Report on Mandatory Sentences - Law Reform Commission

y law and applicable in all cases where persons under the age of 18 years were convicted of murder. 72
The Court stated, however, that the decisive issue was whether the nature and purpose of the sentence
were such as to require the lawfulness of the detention to be periodically reviewed in accordance with
Article 5(4). 73 The Court considered that an indeterminate term of detention for a convicted young
person, which might be as long as that person’s life, could only be justified by considerations based on
the need to protect the public. 74 The Court thus concluded that the applicant’s sentence, after the
expiration of his tariff, was more comparable to a discretionary life sentence. 75 The decisive ground for
the applicant’s detention had been and continued to be his dangerousness to society. 76 As this was a
characteristic which could change over time, the Court held that the applicant was entitled to have his
continued detention periodically reviewed by a court-like body in accordance with Article 5(4). 77
2.22 As a result of this decision, section 28 of the Crime (Sentences) Act 1997 extended to juvenile
offenders sentenced to detention at Her Majesty’s Pleasure, the same right as offenders sentenced to
discretionary life imprisonment, to have the preventive part of their sentences periodically reviewed by the
Parole Board. 78
2.23 The European Court of Human Rights also began to question the role of the Home Secretary in
setting the tariff for sentences such as detention at Her Majesty’s Pleasure. 79 In V and T v United
Kingdom, 80 the Court ruled that the fixing of a tariff was a sentencing exercise and that the applicants
were thus entitled to the safeguards of Article 6(1) of the European Convention on Human Rights, 81 which
required that the determination of civil rights and obligations be conducted by an “independent and
impartial tribunal”. 82 As the Home Secretary could not be considered “independent” of the Executive, the
Court found that there had been a violation of Article 6(1). 83
2.24 As a result of this decision, the Home Secretary relinquished his power to set the tariff for
sentences of detention at Her Majesty’s Pleasure and this is now set by the trial judge. 84 The Lord Chief
Justice issued a Practice Direction 85 setting out the various factors which judges should take into account
when setting tariff periods for murder by offenders of all ages. It is interesting to note, however, that the
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Ibid at paragraph 51.
Hussain v United Kingdom (1996) 22 EHRR 1 at paragraph 52.
Ibid at paragraph 53.
Ibid at paragraph 54.
Ibid.
Ibid.
Emmerson, Ashworth and Macdonald, eds, Human Rights and Criminal Justice (Thomson, Sweet & Maxwell,
2007) at 679.
McCutcheon and Coffey “Life Sentences in Ireland and the European Convention on Human Rights (2006)
Irish Yearbook of International Law 101 at 105.
V and T v United Kingdom (2000) 30 EHRR 121.
Ibid at paragraph 111.
Ibid at paragraph 114.
Ibid.
Emmerson, Ashworth and Macdonald, eds, Human Rights and Criminal Justice (Thomson, Sweet & Maxwell,
2007) at 680.
Practice Statement (Life Sentences for Murder) [2002] Cr App R 457. This has since been replaced by
section 269 of the Criminal Justice Act 2003. Schedule 22 to the 2003 Act contains transitional provisions for
those serving mandatory life sentences whose offences were committed before the Act came into force.
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