Report on Mandatory Sentences - Law Reform Commission

Home Secretary retains a duty to keep the minimum term of every child detained during Her Majesty’s
Pleasure under review, and may still use the prerogative of mercy to shorten it. 86
2.25 The distinction between discretionary life sentences and mandatory life sentences finally
collapsed in Stafford v United Kingdom 87 , when the European Court of Human Rights assimilated the
various regimes applicable to discretionary life sentences, mandatory life sentences and sentences of
detention during Her Majesty’s Pleasure. 88 The applicant had received a mandatory life sentence for
murder. He had been subsequently released on licence and this was revoked when he was convicted of
a number of fraud offences. Having served his sentence for the fraud offences, the Parole Board
recommended that the applicant be released on licence but this was rejected by the Secretary of State on
the ground that there was a risk that the applicant would commit further fraud offences.
2.26 The applicant contended that his continued detention was in breach of Article 5(1). 89 In this
regard, he argued that it was arbitrary to justify indefinite imprisonment by reference to a risk of future
non-violent offending, which involved no physical harm to others and bore no relationship to the criminal
conduct which had resulted in the mandatory life sentence. 90 For its part, the Government contended that
the mandatory life sentence for murder satisfied Article 5(1) and continued to provide a lawful basis for
the applicant’s detention. 91 It argued that the mandatory life sentence could be distinguished from the
discretionary life sentence as it was imposed as punishment for the seriousness of the offence and was
not governed by factors, such as risk and dangerousness, which could change over time. 92 The applicant
further contended that as the basis for his continued detention was the risk of future offending, he was
entitled to have his detention reviewed under Article 5(4). 93 He argued that, since Wynne, the courts in
the United Kingdom had so altered their approach to, and understanding of, the mandatory life sentence,
that it was no longer possible to argue that the requirements of Article 5(4) were satisfied by the original
trial. 94 The Government, on the other hand, insisted that where mandatory life sentences were
concerned, the requirements of Article 5(4) were met by the original trial and appeal proceedings and that
no new issues of lawfulness could arise requiring review. 95
2.27 The Court held that there was no causal connection between the risk of future non-violent
offending and the original mandatory life sentence for murder. 96 The applicant’s re-detention was thus in
breach of Article 5(1). The Court referred to legal developments in the United Kingdom and concluded
that it could no longer be maintained that where mandatory life sentences were concerned, the
requirements of Article 5(4) were satisfied by the original trial and appeal proceedings. 97 Thus, detention
beyond the expiry of the tariff period could only be justified by considerations of risk and dangerousness
associated with the objectives of the original sentence for murder. 98 As these elements could change
over time, the Court held that the applicant was entitled to have his detention reviewed by a court-like
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R (Smith) v Secretary of State for the Home Department [2006] 1 AC 159.
Stafford v United Kingdom (2002) 35 EHRR 32.
McCutcheon and Coffey “Life Sentences in Ireland and the European Convention on Human Rights” (2006)
Irish Yearbook of International Law 101 at 105.
Stafford v United Kingdom (2002) 35 EHRR 32 at paragraph 57.
Ibid at paragraph 58.
Ibid at paragraph 59.
Ibid at paragraph 59.
Ibid at paragraph 85.
Ibid at paragraph 85.
Ibid at paragraph 86.
Ibid at paragraph 81.
Ibid at paragraph 87.
Ibid.
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