the imposition of Whole Life Orders?

It is considered that, as a matter of law, a judge cannot impose a WLO on anyone who was under the age of 18 at the time of the offence, irrespective of the seriousness of that offence. At present, this prohibition also extends to people aged 18 to 20 at the time of the offence. However, following the sentencing in August 2020 of Hashem Abedi (who was sentenced to life imprisonment with a minimum term of 55 years following his conviction on 22 counts of murder for his involvement in the Manchester Arena bombing in 2017 when he was aged 20) the Government has proposed in its recent White Paper to make WLOs available to sentencing judges for offenders aged 18 to 20 at the time of the offence in ‘extremely exceptional’ cases (Ministry of Justice (2020), A Smarter Approach to Sentencing, p. 31).

Can a prisoner serving a Whole Life Order ever be released from prison?

The legal status of a WLO in England and Wales has been the subject of much scrutiny in recent years. There is, at least in theory, a release mechanism open to prisoners serving a WLO as the Secretary of State for Justice has the power, under section 30 of the Crime (Sentences) Act 1997, to release any life sentence prisoner on compassionate grounds in ‘exceptional circumstances’. Although this power has never been exercised in relation to a prisoner serving a WLO, its existence eventually convinced the European Court of Human Rights in 2017 (Hutchinson v the United Kingdom [2017] ECHR 57592/08) that WLOs were in fact ‘reducible’ (as there was the possibility of release) and therefore compliant with Article 3 of the European Convention on Human Rights (the right not to be subjected to inhuman or degrading treatment or punishment).

The full judgment is available here: McCann, Sinaga & Shah judgment

Victim Personal Statements and Sentencing: A review of policy, operation and research

23 November 2020

The Sentencing Academy has published a review of the operation of Victim Personal Statements in England and Wales by Elspeth Windsor and Julian V. Roberts.

Read the full report here:

Executive Summary:

• The role of the victim at sentencing is one of the most active areas of policy and research in the field of sentencing. Victims now provide input into many stages of the criminal process, beginning with bail decision-making and ending with parole. This input usually takes the form of an impact statement which is then considered by courts and parole authorities. This paper explores victim input at the stage of sentencing in England and Wales.

• The Victim Personal Statement (VPS) scheme has been operating for almost 20 years, without any official review of its operation. The primary purpose of the VPS is to allow the victim to document the impact of the crime, and not to provide a recommendation for sentencing. This report reviews recent research and data trends with respect to the use of VPSs at sentencing.

• All crime victims in England and Wales are entitled to make a VPS to be considered by the court at sentencing. Submitting a VPS is optional and the guidance is clear that a victim’s decision not to submit a VPS should not result in any adverse inferences at sentencing. The right is specified in the Code of Practice for Victims of Crime (Victims’ Code) which states that victims of crime are entitled to be offered the opportunity to make a VPS.

• Until it was discontinued in 2010, the primary source of information about victims was the Witness and Victim Experience Survey (WAVES). Today, the Crime Survey of England and Wales (CSEW) is currently the principal source of information about victims’ experiences and responses.

• All respondents to the CSEW who reported a crime to the police are asked whether the police gave them an opportunity to submit a VPS. Across the most recent administrations of the Crime Survey of England and Wales only 13% recalled receiving an offer. The percentage of respondents recalling a VPS offer has changed little over the past six administrations of the CSEW. It is unclear whether victims were offered a VPS, but then failed to recall the offer or whether they never received an offer.

• There was little regional variation in the recall of offer rates: the lowest recall of offer rate was 11% (in Yorkshire and Humberside) and the highest in the Southwest (17%).

• Of the victims who recalled being offered the opportunity to submit a statement, approximately half the victims (53%) stated they had submitted a VPS.

• CSEW respondents are asked the following question: ‘Do you feel that what you said in your Victim Personal Statement was taken into account by the Criminal Justice System?’. The latest administration (2018-19) found the following distribution of responses: ‘Yes, completely’: 35.3%; ‘Yes, to some extent’: 30.4%; ‘No, not really’: 13.0%; ‘No, not at all’: 21.0%.

• Since the CSEW does not probe respondents’ reasons for submitting or refraining from submitting a statement, it is unclear why only a small percentage of crime victims ultimately submitted a VPS for the purposes of sentencing.

• Research from other jurisdictions suggests that the use of VPSs do not systematically increase sentence severity. In general, victims who submit an impact statement report being more satisfied with the sentencing process, and indicate that they would submit a statement in the future if they were victimised again. Research in England and Wales has yet to adequately address these questions.

• Current knowledge of the strengths and weaknesses of the regime is insufficient to determine whether the VPS has achieved its objectives. In light of its importance as a primary vehicle for victim input into sentencing, the VPS regime should be subject to a comprehensive evaluation, and the 20th anniversary is a good opportunity for this to take place. The report concludes by identifying a number of research priorities. These include further investigation of the low recall of offer rate, as well as exploration of the reasons why approximately half of all crime victims decline to participate in the VPS scheme.

A Smarter Approach to Sentencing? – The Sentencing White Paper

30 October 2020

On 21 October, the Sentencing Academy hosted an online event, in conjunction with the UCL Centre for Criminal Law, on the recent publication by the Government of the sentencing White Paper. The event was jointly chaired by Professor David Ormerod, QC (Hon) (UCL) and Dr Lyndon Harris (Sentencing Academy).

We are grateful to Professor Andrew Ashworth, QC (Hon) (University of Oxford), Kate Aubrey-Johnson (Garden Court Chambers), Umar Azmeh (BCL Solicitors LLP), Phil Bowen (Centre for Justice Innovation) and Professor Nicola Padfield, QC (Hon) (University of Cambridge) for speaking at the event.

A video of the event is available below.

New Community-Based Alternatives to Imprisonment

27 October 2020

Popular conceptions of imprisonment entail admission to prison for a continuous period. Some offenders are sentenced to immediate imprisonment – for example for six months. However, other jurisdictions have introduced forms of imprisonment which are served in the community. In Australia this is known as a Community Custody Order, while in Canada it is called a Conditional Sentence of Imprisonment. Offenders serving these sentences are required to comply with much stricter conditions than offenders serving community orders. For example, offenders serving these sentences are usually subject to a strict curfew and their movements are monitored by electronic monitoring. Finally, the consequences of breaching the conditions of the sentence are more severe: the offender is usually admitted to a prison.

These alternate sentences offer courts a sentencing option that is tougher than a community order, but which avoids the costs and adverse effects of a period of imprisonment. They are also much cheaper than a comparable period of imprisonment. In other countries these sanctions of ‘home confinement’ are used for offenders convicted of crimes serious enough to justify imprisonment but who also represent a lower risk of re-offending.

Two recent developments in England and Wales suggest that a similar sanction could become available to courts here.

First, as part of its recent White Paper on sentencing, the Government has proposed a House Detention Order (HDO). This is designed for offenders who have failed to respond positively to repeated community orders. The HDO would include a highly restrictive and lengthy curfew and the offender would be subject to GPS tagging and tracking – electronic monitoring. The Government intends that the new sanction would ‘provide a strong punitive response to crime in a way that current community sentences do not, while enabling offenders in training, education or employment to maintain those obligations’. However, at present, the Government is proposing that the HDO should be used only as an alternative to other non-custodial sentences. We believe that such a provision could have wider application and would urge the Government to consider expanding the remit of HDOs to include offenders who would otherwise have received a short custodial sentence.

For further information see: https://www.gov.uk/government/publications/a-smarter-approach-to-sentencing

The second development is a proposal from the Centre for Social Justice for a new order called the Intensive Control and Rehabilitation Order (ICRO). Like the Government’s proposal this one would also involve GPS electronic monitoring, transdermal alcohol tags, and extended curfew requirements. The Centre for Social Justice argue that the ICRO would enable offenders to serve their sentence without ever being separated from their families – saving thousands of children from the trauma of parental imprisonment. It would also allow for individuals to engage in work and education programmes in the community, where 92 per cent of community learning and skills providers have been rated as ‘good’ or ‘outstanding’. In contrast, most prisons inspected in 2018–19 were rated as ‘requires improvement’ or ‘inadequate’ in terms of the overall effectiveness of their education, skills, and work provision.

The Centre for Social Justice argue for much wider applicability of the ICRO than the Government currently envisages for the HDO with the ICRO being a potential alternative to custodial sentences of up to four years (although the court would need to find exceptional circumstances in order to impose one in cases where the custodial sentence would be three years or more).

For further information see: https://www.centreforsocialjustice.org.uk/library/sentencing-in-the-dock-the-case-for-a-new-sentence-in-the-criminal-courts-of-england-and-wales

Sentencing Academy’s response to the A Smarter Approach to Sentencing White Paper

30 September 2020

The Ministry of Justice published its sentencing White Paper, promising ‘A Smarter Approach to Sentencing’, on 16 September 2020. It contains a number of headline-grabbing amendments to the release arrangements for offenders convicted of certain violent or sexual offences premised on the grounds of better protecting the public and restoring public confidence in sentencing. We are doubtful that these proposals will achieve either objective and the White Paper fails to provide evidence to support either proposition. The immediate result of these amendments will be the most complicated system of release arrangements we have ever had in England and Wales.

However, the White Paper contains a number of other proposals that might offer the possibility of more effective sentencing through a more tailored approach to non-custodial sentences. Whilst we welcome these proposals we must await further detail before we can be confident that the Government is as committed to effective sentencing as it is to a more punitive approach to certain offenders.

We set out our preliminary response to the possible practical implications of many of the key sentencing proposals here: