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The Hardest Case of All: Myra Hindley, Life Sentences, and the Rule of Law
International Journal of the Sociology of Law (2000), 28, 273^289 doi:10.1006/ijsl.1999.0125, available online at http://www.idealibrary.com on
The Hardest Case of All: Myra Hindley, Life Sentences, and the Rule of Law J. M. SCHONE Centre for Comparative Criminology and Criminal Justice, University of Wales, Bangor, U.K.
Introduction Myra Hindley is still in prison 33 years after her conviction for two murders perpetrated with her lover, lan Brady. These crimes, known as the ‘Moors Murders’ are deeply embedded in the collective consciousness of our society and it is no exaggeration to say that Hindley is popularly considered to be the embodiment of evil. Over the last 5 years she has mounted legal challenges to the Home Secretary’s right to determine the length of her detention. In this paper we argue that this single ‘hard case’ has had an irrevocable e¡ect on penal policy in the United Kingdom. Our thesis is that as Hindley has mounted these challenges the position of the Home Secretary has hardened, in the main because of the political impact of any executive action that could lead to her release. Because Hindley is a mandatory life prisoner (MLP) her case has had a profound impact on the law relating to such prisoners, and has prevented it from remaining in step with the law relating to discretionary life prisoners (DLP). Furthermore the position of the executive in this matter is now so ¢rmly entrenched it is highly unlikely that the legal position of the MLP will ever change. As Lord Go¡ pointed out in recent case dealing with another notorious murder, (R v. SSHD ex parte Venables [1997] 3 All ER 97) the public do not appreciate what a life sentence means [1]. We go further, however, and suggest that the legal position of the life prisoner is often misunderstood and frequently ignored by the academic community. For that reason we shall begin with an outline of the legal position today, before examining the historical background. We shall then examine the Hindley case in detail. 0194-6595/ 00/ 040273+17 $3500/ 0
# 2000 Academic Press
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The Current Structure There are currently four types of life sentence in English law. They all, however, have one feature in common. That is that once subject to a life sentence the prisoner is never free of it. He or she can be recalled to prison until the end of his or her life [2]. (1) Mandatory life This sentence is the only permissible in English law following a conviction for murder. After sentencing the trial judge makes a recommendation as to the period of years the prisoner should serve to satisfy the requirements of retribution and deterrence (the ‘tari¡ ’). The Lord Chief Justice, England’s senior criminal law judge, then adds his or her comments and recommendation, if di¡erent from the trial judge. The Home Secretary then makes the ¢nal decision on the tari¡ ¢gure. Before he does so he makes his initial view known to the prisoner, and discloses the paperwork on which he is basing his decision. The prisoner can then make representations prior to the ¢nal setting of the tari¡. When the prisoner has served his tari¡ release on licence is possible, but remains wholly within the discretion of the Home Secretary. In his decision-making role however the Minister is subject to standard administrative law requirements of fairness. (2) Discretionary life As the name implies this sentence is passed at the discretion of the trial judge, following conviction of an o¡ence for which life imprisonment is the maximum. At the sentencing the judge announces the tari¡, which is ¢xed at this point. Immediately at expiration of tari¡ the prisoner has an oral hearing to determine whether he is ¢t to be released, the only concern being the risk the prisoner presents to society. The executive branch of government is not involved, save that the Home Secretary is a party at this hearing, which has an adversarial format. (3) Automatic life This was introduced by the Crime (Sentences) Act 1997. It is mandatory, with certain exceptions, following conviction of a second serious violent or sexual o¡ence. It is, however, identical in all other respects to the discretionary life sentence. (4) Detention at Her Majesty’s Pleasure (HMP) This is the mandatory sentence passed on under-18s convicted of murder. Following the appeal to the House of Lords by the two boys convicted of the murder of James Bulger, R v. SSHD Ex Parte Venables (op cit) the law was in some state of confusion, with tari¡ being within the Home Secretary’s discretion, and release determined following a hearing before a panel similar to that for DLPs (Livingstone & Owen 1999: 415^418). However, in December 1999 the European Court of Human Rights gave judgment in the case of the Bulger killers (T v. United Kingdom; V v. United
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Kingdom; The Times: 17 December 1999). Following this the Home Secretary made an announcement in the House of Commons on 13th March that henceforth tari¡s for HMPs would be set by the sentencing judge, bringing this sentence totally in line with DLPs.
The Genealogy of the Life Sentence Prior to the 1950s the law in this area was relatively simple, particularly as regards murder, as there was just one sentenceödeath. Any commutation of this remained in the gift originally of the monarch and later of the Home Secretary (Blom-Cooper & Morris 1996). Life imprisonment had also been the maximum sentence for many crimes (cf. O¡ences Against the Person Act 1861), but it was not until the 1950s that the discretionary life sentence was developed as a penal technique. As Fitzgerald points out, it was then that the judiciary began to use this sentence for the preventative detention of ‘dangerous o¡enders’ who had been convicted of serious violent or sexual o¡ences carrying the life sentence (Fitzgerald 1995: 40). In 1965 the death penalty was ¢nally abolished and it was in the same period that the English courts began to lay down the principles that governed the imposing of a discretionary life sentence. These were generally that the o¡ence was very serious, the defendant was unstable and likely to reo¡end, and that the consequences of such reo¡ending would be especially injurious to the others (R v. Hodgson (1968) 52 Cr. App.R. 113). The abolition of the death penalty was not a smooth process. As BlomCooper and Morris point out, moreover, a myth surrounds the process. It is popularly believed, and according to them untrue, that the retaining of a mandatory life sentence for murder was part of a bargain struck when the Murder (Abolition of Death Penalty) 1965 Act was going through Parliament. Whatever the truth of this, it is beyond doubt that the di⁄cult position of MLPs is a direct consequence of that Act, as there was concern at the time that the Home Secretary, having the power to release MLPs, would be too lenient and release prisoners on licence too easily. This was why the Act speci¢ed that the incumbent Home Secretary must consult with the trial judge and the Lord Chief Justice in both setting the tari¡ and deciding on release (Coker & Martin 1985: 14^15). More protection against politically-determined leniency was provided by the Criminal Justice Act 1967, which established the Parole Board, a new body which had the task of examining the ¢tness for release of all life sentence prisoners. The power to release remained with the Home Secretary, but in future no release could take place without a prior recommendation of the Board. It appears overall that in the post-war period the focus of attention in penal policy making was the abolition of the death penalty. Less thought, however, was given to how the life sentence that replaced that penalty would be managed.
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Over the next 10 years there was little change in the position of life sentence prisoners, with the tari¡-setting exercise and decisions on release remaining wholly in the realm of executive discretion. Consequently little was known about either. In 1979 however, the case of Ex parte St Germain ([1979] QB 425), using the medium of judicial review, saw the beginning of challenges to this discretion, and the birth of prison law as a body of legal doctrine. During the 1970s, following from the case of Golder ([1975] 1 EHHR 524), prisoners had also begun to challenge the prison authorities in the European Court of Human Rights (Wilson 1993). This movement to have prisoners recognized as individuals with legally enforceable rights vis a' vis the state reached its apotheosis with the 1983 case of Raymond v. Honey ([1983] 1 A 1) in which Lord Wilberforce famously remarked that ‘‘[a] convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication. . .’’ (p. 10). It was also at this time that the Government began to address the issue of life tari¡s and release from prison. Following a rise in public concern at the levels of violent crime and speci¢c cases in which released prisoners had committed such crimes (Coker & Martin 1985: 29^30), the then Home Secretary, Leon Brittan, issued a policy statement on 30 November 1983 (49 HC O⁄cial Report (6th Series) written answers cols 505^507). The importance of this statement was that it was the ¢rst time the tari¡/post-tari¡ divide was o⁄cially recognized. Of crucial importance for our purposes was the criteria for decisions made around these two stages. The ¢rst was de¢ned wholly in terms of retribution and deterrence and the second wholly in terms of risk. Brittan’s (1983) policy statement had severe consequences for several prisoners, and was the subject of a judicial review challenge which eventually reached the House of Lords (In re Findlay [1985] AC 318). Focusing wholly on public law doctrine however, the court was not minded to interfere. Matters rested there until 1986 when a challenge was mounted to the Home Secretary’s ¢xing of the tari¡ for DLPs (R v. SSHD Ex parte Handscomb [1988] 86 Cr.App.R. 59). The Divisional Court in Handscomb was robust in asserting that for DLPs the tari¡ should be ¢xed strictly in accordance with the view of the trial judge. Douglas Hurd, the incumbent Home Secretary, acceded to the view of the judiciary in a policy statement made on 23 July 1987 (120 HC O⁄cial Report (6th series) written answers cols 347^349). However, although MLPs had not featured in Handscomb Hurd made it clear that the management of these prisoners’ sentences would remain ¢rmly in the hand of the executive. Furthermore there was now a new element added to the equation. As well as retribution and deterrence, in performing the tari¡-setting exercise the Home Secretary would in future take into account the ‘‘need to maintain public con¢dence in the system of justice’’ (ibid. col. 349). Meanwhile challenges were being mounted in Europe to the discretionary life sentence system. In Weeks V v. U.K. ([1988] 10 EHHR 293) the European Court of Human Rights examined the procedure for managing discretionary
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life sentences and found it to be wanting. Despite the discretionary life system not meeting the U.K.’s obligations under the Convention however, the Government did not amend the procedures in question. It was not until another case decided against the Government, Thynne v. U.K. ([1990] 13 EHHR 666), that change took place. The applicants in this case had argued that their continued detention post-tari¡ without judicial examination was in breach of the Convention. Following this case Discretionary Lifer Panels were established by the Criminal Justice Act 1991. The CJA 91 also further con¢rmed the power of the Home Secretary to both set tari¡s and determine release for MLPs, and this was recon¢rmed in the Crime (Sentences) Act 1997. Legal challenges (Doody v. SSHD [1993] 3 All ER 92, Pierson v. SSHD [1997] 3 All ER 577) continued through the 1990s, and despite the system for MLPs becoming fairer and more transparent, the divergence between the two sentences seemed set.
Myra Hindley’s Case: the Background and the Social and Legal Context The background In his judgment of Hindley’s 1997 judicial review application (R v. SSHD Ex Parte Hindley [1998] QB 751), the Lord Chief Justice makes a whole paragraph of the following: ‘‘These crimes, and the ensuing trial, received intense publicity, and aroused deep public enmity towards both Brady and the applicant’’ (p. 760). As was made clear in a February 1999 debate in the House of Lords [3], hyperbolic and hysterical press coverage continues to this day (586 HL O⁄cial Report cols 722^724) and contributes to Hindley’s continued incarceration despite her being judged no risk. The coverage tends to use terms like ‘evil monster’ (ibid.) and feature a photograph of Hindley taken on arrest which no one who has lived in the U.K. in the last 30 years could fail to recognize. The murders that formed the basis of the case were committed in Manchester between 1963 and 1965. Hindley was convicted of two murders and being an accomplice in a third; Brady was convicted of all three murders, and locally, feelings still run high. As one ‘investigative biography’ put it, the case has ‘‘eaten into the soul of a whole city’’ (Ritchie 1991; 262). Hindley has achieved iconic status in popular culture as well. One of the most popular rock groups of the 1980s, The Smiths, who were also from Manchester, recorded a song based on the crimes, ‘‘Su¡er the Little Children’’. In 1997 outrage was caused by the exhibiting of a facsimile of Hindley’s arrest photograph constructed from childrens’ handprints at London’s Royal Academy, and two men were arrested after throwing ink and eggs at the work. Numerous web sites with ‘chat pages’ devoted to the topic now exist (see for example
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http://lawlounge.com) and one of the country’s leading market research companies, MORI, even conducted a poll about her continued incarceration on the eve of her ¢rst judicial review challenge [4]. It is di⁄cult for anyone not resident in the U.K. to fully appreciate the impact that the case has had. Historically the murders happened at the dawning of a new age; a young Labour Government had been elected, the Beatles had arrived, and the permissiveness of the ‘swinging sixties’ had supplanted the greyness of the austere 1950s. As we have seen, the death penalty was abolished at precisely the time of Brady and Hindley’s arrest. The continuing impact of the case was assured by Hindley’s 1987 admission of complicity in the murder of three other children, and her and Brady’s separate visit to the Moors to point out possible grave sites. It is no exaggeration to say that the e¡orts of the media to secure photographs and the police response to these e¡orts took on the appearance of military operations. Moreover, as Brady has now been removed to a secure mental hospital (and has made it clear he wishes never to be released) public interest has been focused almost entirely on Hindley. This has resulted in some grotesque occurrences, particularly the appearance of Ann West, the mother of a victim, at London’s High Court for the Divisional Court hearing. Ms West, su¡ering from cancer and with weeks to live, arrived in a wheelchair and was invited to sit at the front of the court by the Lord Chief Justice. She later gave an interview to the BBC (broadcast 18 December 1997) in which she blamed the stress and strain of the case for her fatal illness. She also accused supporters of Myra Hindley of desecrating her daughter’s grave.
The social and legal context We saw above how by the mid-1990s the positions of the two life sentences, mandatory and discretionary, were diverging. Factors other than legal challenges to the management of life sentences contributed to this however. In February 1993 two 10-year-olds abducted 2-year-old James Bulger from a shopping centre in Liverpool and tortured and killed him. This sparked a national debate about crime and punishment [5]. As Ashworth & Hough (1996) put it, following the Bulger killing ‘‘there was close media attention to several crimes that would hardly have been reported at other times’’ (p. 783). It was also in this year that Michael Howard, the incumbent Home Secretary embarked on a crusade that ¢ts Bottoms’ (1995) model of ‘populist punitiveness’ (1995: 39). At the Conservative Party Conference in October 1993 he declared that ‘prison works’ and announced a programme of more punitive regimes in prison and a backtracking on the sentence liberalizing provisions of the CJA 1991. In the same year, the case of Doody saw a major victory for MLPs. The House of Lords was robust in declaring that the Home Secretary must act fairly in managing mandatory life sentences, ¢nding that ‘‘having regard to
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the rights which discretionary life prisoners have’’ (op. cit. p. 94), MLPs were entitled to certain rights. These included in particular the right to know the reasons for the Home Secretary’s departing from the judicial recommendation on tari¡ and disclosure of the documents on which the decision was based. A MLP was also entitled from this point forward to make representations before the ¢nal tari¡ was set. The court in Doody however stopped short of judicializing the tari¡-setting process. On the contrary, they held that not only was the ¢nal decision on tari¡ the Home Secretary’s, but also that he ‘‘is compelled, or at least entitled, to have regard to broader considerations of a public character than those which apply to an ordinary sentencing function’’ (p. 105). In reaching this conclusion the court examined a policy statement by a Junior Minister, Angela Rumbold (195 HC O⁄cial Report (6th series) cols 309^310). This had reiterated Douglas Hurd’s 1987 policy statement but now the issue of the post-tari¡ release of the MLP had been con£ated with that of tari¡ setting. After making it clear that the MLP had forfeited ‘‘his liberty to the state for the rest of his days’’ she went on: The presumption is, therefore, that the o¡ender should remain in custody until and unless the Home Secretary concludes that the public interest is better served by the prisoner’s release than by his continued detention. In exercising his continued discretion in that respect, the Home Secretary must take account, not just of the question of risk, but of how society as a whole would view the prisoner’s release at that juncture
Following Doody, Michael Howard made his response in Parliament on 27 July 1993 (299 HC O⁄cial Report (6th series) written answers cols 861^864), accepting the court’s ruling and giving e¡ect to their decision. He went further however; he adopted the view of Angela Rumbold and expanded itöafter quoting the above verbatim he added at the end ‘‘The Home Secretary takes account of the judicial recommendation, but the ¢nal decision is his’’ (ibid.). There was more; henceforth the tari¡ set at the beginning of an MLP’s sentence was no more than an ‘initial view’ and it was open to a Home Secretary to revise it upwards or downwards. Understandably, a legal challenge to this was immediately mounted, ¢nally reaching the House of Lords in July 1997. In Pierson v. SSHD (op. cit.) the court, despite con£icting speeches, held that the tari¡-setting exercise was analogous to a sentencing exercise. As Lord Steyn put it: ‘‘The undeniable fact is that in ¢xing a tari¡ in an individual case the Home Secretary is making a decision about the punishment of a convicted man’’. In reaching its decision the House of Lords relied on an earlier case, that of the convicted killers of James Bulger (Ex parte Venables, op. cit.). There the court had decided that in the case of HMPs the Home Secretary must be £exible in the exercise of his tari¡-setting powers, to take account of the welfare of the young person and the considerable change that takes place in the move from boyhood to manhood. Despite the inroads into the discretionary
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power the Home Secretary wielded, the fundamentals of mandatory life sentence managementötari¡-setting and decision on releaseöremained wholly with the executive. In May 1997 the Labour Party was elected to power with a huge majority. One of the platforms on which they stood was e¡ectively a continuation of Michael Howard’s populist punitive policies. Certainly when it came to the response to the judgment in Pierson, Jack Straw, the new Home Secretary, was not prepared to give very much. He held on to the principle that the ¢rst tari¡ set for an MLP was an ‘initial’ view, and emphasized that a tari¡ may be altered upwards or downwards at a later date. There was, however, a slight shift in emphasis. First, there was a clearer divide between tari¡-setting and release on licence. The ¢rst would be done by reference only to retribution and deterrence, the latter by reference to risk and the ‘‘need to maintain public con¢dence in the system of criminal justice’’ (10 November 1997, Hansard (HC Debates) cols 419^420: written answer). Second, tari¡s, once set, would only be altered in ‘exceptional circumstances’ and this would include the possibility of a reduction because of ‘exceptional progress’ by the prisoner. This was something that Michael Howard was not prepared to concede.
Myra Hindley’s Case: the Judicial Review Challenges As we have seen, Myra Hindley was sentenced to life when the concept of a properly managed, legally structured life sentence was in its infancy. The original trial judge made no formal recommendation as to tari¡. He did however write to the Home Secretary after passing sentence, and the original letter was reproduced in the judgment of Hindley’s ¢rst judicial review challenge, R v. SSHD ex parte Hindley (op. cit.). This document is remarkable for its ambiguity. Thus, he initially states that there was no recommendation made ‘‘[i]n passing sentence because the only possible one would have been at that stage that neither of them would have been set free again’’ (p. 760). Yet he follows this with remarks about Hindley not being beyond redemption, and then measures her incarceration against Brady’s: I hope Brady will not be released in any foreseeable future . . . and that Hindley (apart from some dramatic conversion) will be kept in prison for a very long time . . . I do not claim su⁄cient prophetic insight to venture to suggest any term of years (ibid.).
Apart from the clear indication that the trial judge was thinking at least along the lines of eventual release, one other matter to re£ect on when examining this letter is Hindley’s degree of culpability, a focus point for her campaigners. Thus, Fenton Atkinson’s letter remarks on the possibility of Hindley’s redemption once she is ‘‘removed from his in£uence’’, an in£uence which has ‘‘deeply corrupted’’ her. This was also the basis on which the Crown presented
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the case at trial. As Bingham LCJ puts it: ‘‘Brady was the initiator of these crimes, and the actual killer; the applicant was cast as his willing accomplice, corrupted and dominated by him’’. Because of the early, haphazard management of mandatory life sentences and the secrecy that surrounded it Hindley knew nothing of her tari¡ until December 1994. She was then informed that in July 1990 a decision was made to detain her for life. She was also told that in January 1985 a decision to set her tari¡ ‘initially’ at 30 years had been taken. This information became known to her lawyers only as a result of the £ood of documents that were released under the new disclosure rules following Doody. In December 1994 the incumbent Home Secretary, Michael Howard, gave de facto recognition to the ‘whole life tari¡ ’ (Hansard (H.C.) Debates: written answers, cols 234^235). He made it clear that although he would review the detention of such prisoners after 25 years, with a view to considering whether to convert it to a determinate period, the only consideration was whether the requirements of retribution and deterrence had been met. This meant of course that any progress a prisoner would make was not a consideration. Re£ecting on Fenton Atkinson J’s remarks about ‘redemption’ it is easy to see how Hindley was disadvantaged by this policy. As a result of an invitation to do so from Michael Howard, lawyers for Hindley made representations as to why she should be given a determinate tari¡. His response in February 1997 was to con¢rm the whole life tari¡, a decision that formed the basis of the judicial review challenge. This focused on two issues, the lawfulness of the whole life tari¡ itself and the refusal to take into account factors other than retribution and deterrence in considering a tari¡ conversion from whole life to a determinate period. In the court of ¢rst instance in December 1997 the application was successful on the second point and failed on the ¢rst. Events had however overtaken the legal process. As we saw above (p. 112) there was a new incumbent Home Secretary, Jack Straw, who had announced a change in policy following Pierson: So far as the potential for a reduction in tari¡ is concerned, I shall be open to the possibility that, in exceptional circumstances, including for example exceptional progress by the prisoner whilst in custody, a review and reduction of the tari¡ may be appropriate (op. cit.).
The court then found that Michael Howard’s policy on this point had been unlawful, but that had been e¡ectively remedied by Straw’s new policy. Nearly a year later the Court of Appeal considered that matter again. Once again it was found that a whole life tari¡ was not unlawful. It is clear from reading the judgment that the case is one that the senior judiciary found deeply troubling. First, the court made it clear that their brief extended no
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further than the legality of the decision-making process. As Lord Woolf MR put it: It is not part of our function to decide whether the applicant should be released from prison, or whether she should remain in prison; or, if she is to remain in prison, to decide how long she should remain in prison (p. 1258).
This was of course a given, in doctrinal terms at least, as this was a judicial review challenge. It is signi¢cant, however, that Woolf felt it necessary to point this out. Woolf was also concerned about the whole life tari¡, ¢nding it conceptually dubious. His solution was to re-cast it as a ‘non-life tari¡ ’, a species of indeterminate sentence that, whilst an exception to the normal policy for MLPs, is not by virtue of its exceptional nature unlawful. There were further problems for the Court of Appeal; in both the case of Venables and Pierson the House of Lords had indicated, albeit in a confusing manner, that the ¢xing of an MLPs tari¡ was the exercising of a function that was analogous to sentencing. Furthermore, the Lords ruled that there was no general power vested in the Home Secretary to increase a tari¡ once lawfully ¢xed and communicated to the prisoner. However, this was to be seen purely in administrative law termsöin other words the test would be restricted to whether or not there was any abuse of process or unfairness in the procedure. The di⁄culty for Myra Hindley (and the courts) was that there had been a tari¡, ¢xed at 30 years. This, however, was ¢xed in January 1985, before prisoners had access to such information. Furthermore the Home Secretary was apparently, only drawing a ‘provisional conclusion’ in deciding on this ¢gure. The provisional nature of the tari¡ and the fact that it had not been communicated to Hindley resulted in her appeal failing. The case ¢nally reached the House of Lords in February 2000, with judgment given on 30 March 2000 (R v. Secretary of State for the Home Department Ex parte Hindley, The Times: 31 March 2000). The appeal focused on two issues: the general point of the unlawfulness of whole life tari¡s, and the speci¢c point of the unlawfulness of the treatment of Hindley. The court chose once again to see the issue as simply one of administrative law doctrine, ¢nding nothing unlawful either in the concept of a whole life tari¡, nor in its use in this case.
Asking the Jurisprudential Question At the heart of the Myra Hindley case lies a question that is fundamental to jurisprudence. In outlining how the city states of Ancient Greece were formed, David Cohen emphasizes the importance of the nascent legal institutions: Henceforth, citizens may not pursue private vengeance for wrongs done to them, but must bring their case before the representatives of
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the polis and submit to its judgment. The principle of blood vengeance . . . is transformed and incorporated within the new framework of civic institutions where it will help to preserve Athens from enemies within and without. Legal process triumphs over private violence (Cohen 1987: 3).
For constitutional lawyers the rule of law is fundamental. We argue that the triumph of legal process over private vengeance is the purest representation of the rule of law, as it was originally formulatedöas the rule of law, not men. In this form it implies a dispassion that transcends the thirst for blood that follows horrendous crimes. The Hindley case also starkly illustrates the wider, and problematic, relationship between the executive and the judiciary, an issue the judiciary have shown themselves to be well aware of in cases involving life sentence prisoners. As just one example, the doctrine of the separation of powers, notwithstanding its dubious position in the U.K.’s constitutional arrangement, was used by Lord Steyn in the Venables case to justify his ¢ndings: as he puts it, because the Home Secretary is carrying out a judicial function, which is ‘‘[c]ontrary to the constitutional principle of the separation of powers’’ he must ‘‘[n]ot act contrary to the fundamental principles governing the administration of justice’’ (op. cit.: p. 147). As every ¢rst-year law student knows, Dicey (1968) saw the rule of law as one of the twin peaks of our constitution, along with Parliamentary supremacy. As he put it: By every path we come round to the same conclusion, that Parliamentary sovereignty has favoured the rule of law, and that supremacy of the law of the land both calls forth the exertion of parliamentary sovereignty, and leads to it being exercised in a spirit of legality (p. 414).
Extending our argument about the rule of law then, we contend that constraining capriciousness is fundamental to ensuring that such sovereignty, in this case represented as executive discretion, is ‘‘exercised in the spirit of legality’’. The further di⁄culty which the Hindley case encapsulates is that with life sentence prisoners, and MLPs in particular, we are, whether we acknowledge it or not, dealing with punishment. Thus, the lawyers for Hindley, as in Pierson’s earlier cases, tried to argue that it is fundamental to the common law that punishment should not be enhanced retrospectively, that the judiciary should accept as a principle the concept of ‘‘non-aggravation of penalties’’. This they were not willing to do, preferring to stay within the parameters of public law doctrine, a re£ection perhaps of a general desire not to stray into the territory of executive discretion. This will undoubtedly remain so, as long as judicial review remains the only means by
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which MLPs can challenge the tari¡-setting exercise. As Lord Mustill put it in Doody: I think it is quite impossible for the courts to introduce a fundamental change to the relationship between the convicted murderer and the state, through the medium of judicial review (p. 105).
Conclusion and Comparisons It is an axiom of our legal system that ‘hard cases make bad law’. We argue that not only is this correct, but also that we can extend this to take account of ‘hard’ as meaning rock-like, impenetrable. Certainly this is an apt metaphor for the Hindley case, as despite all the advances in judicializing the life sentence process, when the courts butt up against this case there is no further movement. Regardless of the rhetoric, the courts know that the real issue is not before them. This was acknowledged in a refreshingly candid way by Bingham LCJ in the Divisional Court. This application is of great importance to the applicant as also to those who continue to su¡er from her crimes. But I part from the case uneasily conscious that the issues which may really underlie the case are not before us. There is room for serious debate whether the task of determining how long convicted murderers should serve in prison as punishment for their crimes should be undertaken by the judiciary (as in the case of discretionary life prisoners) or, as now, by the executive. That is, in large measure, a political and constitutional question. It is not a question for decision by this court. The applicant clearly feels that she is held hostage to public opinion, condemned to pass the rest of her life in prison, although no longer judged a danger to anyone, because of her notoriety and the public obloquy which would fall on any Home Secretary who ordered her release (p. 779).
A further problem with Hindley’s case is also illustrated by this passage; Bingham is quite correct to say that any Home Secretary would su¡er public obloquy for releasing Hindley, although ‘committing political suicide’ would perhaps be more apt. This has meant, we suggest, that the position of all MLPs, some 3000, will remain the same, as any Government that changed its stance on MLPs would automatically be pilloried as those who ‘let Myra Hindley out of prison’ [6]. When one contrasts the position of MLPs with DLPs, moreover, a great irony is apparent. As was pointed out in the cited parliamentary debate in the House of Lords, MLPs di¡er greatly in terms of the nature of their crime, and some could never be said to be terribly dangerous (op. cit. cols 283^304). With the case of mercy killers, indeed, one could argue that they would even be viewed as sympathetic characters. The same could not be said of DLPs who usually have committed extremely nasty crimes. Yet the current position means that all murderers are treated the same, and are subject to a quotient of punishment that is ultimately
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politically-determined. With the recent total judicializing of the HMP process moreover (above p. 3) the ¢nal block to equalizing all life sentences has been removed, as the mandatory life sentence is now unique in this country in having executive involvement. It appears that there is no hope from Europe either; despite the intervention of the European Court of Human Rights on behalf of DLPs (Thynne v. U.K. op. cit.) and HMPs (Singh v. U.K. (1996) 1 BHRC 119: T v. U.K.: Vv. U.K. op. cit.) they have shown themselves unwilling to similarly intervene on behalf of MLPs. In Wynne v. U.K. ([1997] 19 EHRR 333) a clear distinction between DLPs and MLPs was drawn by the court. For them, the two sentences are not to be viewed as the same, as they serve di¡erent purposes, and are informed by di¡erent philosophies [7]. Essentially they saw the discretionary life sentence as a unique punitive measure tailored to the characteristics of the o¡ender, whereas the mandatory life sentence was ¢xed by law as a re£ection of the peculiar opprobrium with which our society views the murderer. Yet an examination of Western European legal systems reveals not a single jurisdiction that has an equivalent arbitrarily assigned tari¡ for the life sentence (McGeorge 1990). Even Russia, in its abolishing the death penalty as part of its e¡ort to join the Council of Europe has decided on constructing its new life sentence with a ¢xed 25-year penal period (Moscow Center for Prison Reform 1998). In an earlier article (Schone 1999) we called for more international academic research into punishment from a prison law perspective, as this enables a clearer ‘reading’ of penal policy. We echo this with our analysis of the current structure of the mandatory life sentence. Such research as there is that deals with the topic tends to do so obliquely, usually by reference to the sentencing of violent o¡enders (Henham 1993; Fitzgerald 1995). One of the di⁄culties is that as an object of study, life sentence structures is the natural preserve of criminal justice, the blending of criminology and law. As a subject it falls between public law, criminal law, and the half-discipline sentencing law, yet not being wholly subsumed under any of these headings the individuals who seek the law’s protection lack full juridical guard. This is particularly why more international work is needed, to bolster the argument that MLPs in the U.K. are in a legally unfortunate and morally unsustainable position. In summary, as lawyers challenged the extent of executive discretion in relation to life sentence prisoners here and in Europe there was a divergence between discretionary and mandatory sentences, with DLPs accumulating a panoply of positive rights in what became an entirely judicial process. MLPs by contrast, although they gained some rights, still have their tari¡s determined by the executive. Myra Hindley’s case exempli¢es the di⁄culties of law growing organically in the fashion that the law relating to life sentence prisoners has in this country, as whilst there is a murderer who has become an icon of evil through constant press damnation there is little chance of
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aggressive judicial intervention. Furthermore, the Hindley case raises fundamental issues about the rule of law and the nature of punishment in our society. In strict doctrinal terms the courts’ decisions in Hindley may have been correct. The fact is that, dress it up as you may, the indication and expectation at Hindley’s sentencing and for at least 20 years afterwards was that she would eventually be released. It should make no di¡erence that it was not communicated to her. Leaving aside the public opinion point, she is essentially being detained as a result of a historical accident, for there is no doubt that had the 30-year ‘provisional’ tari¡ been communicated to her in 1985 things would have been di¡erent, notwithstanding her 1987 confession of further murders. We argue further that the setting of a tari¡ is a sentencing exercise, despite the protestations of some members of the judiciary. It is also not enough to argue, as Lord Woolf does rather weakly, that the courts’ decision will have no e¡ect on Hindley’s eventual release date. It is clear that the two killers of Jamie Bulger will eventually be released, particularly now as their tari¡ is to be set by the Lord Chief Justice [8]. The complete judicialization of the HMP sentence is a demonstration of the dramatic impact that condemnatory comment from the judiciary can have upon the executive. Following Venables, HMPs no longer have their tari¡s determined by those whose livelihood depends upon the public’s view. This is, we argue, entirely as it should be, for it removes by one step the punishing of the individual from those who wish to wreak vengeance. If Venables demonstrates only one thing it is that hard cases do not necessarily make bad law. There is no reason why there cannot be a system with one entirely judicialized life sentence, whether mandatory or discretionary at point of imposition. In an editorial comment in the Criminal Law Review (1996, p. 609), as Pierson and Venables were wending their way through the courts, the position of the Home Secretary vis a' vis MLPs was referred to as ‘Canute-like’. This may have been an apt metaphor at the time, but as the Hindley case has progressed the ‘line in the sand’ is perhaps more ¢tting, as one detects a sense amongst the senior judiciary of ‘this far and no further’. Myra Hindley’s case is the point at which this line has been drawn, we suggest. There is a fundamental unfairness to her case as she has been e¡ectively re-sentenced, and, as Hobhouse L.J. pointed out, when the Venables case was heard in the Court of Appeal ‘‘The sentence is passed having regard to the state of a¡airs existing at the time sentence is passed’’ (1997 1 All ER 327^ 355). The concept of a tari¡ barely existed at the time Hindley was sentenced, and as we have seen Lord Woolf was profoundly uncomfortable with the notion of a ‘whole life tari¡ ’, a penal construct that post-dated Hindley’s sentencing by over two decades. There is a wider concern however. As TRS Allan (1999), a leading theorist of the rule of law points out: At the core of the liberal ideal of a government of laws, and not of men, is the conviction that the state’s interference with the liberty or property of
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individuals must be regulated by general laws, whose purpose are directed to some aspect of the common good and are not designed speci¢cally to a¡ect the circumstances of particular, identi¢able persons (p. 222).
We could hardly have a more startling representation then of the undermining of the rule of law than a penal policy that is ¢xed at a certain point as a consequence of one individual case. Furthermore, although there is vague authority in English Law for the notion that public opinion has a place in sentencing (R v. Sargeant [1974] 60 Cr.App.R. 74) [9] it is unjust and venturing on the obscene to equate tabloid press-engendered opinion with the ‘common good’. This was stated in the clearest terms by Lord Steyn in Venables: Plainly a sentencing judge must ignore a newspaper campaign designed to encourage him to increase a particular sentence. It would be an abdication of the rule of law for a judge to take into account such matters. The same reasoning must apply to the Home Secretary when he is exercising a sentencing function (op. cit. p. 147).
With the Hindley case, the hardest of hard cases, there is an abdication of the rule of law. The announcement that henceforth all HMPs will have their tari¡ decided by the judiciary, notwithstanding its impact upon the case of the Bulger killers, passed without major incident, and was even met with approval in some quarters [10]. Following this there is now no reason why the government could not announce that MLPs should likewise have their tari¡s decided by the judiciary. Should they do so, they would not only ¢nally rectify an anomaly in our legal system that is the result of nothing more than a historical accident, but would, more importantly, reassert the importance of the rule of law in our constitution.
Notes 1 p. 114 of the judgment. Referring to the media campaign to keep the killers of James Bulger in prison for life, he states ‘‘Little credit can be given to favourable responses to a campaign that the two applicants should rot ‘in jail’ for the rest of their lives, especially when it is borne in mind that those who responded may well have been unaware that, even after the penal element in their sentences had been served, their release would not be automatic. . .’’. 2 As this paper is concerned with the punishment aspect of the life sentence we shall not be examining the recall procedure. In terms of this procedure there is no real di¡erence between the various types of life sentence. See Livingstone & Owen (1999: ch. 13, 14). 3 Some confusion may arise here. The House of Lords has two constitutional functions. It is the upper chamber of the United Kingdom’s Parliament, and is also the highest court in the land. It should be clear from the context to which we are referring.
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4
cf.http://www.mori.com/polls/1997/hindley.htm. The upshot of the poll was that two-thirds disagreed with the view that they should respect the Home Secretary’s decision if he decided to release her. 5 Even the most cursory of searches throws up a series of articles in the British press that re£ect this. In particular there was considerable concern expressed about the criminal justice system. Two cases in particular seemed to inspire adverse commentary. One was the dropping of charges against a couple suspected of cruetly against their child, who later died. They had both remained silent in the face of police questioning. See ‘‘Child’s death exposes legal £aw’’ (The Guardian: 16 January 1993). In July of that year Joseph Elliott was acquitted of the murder of Robert Osborne. Osborne was stabbed by Elliott when he confronted him for committing criminal damage, and Elliott successfully pleaded self-defence at his trial. See ‘‘Vigilante’s stabbing prompts self-defence study’’ (The Guardian: 15 July 1993). There were also wider concerns expressed about a perceived increase in vigilantism and ‘DIY justice’ (see the article by Ian McKenzie, a former police o⁄cer in The Guardian on the same day). In addition cases like that of Beverley Allitt, convicted in May 1993 of the murder of children in her care, caused considerable concern at the state of statutory provisions for the supervision of the mentally ill. See ‘‘Mentally ill people kill 32 in a year, study ¢nds’’ (The Independent: 14 August 1993). 6 This is illustrated by remarks made by Lord Longford in the cited debate in the House of Lords: ‘‘I am not surprised that people in this house and elsewhere say to me, ‘I agree with you, my dear chap. Of course after all these years she ought to come out. But you can’t imagine any Home Secretary having the guts to let her out, can you? Think what would happen to him. Think what the tabloids would do to him.’ This is what many people say to me about tabloid pressure’’ (op. cit. col 723). 7 Wynne is still good law, despite the court in Strasbourg ¢nding that the executive’s setting of the tari¡ in HMP cases to be a breach of Article 51 and 54. T v. U.K.: R V. v. U.K. (above p. 3). 8 In his statement to the House of Commons the Home Secretary stated that the tari¡ in the particular case of Robert Thompson and Jon Venables would be referred to the Lord Chief Justice for determination. 9 In this case Lawton LJ remarked, whilst outlining the principles that underlie sentencing ‘‘There is, however, another aspect of retribution which is frequently overlooked: it is that society, through the courts, must show its abhorrence of particular types of crimes, and the only way in which the courts can show this is by the sentences they pass. The courts do not have to re£ect public opinion. On the other hand the courts must not disregard it. Perhaps the main duty of the court is to lead public opinion’’ (p. 77). 10 See ‘‘Mr Straw, it’s time to listen to the courts’’ (The Times: 11 April 2000).
References Allan, T.R.S. (1999) The rule of law as the rule of reason: consent and constitutionalism. Law Quarterly Review 115, 221^224.
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Ashworth, A. & Hough, M. (1996) Sentencing and the climate of opinion. Criminal Law review, 776^787. Blom-Cooper, L. & Morris, T. (1996) The penalty for murder: a myth exploded. Criminal Law Review, 707^717. Bottoms, A. (1995) The philosophy and politics of punishment and sentencing. In The Politics of Sentencing Reform, Clarkson, C. & Morgan, R. (Eds), Clarendon: Oxford. Coker, J.B. & Martin, J.P. (1985) Licenced To Live. Blackwell: Oxford. Cohen, D. (1987) Law, Violence, and Community in Classical Athens. Cambridge UP: Cambridge. Dicey, A. (1968) Introduction to the Study of the Law of the Constitution (10th edn). Macmillan: London. Fitzgerald, E. (1995) The Criminal Justice Act 1991: preventative detention of the dangerous o¡ender. European Human Rights Law Review, 39^48. Henham, R. (1993) The European context of sentencing violent o¡enders. International Journal of the Sociology of Law 21, 265^280. Livingstone, S. & Owen, T. (1999) Prison Law: Text and Materials (2nd edn). Oxford UP: Oxford. McGeorge, N. (1990) A Fair Deal for Lifers. Quaker Council for European A¡airs: Brussels. Moscow Center for Prison Reform (1998) Human Beings and Prison. Information and materials published in conjunction with the Ford Foundation: Moscow. Ritchie, J. (1991) Myra Hindley: Inside the Mind of a Murderess. Grafton: London. Schone, J.M. (1999) Legacy of a con£ict: special secure units, penal policy, and the law International Journal of the Sociology of Law 27, 207^228. Wilson, C.R.M. (1993) ‘Going to Europe’: prisoners’ rights and the e¡ectiveness of European Standards. International Journal of the Sociology of Law 21, 245^264.
The Hardest Case of All: Myra Hindley, Life Sentences, and the Rule of Law J. M. SCHONE Centre for Comparative Criminology and Criminal Justice, University of Wales, Bangor, U.K.
Introduction Myra Hindley is still in prison 33 years after her conviction for two murders perpetrated with her lover, lan Brady. These crimes, known as the ‘Moors Murders’ are deeply embedded in the collective consciousness of our society and it is no exaggeration to say that Hindley is popularly considered to be the embodiment of evil. Over the last 5 years she has mounted legal challenges to the Home Secretary’s right to determine the length of her detention. In this paper we argue that this single ‘hard case’ has had an irrevocable e¡ect on penal policy in the United Kingdom. Our thesis is that as Hindley has mounted these challenges the position of the Home Secretary has hardened, in the main because of the political impact of any executive action that could lead to her release. Because Hindley is a mandatory life prisoner (MLP) her case has had a profound impact on the law relating to such prisoners, and has prevented it from remaining in step with the law relating to discretionary life prisoners (DLP). Furthermore the position of the executive in this matter is now so ¢rmly entrenched it is highly unlikely that the legal position of the MLP will ever change. As Lord Go¡ pointed out in recent case dealing with another notorious murder, (R v. SSHD ex parte Venables [1997] 3 All ER 97) the public do not appreciate what a life sentence means [1]. We go further, however, and suggest that the legal position of the life prisoner is often misunderstood and frequently ignored by the academic community. For that reason we shall begin with an outline of the legal position today, before examining the historical background. We shall then examine the Hindley case in detail. 0194-6595/ 00/ 040273+17 $3500/ 0
# 2000 Academic Press
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The Current Structure There are currently four types of life sentence in English law. They all, however, have one feature in common. That is that once subject to a life sentence the prisoner is never free of it. He or she can be recalled to prison until the end of his or her life [2]. (1) Mandatory life This sentence is the only permissible in English law following a conviction for murder. After sentencing the trial judge makes a recommendation as to the period of years the prisoner should serve to satisfy the requirements of retribution and deterrence (the ‘tari¡ ’). The Lord Chief Justice, England’s senior criminal law judge, then adds his or her comments and recommendation, if di¡erent from the trial judge. The Home Secretary then makes the ¢nal decision on the tari¡ ¢gure. Before he does so he makes his initial view known to the prisoner, and discloses the paperwork on which he is basing his decision. The prisoner can then make representations prior to the ¢nal setting of the tari¡. When the prisoner has served his tari¡ release on licence is possible, but remains wholly within the discretion of the Home Secretary. In his decision-making role however the Minister is subject to standard administrative law requirements of fairness. (2) Discretionary life As the name implies this sentence is passed at the discretion of the trial judge, following conviction of an o¡ence for which life imprisonment is the maximum. At the sentencing the judge announces the tari¡, which is ¢xed at this point. Immediately at expiration of tari¡ the prisoner has an oral hearing to determine whether he is ¢t to be released, the only concern being the risk the prisoner presents to society. The executive branch of government is not involved, save that the Home Secretary is a party at this hearing, which has an adversarial format. (3) Automatic life This was introduced by the Crime (Sentences) Act 1997. It is mandatory, with certain exceptions, following conviction of a second serious violent or sexual o¡ence. It is, however, identical in all other respects to the discretionary life sentence. (4) Detention at Her Majesty’s Pleasure (HMP) This is the mandatory sentence passed on under-18s convicted of murder. Following the appeal to the House of Lords by the two boys convicted of the murder of James Bulger, R v. SSHD Ex Parte Venables (op cit) the law was in some state of confusion, with tari¡ being within the Home Secretary’s discretion, and release determined following a hearing before a panel similar to that for DLPs (Livingstone & Owen 1999: 415^418). However, in December 1999 the European Court of Human Rights gave judgment in the case of the Bulger killers (T v. United Kingdom; V v. United
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Kingdom; The Times: 17 December 1999). Following this the Home Secretary made an announcement in the House of Commons on 13th March that henceforth tari¡s for HMPs would be set by the sentencing judge, bringing this sentence totally in line with DLPs.
The Genealogy of the Life Sentence Prior to the 1950s the law in this area was relatively simple, particularly as regards murder, as there was just one sentenceödeath. Any commutation of this remained in the gift originally of the monarch and later of the Home Secretary (Blom-Cooper & Morris 1996). Life imprisonment had also been the maximum sentence for many crimes (cf. O¡ences Against the Person Act 1861), but it was not until the 1950s that the discretionary life sentence was developed as a penal technique. As Fitzgerald points out, it was then that the judiciary began to use this sentence for the preventative detention of ‘dangerous o¡enders’ who had been convicted of serious violent or sexual o¡ences carrying the life sentence (Fitzgerald 1995: 40). In 1965 the death penalty was ¢nally abolished and it was in the same period that the English courts began to lay down the principles that governed the imposing of a discretionary life sentence. These were generally that the o¡ence was very serious, the defendant was unstable and likely to reo¡end, and that the consequences of such reo¡ending would be especially injurious to the others (R v. Hodgson (1968) 52 Cr. App.R. 113). The abolition of the death penalty was not a smooth process. As BlomCooper and Morris point out, moreover, a myth surrounds the process. It is popularly believed, and according to them untrue, that the retaining of a mandatory life sentence for murder was part of a bargain struck when the Murder (Abolition of Death Penalty) 1965 Act was going through Parliament. Whatever the truth of this, it is beyond doubt that the di⁄cult position of MLPs is a direct consequence of that Act, as there was concern at the time that the Home Secretary, having the power to release MLPs, would be too lenient and release prisoners on licence too easily. This was why the Act speci¢ed that the incumbent Home Secretary must consult with the trial judge and the Lord Chief Justice in both setting the tari¡ and deciding on release (Coker & Martin 1985: 14^15). More protection against politically-determined leniency was provided by the Criminal Justice Act 1967, which established the Parole Board, a new body which had the task of examining the ¢tness for release of all life sentence prisoners. The power to release remained with the Home Secretary, but in future no release could take place without a prior recommendation of the Board. It appears overall that in the post-war period the focus of attention in penal policy making was the abolition of the death penalty. Less thought, however, was given to how the life sentence that replaced that penalty would be managed.
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Over the next 10 years there was little change in the position of life sentence prisoners, with the tari¡-setting exercise and decisions on release remaining wholly in the realm of executive discretion. Consequently little was known about either. In 1979 however, the case of Ex parte St Germain ([1979] QB 425), using the medium of judicial review, saw the beginning of challenges to this discretion, and the birth of prison law as a body of legal doctrine. During the 1970s, following from the case of Golder ([1975] 1 EHHR 524), prisoners had also begun to challenge the prison authorities in the European Court of Human Rights (Wilson 1993). This movement to have prisoners recognized as individuals with legally enforceable rights vis a' vis the state reached its apotheosis with the 1983 case of Raymond v. Honey ([1983] 1 A 1) in which Lord Wilberforce famously remarked that ‘‘[a] convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication. . .’’ (p. 10). It was also at this time that the Government began to address the issue of life tari¡s and release from prison. Following a rise in public concern at the levels of violent crime and speci¢c cases in which released prisoners had committed such crimes (Coker & Martin 1985: 29^30), the then Home Secretary, Leon Brittan, issued a policy statement on 30 November 1983 (49 HC O⁄cial Report (6th Series) written answers cols 505^507). The importance of this statement was that it was the ¢rst time the tari¡/post-tari¡ divide was o⁄cially recognized. Of crucial importance for our purposes was the criteria for decisions made around these two stages. The ¢rst was de¢ned wholly in terms of retribution and deterrence and the second wholly in terms of risk. Brittan’s (1983) policy statement had severe consequences for several prisoners, and was the subject of a judicial review challenge which eventually reached the House of Lords (In re Findlay [1985] AC 318). Focusing wholly on public law doctrine however, the court was not minded to interfere. Matters rested there until 1986 when a challenge was mounted to the Home Secretary’s ¢xing of the tari¡ for DLPs (R v. SSHD Ex parte Handscomb [1988] 86 Cr.App.R. 59). The Divisional Court in Handscomb was robust in asserting that for DLPs the tari¡ should be ¢xed strictly in accordance with the view of the trial judge. Douglas Hurd, the incumbent Home Secretary, acceded to the view of the judiciary in a policy statement made on 23 July 1987 (120 HC O⁄cial Report (6th series) written answers cols 347^349). However, although MLPs had not featured in Handscomb Hurd made it clear that the management of these prisoners’ sentences would remain ¢rmly in the hand of the executive. Furthermore there was now a new element added to the equation. As well as retribution and deterrence, in performing the tari¡-setting exercise the Home Secretary would in future take into account the ‘‘need to maintain public con¢dence in the system of justice’’ (ibid. col. 349). Meanwhile challenges were being mounted in Europe to the discretionary life sentence system. In Weeks V v. U.K. ([1988] 10 EHHR 293) the European Court of Human Rights examined the procedure for managing discretionary
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life sentences and found it to be wanting. Despite the discretionary life system not meeting the U.K.’s obligations under the Convention however, the Government did not amend the procedures in question. It was not until another case decided against the Government, Thynne v. U.K. ([1990] 13 EHHR 666), that change took place. The applicants in this case had argued that their continued detention post-tari¡ without judicial examination was in breach of the Convention. Following this case Discretionary Lifer Panels were established by the Criminal Justice Act 1991. The CJA 91 also further con¢rmed the power of the Home Secretary to both set tari¡s and determine release for MLPs, and this was recon¢rmed in the Crime (Sentences) Act 1997. Legal challenges (Doody v. SSHD [1993] 3 All ER 92, Pierson v. SSHD [1997] 3 All ER 577) continued through the 1990s, and despite the system for MLPs becoming fairer and more transparent, the divergence between the two sentences seemed set.
Myra Hindley’s Case: the Background and the Social and Legal Context The background In his judgment of Hindley’s 1997 judicial review application (R v. SSHD Ex Parte Hindley [1998] QB 751), the Lord Chief Justice makes a whole paragraph of the following: ‘‘These crimes, and the ensuing trial, received intense publicity, and aroused deep public enmity towards both Brady and the applicant’’ (p. 760). As was made clear in a February 1999 debate in the House of Lords [3], hyperbolic and hysterical press coverage continues to this day (586 HL O⁄cial Report cols 722^724) and contributes to Hindley’s continued incarceration despite her being judged no risk. The coverage tends to use terms like ‘evil monster’ (ibid.) and feature a photograph of Hindley taken on arrest which no one who has lived in the U.K. in the last 30 years could fail to recognize. The murders that formed the basis of the case were committed in Manchester between 1963 and 1965. Hindley was convicted of two murders and being an accomplice in a third; Brady was convicted of all three murders, and locally, feelings still run high. As one ‘investigative biography’ put it, the case has ‘‘eaten into the soul of a whole city’’ (Ritchie 1991; 262). Hindley has achieved iconic status in popular culture as well. One of the most popular rock groups of the 1980s, The Smiths, who were also from Manchester, recorded a song based on the crimes, ‘‘Su¡er the Little Children’’. In 1997 outrage was caused by the exhibiting of a facsimile of Hindley’s arrest photograph constructed from childrens’ handprints at London’s Royal Academy, and two men were arrested after throwing ink and eggs at the work. Numerous web sites with ‘chat pages’ devoted to the topic now exist (see for example
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http://lawlounge.com) and one of the country’s leading market research companies, MORI, even conducted a poll about her continued incarceration on the eve of her ¢rst judicial review challenge [4]. It is di⁄cult for anyone not resident in the U.K. to fully appreciate the impact that the case has had. Historically the murders happened at the dawning of a new age; a young Labour Government had been elected, the Beatles had arrived, and the permissiveness of the ‘swinging sixties’ had supplanted the greyness of the austere 1950s. As we have seen, the death penalty was abolished at precisely the time of Brady and Hindley’s arrest. The continuing impact of the case was assured by Hindley’s 1987 admission of complicity in the murder of three other children, and her and Brady’s separate visit to the Moors to point out possible grave sites. It is no exaggeration to say that the e¡orts of the media to secure photographs and the police response to these e¡orts took on the appearance of military operations. Moreover, as Brady has now been removed to a secure mental hospital (and has made it clear he wishes never to be released) public interest has been focused almost entirely on Hindley. This has resulted in some grotesque occurrences, particularly the appearance of Ann West, the mother of a victim, at London’s High Court for the Divisional Court hearing. Ms West, su¡ering from cancer and with weeks to live, arrived in a wheelchair and was invited to sit at the front of the court by the Lord Chief Justice. She later gave an interview to the BBC (broadcast 18 December 1997) in which she blamed the stress and strain of the case for her fatal illness. She also accused supporters of Myra Hindley of desecrating her daughter’s grave.
The social and legal context We saw above how by the mid-1990s the positions of the two life sentences, mandatory and discretionary, were diverging. Factors other than legal challenges to the management of life sentences contributed to this however. In February 1993 two 10-year-olds abducted 2-year-old James Bulger from a shopping centre in Liverpool and tortured and killed him. This sparked a national debate about crime and punishment [5]. As Ashworth & Hough (1996) put it, following the Bulger killing ‘‘there was close media attention to several crimes that would hardly have been reported at other times’’ (p. 783). It was also in this year that Michael Howard, the incumbent Home Secretary embarked on a crusade that ¢ts Bottoms’ (1995) model of ‘populist punitiveness’ (1995: 39). At the Conservative Party Conference in October 1993 he declared that ‘prison works’ and announced a programme of more punitive regimes in prison and a backtracking on the sentence liberalizing provisions of the CJA 1991. In the same year, the case of Doody saw a major victory for MLPs. The House of Lords was robust in declaring that the Home Secretary must act fairly in managing mandatory life sentences, ¢nding that ‘‘having regard to
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the rights which discretionary life prisoners have’’ (op. cit. p. 94), MLPs were entitled to certain rights. These included in particular the right to know the reasons for the Home Secretary’s departing from the judicial recommendation on tari¡ and disclosure of the documents on which the decision was based. A MLP was also entitled from this point forward to make representations before the ¢nal tari¡ was set. The court in Doody however stopped short of judicializing the tari¡-setting process. On the contrary, they held that not only was the ¢nal decision on tari¡ the Home Secretary’s, but also that he ‘‘is compelled, or at least entitled, to have regard to broader considerations of a public character than those which apply to an ordinary sentencing function’’ (p. 105). In reaching this conclusion the court examined a policy statement by a Junior Minister, Angela Rumbold (195 HC O⁄cial Report (6th series) cols 309^310). This had reiterated Douglas Hurd’s 1987 policy statement but now the issue of the post-tari¡ release of the MLP had been con£ated with that of tari¡ setting. After making it clear that the MLP had forfeited ‘‘his liberty to the state for the rest of his days’’ she went on: The presumption is, therefore, that the o¡ender should remain in custody until and unless the Home Secretary concludes that the public interest is better served by the prisoner’s release than by his continued detention. In exercising his continued discretion in that respect, the Home Secretary must take account, not just of the question of risk, but of how society as a whole would view the prisoner’s release at that juncture
Following Doody, Michael Howard made his response in Parliament on 27 July 1993 (299 HC O⁄cial Report (6th series) written answers cols 861^864), accepting the court’s ruling and giving e¡ect to their decision. He went further however; he adopted the view of Angela Rumbold and expanded itöafter quoting the above verbatim he added at the end ‘‘The Home Secretary takes account of the judicial recommendation, but the ¢nal decision is his’’ (ibid.). There was more; henceforth the tari¡ set at the beginning of an MLP’s sentence was no more than an ‘initial view’ and it was open to a Home Secretary to revise it upwards or downwards. Understandably, a legal challenge to this was immediately mounted, ¢nally reaching the House of Lords in July 1997. In Pierson v. SSHD (op. cit.) the court, despite con£icting speeches, held that the tari¡-setting exercise was analogous to a sentencing exercise. As Lord Steyn put it: ‘‘The undeniable fact is that in ¢xing a tari¡ in an individual case the Home Secretary is making a decision about the punishment of a convicted man’’. In reaching its decision the House of Lords relied on an earlier case, that of the convicted killers of James Bulger (Ex parte Venables, op. cit.). There the court had decided that in the case of HMPs the Home Secretary must be £exible in the exercise of his tari¡-setting powers, to take account of the welfare of the young person and the considerable change that takes place in the move from boyhood to manhood. Despite the inroads into the discretionary
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power the Home Secretary wielded, the fundamentals of mandatory life sentence managementötari¡-setting and decision on releaseöremained wholly with the executive. In May 1997 the Labour Party was elected to power with a huge majority. One of the platforms on which they stood was e¡ectively a continuation of Michael Howard’s populist punitive policies. Certainly when it came to the response to the judgment in Pierson, Jack Straw, the new Home Secretary, was not prepared to give very much. He held on to the principle that the ¢rst tari¡ set for an MLP was an ‘initial’ view, and emphasized that a tari¡ may be altered upwards or downwards at a later date. There was, however, a slight shift in emphasis. First, there was a clearer divide between tari¡-setting and release on licence. The ¢rst would be done by reference only to retribution and deterrence, the latter by reference to risk and the ‘‘need to maintain public con¢dence in the system of criminal justice’’ (10 November 1997, Hansard (HC Debates) cols 419^420: written answer). Second, tari¡s, once set, would only be altered in ‘exceptional circumstances’ and this would include the possibility of a reduction because of ‘exceptional progress’ by the prisoner. This was something that Michael Howard was not prepared to concede.
Myra Hindley’s Case: the Judicial Review Challenges As we have seen, Myra Hindley was sentenced to life when the concept of a properly managed, legally structured life sentence was in its infancy. The original trial judge made no formal recommendation as to tari¡. He did however write to the Home Secretary after passing sentence, and the original letter was reproduced in the judgment of Hindley’s ¢rst judicial review challenge, R v. SSHD ex parte Hindley (op. cit.). This document is remarkable for its ambiguity. Thus, he initially states that there was no recommendation made ‘‘[i]n passing sentence because the only possible one would have been at that stage that neither of them would have been set free again’’ (p. 760). Yet he follows this with remarks about Hindley not being beyond redemption, and then measures her incarceration against Brady’s: I hope Brady will not be released in any foreseeable future . . . and that Hindley (apart from some dramatic conversion) will be kept in prison for a very long time . . . I do not claim su⁄cient prophetic insight to venture to suggest any term of years (ibid.).
Apart from the clear indication that the trial judge was thinking at least along the lines of eventual release, one other matter to re£ect on when examining this letter is Hindley’s degree of culpability, a focus point for her campaigners. Thus, Fenton Atkinson’s letter remarks on the possibility of Hindley’s redemption once she is ‘‘removed from his in£uence’’, an in£uence which has ‘‘deeply corrupted’’ her. This was also the basis on which the Crown presented
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the case at trial. As Bingham LCJ puts it: ‘‘Brady was the initiator of these crimes, and the actual killer; the applicant was cast as his willing accomplice, corrupted and dominated by him’’. Because of the early, haphazard management of mandatory life sentences and the secrecy that surrounded it Hindley knew nothing of her tari¡ until December 1994. She was then informed that in July 1990 a decision was made to detain her for life. She was also told that in January 1985 a decision to set her tari¡ ‘initially’ at 30 years had been taken. This information became known to her lawyers only as a result of the £ood of documents that were released under the new disclosure rules following Doody. In December 1994 the incumbent Home Secretary, Michael Howard, gave de facto recognition to the ‘whole life tari¡ ’ (Hansard (H.C.) Debates: written answers, cols 234^235). He made it clear that although he would review the detention of such prisoners after 25 years, with a view to considering whether to convert it to a determinate period, the only consideration was whether the requirements of retribution and deterrence had been met. This meant of course that any progress a prisoner would make was not a consideration. Re£ecting on Fenton Atkinson J’s remarks about ‘redemption’ it is easy to see how Hindley was disadvantaged by this policy. As a result of an invitation to do so from Michael Howard, lawyers for Hindley made representations as to why she should be given a determinate tari¡. His response in February 1997 was to con¢rm the whole life tari¡, a decision that formed the basis of the judicial review challenge. This focused on two issues, the lawfulness of the whole life tari¡ itself and the refusal to take into account factors other than retribution and deterrence in considering a tari¡ conversion from whole life to a determinate period. In the court of ¢rst instance in December 1997 the application was successful on the second point and failed on the ¢rst. Events had however overtaken the legal process. As we saw above (p. 112) there was a new incumbent Home Secretary, Jack Straw, who had announced a change in policy following Pierson: So far as the potential for a reduction in tari¡ is concerned, I shall be open to the possibility that, in exceptional circumstances, including for example exceptional progress by the prisoner whilst in custody, a review and reduction of the tari¡ may be appropriate (op. cit.).
The court then found that Michael Howard’s policy on this point had been unlawful, but that had been e¡ectively remedied by Straw’s new policy. Nearly a year later the Court of Appeal considered that matter again. Once again it was found that a whole life tari¡ was not unlawful. It is clear from reading the judgment that the case is one that the senior judiciary found deeply troubling. First, the court made it clear that their brief extended no
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further than the legality of the decision-making process. As Lord Woolf MR put it: It is not part of our function to decide whether the applicant should be released from prison, or whether she should remain in prison; or, if she is to remain in prison, to decide how long she should remain in prison (p. 1258).
This was of course a given, in doctrinal terms at least, as this was a judicial review challenge. It is signi¢cant, however, that Woolf felt it necessary to point this out. Woolf was also concerned about the whole life tari¡, ¢nding it conceptually dubious. His solution was to re-cast it as a ‘non-life tari¡ ’, a species of indeterminate sentence that, whilst an exception to the normal policy for MLPs, is not by virtue of its exceptional nature unlawful. There were further problems for the Court of Appeal; in both the case of Venables and Pierson the House of Lords had indicated, albeit in a confusing manner, that the ¢xing of an MLPs tari¡ was the exercising of a function that was analogous to sentencing. Furthermore, the Lords ruled that there was no general power vested in the Home Secretary to increase a tari¡ once lawfully ¢xed and communicated to the prisoner. However, this was to be seen purely in administrative law termsöin other words the test would be restricted to whether or not there was any abuse of process or unfairness in the procedure. The di⁄culty for Myra Hindley (and the courts) was that there had been a tari¡, ¢xed at 30 years. This, however, was ¢xed in January 1985, before prisoners had access to such information. Furthermore the Home Secretary was apparently, only drawing a ‘provisional conclusion’ in deciding on this ¢gure. The provisional nature of the tari¡ and the fact that it had not been communicated to Hindley resulted in her appeal failing. The case ¢nally reached the House of Lords in February 2000, with judgment given on 30 March 2000 (R v. Secretary of State for the Home Department Ex parte Hindley, The Times: 31 March 2000). The appeal focused on two issues: the general point of the unlawfulness of whole life tari¡s, and the speci¢c point of the unlawfulness of the treatment of Hindley. The court chose once again to see the issue as simply one of administrative law doctrine, ¢nding nothing unlawful either in the concept of a whole life tari¡, nor in its use in this case.
Asking the Jurisprudential Question At the heart of the Myra Hindley case lies a question that is fundamental to jurisprudence. In outlining how the city states of Ancient Greece were formed, David Cohen emphasizes the importance of the nascent legal institutions: Henceforth, citizens may not pursue private vengeance for wrongs done to them, but must bring their case before the representatives of
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the polis and submit to its judgment. The principle of blood vengeance . . . is transformed and incorporated within the new framework of civic institutions where it will help to preserve Athens from enemies within and without. Legal process triumphs over private violence (Cohen 1987: 3).
For constitutional lawyers the rule of law is fundamental. We argue that the triumph of legal process over private vengeance is the purest representation of the rule of law, as it was originally formulatedöas the rule of law, not men. In this form it implies a dispassion that transcends the thirst for blood that follows horrendous crimes. The Hindley case also starkly illustrates the wider, and problematic, relationship between the executive and the judiciary, an issue the judiciary have shown themselves to be well aware of in cases involving life sentence prisoners. As just one example, the doctrine of the separation of powers, notwithstanding its dubious position in the U.K.’s constitutional arrangement, was used by Lord Steyn in the Venables case to justify his ¢ndings: as he puts it, because the Home Secretary is carrying out a judicial function, which is ‘‘[c]ontrary to the constitutional principle of the separation of powers’’ he must ‘‘[n]ot act contrary to the fundamental principles governing the administration of justice’’ (op. cit.: p. 147). As every ¢rst-year law student knows, Dicey (1968) saw the rule of law as one of the twin peaks of our constitution, along with Parliamentary supremacy. As he put it: By every path we come round to the same conclusion, that Parliamentary sovereignty has favoured the rule of law, and that supremacy of the law of the land both calls forth the exertion of parliamentary sovereignty, and leads to it being exercised in a spirit of legality (p. 414).
Extending our argument about the rule of law then, we contend that constraining capriciousness is fundamental to ensuring that such sovereignty, in this case represented as executive discretion, is ‘‘exercised in the spirit of legality’’. The further di⁄culty which the Hindley case encapsulates is that with life sentence prisoners, and MLPs in particular, we are, whether we acknowledge it or not, dealing with punishment. Thus, the lawyers for Hindley, as in Pierson’s earlier cases, tried to argue that it is fundamental to the common law that punishment should not be enhanced retrospectively, that the judiciary should accept as a principle the concept of ‘‘non-aggravation of penalties’’. This they were not willing to do, preferring to stay within the parameters of public law doctrine, a re£ection perhaps of a general desire not to stray into the territory of executive discretion. This will undoubtedly remain so, as long as judicial review remains the only means by
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which MLPs can challenge the tari¡-setting exercise. As Lord Mustill put it in Doody: I think it is quite impossible for the courts to introduce a fundamental change to the relationship between the convicted murderer and the state, through the medium of judicial review (p. 105).
Conclusion and Comparisons It is an axiom of our legal system that ‘hard cases make bad law’. We argue that not only is this correct, but also that we can extend this to take account of ‘hard’ as meaning rock-like, impenetrable. Certainly this is an apt metaphor for the Hindley case, as despite all the advances in judicializing the life sentence process, when the courts butt up against this case there is no further movement. Regardless of the rhetoric, the courts know that the real issue is not before them. This was acknowledged in a refreshingly candid way by Bingham LCJ in the Divisional Court. This application is of great importance to the applicant as also to those who continue to su¡er from her crimes. But I part from the case uneasily conscious that the issues which may really underlie the case are not before us. There is room for serious debate whether the task of determining how long convicted murderers should serve in prison as punishment for their crimes should be undertaken by the judiciary (as in the case of discretionary life prisoners) or, as now, by the executive. That is, in large measure, a political and constitutional question. It is not a question for decision by this court. The applicant clearly feels that she is held hostage to public opinion, condemned to pass the rest of her life in prison, although no longer judged a danger to anyone, because of her notoriety and the public obloquy which would fall on any Home Secretary who ordered her release (p. 779).
A further problem with Hindley’s case is also illustrated by this passage; Bingham is quite correct to say that any Home Secretary would su¡er public obloquy for releasing Hindley, although ‘committing political suicide’ would perhaps be more apt. This has meant, we suggest, that the position of all MLPs, some 3000, will remain the same, as any Government that changed its stance on MLPs would automatically be pilloried as those who ‘let Myra Hindley out of prison’ [6]. When one contrasts the position of MLPs with DLPs, moreover, a great irony is apparent. As was pointed out in the cited parliamentary debate in the House of Lords, MLPs di¡er greatly in terms of the nature of their crime, and some could never be said to be terribly dangerous (op. cit. cols 283^304). With the case of mercy killers, indeed, one could argue that they would even be viewed as sympathetic characters. The same could not be said of DLPs who usually have committed extremely nasty crimes. Yet the current position means that all murderers are treated the same, and are subject to a quotient of punishment that is ultimately
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politically-determined. With the recent total judicializing of the HMP process moreover (above p. 3) the ¢nal block to equalizing all life sentences has been removed, as the mandatory life sentence is now unique in this country in having executive involvement. It appears that there is no hope from Europe either; despite the intervention of the European Court of Human Rights on behalf of DLPs (Thynne v. U.K. op. cit.) and HMPs (Singh v. U.K. (1996) 1 BHRC 119: T v. U.K.: Vv. U.K. op. cit.) they have shown themselves unwilling to similarly intervene on behalf of MLPs. In Wynne v. U.K. ([1997] 19 EHRR 333) a clear distinction between DLPs and MLPs was drawn by the court. For them, the two sentences are not to be viewed as the same, as they serve di¡erent purposes, and are informed by di¡erent philosophies [7]. Essentially they saw the discretionary life sentence as a unique punitive measure tailored to the characteristics of the o¡ender, whereas the mandatory life sentence was ¢xed by law as a re£ection of the peculiar opprobrium with which our society views the murderer. Yet an examination of Western European legal systems reveals not a single jurisdiction that has an equivalent arbitrarily assigned tari¡ for the life sentence (McGeorge 1990). Even Russia, in its abolishing the death penalty as part of its e¡ort to join the Council of Europe has decided on constructing its new life sentence with a ¢xed 25-year penal period (Moscow Center for Prison Reform 1998). In an earlier article (Schone 1999) we called for more international academic research into punishment from a prison law perspective, as this enables a clearer ‘reading’ of penal policy. We echo this with our analysis of the current structure of the mandatory life sentence. Such research as there is that deals with the topic tends to do so obliquely, usually by reference to the sentencing of violent o¡enders (Henham 1993; Fitzgerald 1995). One of the di⁄culties is that as an object of study, life sentence structures is the natural preserve of criminal justice, the blending of criminology and law. As a subject it falls between public law, criminal law, and the half-discipline sentencing law, yet not being wholly subsumed under any of these headings the individuals who seek the law’s protection lack full juridical guard. This is particularly why more international work is needed, to bolster the argument that MLPs in the U.K. are in a legally unfortunate and morally unsustainable position. In summary, as lawyers challenged the extent of executive discretion in relation to life sentence prisoners here and in Europe there was a divergence between discretionary and mandatory sentences, with DLPs accumulating a panoply of positive rights in what became an entirely judicial process. MLPs by contrast, although they gained some rights, still have their tari¡s determined by the executive. Myra Hindley’s case exempli¢es the di⁄culties of law growing organically in the fashion that the law relating to life sentence prisoners has in this country, as whilst there is a murderer who has become an icon of evil through constant press damnation there is little chance of
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aggressive judicial intervention. Furthermore, the Hindley case raises fundamental issues about the rule of law and the nature of punishment in our society. In strict doctrinal terms the courts’ decisions in Hindley may have been correct. The fact is that, dress it up as you may, the indication and expectation at Hindley’s sentencing and for at least 20 years afterwards was that she would eventually be released. It should make no di¡erence that it was not communicated to her. Leaving aside the public opinion point, she is essentially being detained as a result of a historical accident, for there is no doubt that had the 30-year ‘provisional’ tari¡ been communicated to her in 1985 things would have been di¡erent, notwithstanding her 1987 confession of further murders. We argue further that the setting of a tari¡ is a sentencing exercise, despite the protestations of some members of the judiciary. It is also not enough to argue, as Lord Woolf does rather weakly, that the courts’ decision will have no e¡ect on Hindley’s eventual release date. It is clear that the two killers of Jamie Bulger will eventually be released, particularly now as their tari¡ is to be set by the Lord Chief Justice [8]. The complete judicialization of the HMP sentence is a demonstration of the dramatic impact that condemnatory comment from the judiciary can have upon the executive. Following Venables, HMPs no longer have their tari¡s determined by those whose livelihood depends upon the public’s view. This is, we argue, entirely as it should be, for it removes by one step the punishing of the individual from those who wish to wreak vengeance. If Venables demonstrates only one thing it is that hard cases do not necessarily make bad law. There is no reason why there cannot be a system with one entirely judicialized life sentence, whether mandatory or discretionary at point of imposition. In an editorial comment in the Criminal Law Review (1996, p. 609), as Pierson and Venables were wending their way through the courts, the position of the Home Secretary vis a' vis MLPs was referred to as ‘Canute-like’. This may have been an apt metaphor at the time, but as the Hindley case has progressed the ‘line in the sand’ is perhaps more ¢tting, as one detects a sense amongst the senior judiciary of ‘this far and no further’. Myra Hindley’s case is the point at which this line has been drawn, we suggest. There is a fundamental unfairness to her case as she has been e¡ectively re-sentenced, and, as Hobhouse L.J. pointed out, when the Venables case was heard in the Court of Appeal ‘‘The sentence is passed having regard to the state of a¡airs existing at the time sentence is passed’’ (1997 1 All ER 327^ 355). The concept of a tari¡ barely existed at the time Hindley was sentenced, and as we have seen Lord Woolf was profoundly uncomfortable with the notion of a ‘whole life tari¡ ’, a penal construct that post-dated Hindley’s sentencing by over two decades. There is a wider concern however. As TRS Allan (1999), a leading theorist of the rule of law points out: At the core of the liberal ideal of a government of laws, and not of men, is the conviction that the state’s interference with the liberty or property of
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individuals must be regulated by general laws, whose purpose are directed to some aspect of the common good and are not designed speci¢cally to a¡ect the circumstances of particular, identi¢able persons (p. 222).
We could hardly have a more startling representation then of the undermining of the rule of law than a penal policy that is ¢xed at a certain point as a consequence of one individual case. Furthermore, although there is vague authority in English Law for the notion that public opinion has a place in sentencing (R v. Sargeant [1974] 60 Cr.App.R. 74) [9] it is unjust and venturing on the obscene to equate tabloid press-engendered opinion with the ‘common good’. This was stated in the clearest terms by Lord Steyn in Venables: Plainly a sentencing judge must ignore a newspaper campaign designed to encourage him to increase a particular sentence. It would be an abdication of the rule of law for a judge to take into account such matters. The same reasoning must apply to the Home Secretary when he is exercising a sentencing function (op. cit. p. 147).
With the Hindley case, the hardest of hard cases, there is an abdication of the rule of law. The announcement that henceforth all HMPs will have their tari¡ decided by the judiciary, notwithstanding its impact upon the case of the Bulger killers, passed without major incident, and was even met with approval in some quarters [10]. Following this there is now no reason why the government could not announce that MLPs should likewise have their tari¡s decided by the judiciary. Should they do so, they would not only ¢nally rectify an anomaly in our legal system that is the result of nothing more than a historical accident, but would, more importantly, reassert the importance of the rule of law in our constitution.
Notes 1 p. 114 of the judgment. Referring to the media campaign to keep the killers of James Bulger in prison for life, he states ‘‘Little credit can be given to favourable responses to a campaign that the two applicants should rot ‘in jail’ for the rest of their lives, especially when it is borne in mind that those who responded may well have been unaware that, even after the penal element in their sentences had been served, their release would not be automatic. . .’’. 2 As this paper is concerned with the punishment aspect of the life sentence we shall not be examining the recall procedure. In terms of this procedure there is no real di¡erence between the various types of life sentence. See Livingstone & Owen (1999: ch. 13, 14). 3 Some confusion may arise here. The House of Lords has two constitutional functions. It is the upper chamber of the United Kingdom’s Parliament, and is also the highest court in the land. It should be clear from the context to which we are referring.
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4
cf.http://www.mori.com/polls/1997/hindley.htm. The upshot of the poll was that two-thirds disagreed with the view that they should respect the Home Secretary’s decision if he decided to release her. 5 Even the most cursory of searches throws up a series of articles in the British press that re£ect this. In particular there was considerable concern expressed about the criminal justice system. Two cases in particular seemed to inspire adverse commentary. One was the dropping of charges against a couple suspected of cruetly against their child, who later died. They had both remained silent in the face of police questioning. See ‘‘Child’s death exposes legal £aw’’ (The Guardian: 16 January 1993). In July of that year Joseph Elliott was acquitted of the murder of Robert Osborne. Osborne was stabbed by Elliott when he confronted him for committing criminal damage, and Elliott successfully pleaded self-defence at his trial. See ‘‘Vigilante’s stabbing prompts self-defence study’’ (The Guardian: 15 July 1993). There were also wider concerns expressed about a perceived increase in vigilantism and ‘DIY justice’ (see the article by Ian McKenzie, a former police o⁄cer in The Guardian on the same day). In addition cases like that of Beverley Allitt, convicted in May 1993 of the murder of children in her care, caused considerable concern at the state of statutory provisions for the supervision of the mentally ill. See ‘‘Mentally ill people kill 32 in a year, study ¢nds’’ (The Independent: 14 August 1993). 6 This is illustrated by remarks made by Lord Longford in the cited debate in the House of Lords: ‘‘I am not surprised that people in this house and elsewhere say to me, ‘I agree with you, my dear chap. Of course after all these years she ought to come out. But you can’t imagine any Home Secretary having the guts to let her out, can you? Think what would happen to him. Think what the tabloids would do to him.’ This is what many people say to me about tabloid pressure’’ (op. cit. col 723). 7 Wynne is still good law, despite the court in Strasbourg ¢nding that the executive’s setting of the tari¡ in HMP cases to be a breach of Article 51 and 54. T v. U.K.: R V. v. U.K. (above p. 3). 8 In his statement to the House of Commons the Home Secretary stated that the tari¡ in the particular case of Robert Thompson and Jon Venables would be referred to the Lord Chief Justice for determination. 9 In this case Lawton LJ remarked, whilst outlining the principles that underlie sentencing ‘‘There is, however, another aspect of retribution which is frequently overlooked: it is that society, through the courts, must show its abhorrence of particular types of crimes, and the only way in which the courts can show this is by the sentences they pass. The courts do not have to re£ect public opinion. On the other hand the courts must not disregard it. Perhaps the main duty of the court is to lead public opinion’’ (p. 77). 10 See ‘‘Mr Straw, it’s time to listen to the courts’’ (The Times: 11 April 2000).
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