Report on Mandatory Sentences - Law Reform Commission

2.40 Regarding Article 7, 110 the second applicant submitted that the trial judge had recommended a
minimum term of 25 years but had been overruled by the Secretary of State in 1988. This was
incompatible with Article 6 of the Convention and should have played no part in the sentencing process.
The High Court review, which confirmed the whole life order, thus imposed a more severe penalty than
the sentence which had been passed at the time of the offence. The applicant also asserted that it was
clear that, in the High Court review, Schedule 21 of the Criminal Justice Act 2003 (which sets out the
means by which a minimum term is to be calculated) had been relied on, even though it established a
harsher sentencing regime than that which was applicable when the applicant had been convicted. In
order to be compatible with Article 7, the applicant asserted that Schedule 22 of the Criminal Justice Act
2003, which provides for the High Court review, should have prohibited the imposition of a minimum term
that was higher than the trial judge’s recommendation rather than that imposed by the Secretary of State.
2.41 The third applicant conceded that the whole life term was technically available in 1996 when his
offences were committed. However, it was very exceptional for whole life orders to be imposed at the
time. The whole life order for the murder of two or more persons involving premeditation and/or sexual or
sadistic conduct had effectively been introduced by Schedule 21. The High Court had specifically
rejected the trial judge’s recommendation of 30 years because of Schedule 21. Therefore, he asserted
that he too had been sentenced under a harsher statutory framework than existed at the time of the
offences.
2.42 The Court observed that the setting of a minimum term was a sentencing exercise and thus
attracted the protection of Article 7. However, the Court indicated that it was unable to accept that the
process by which the second and third applicants’ current whole life orders were imposed had infringed
Article 7. First, paragraph 3(1)(a) of Schedule 22 expressly protected against the imposition of a longer
minimum term than was initially imposed. Second, there was no evidence that, in practice, this statutory
protection had been circumvented by the need to consider the principles in Schedule 21. Schedule 21
might well reflect a stricter sentencing regime than was previously applied for the crime of murder and, if it
were determinative of the minimum term to be imposed for offences committed prior to its enactment,
might well have violated Article 7. However, this was not the case. In conducting its review under
Schedule 22, the High Court was to have regard to both Schedule 21 and the previous recommendations
made in respect of a life sentence prisoner by the trial judge and the Lord Chief Justice. The Court
indicated that there was nothing objectionable in directing the High Court in this way.
2.43 In a joint partly dissenting opinion, however, three of the judges concluded that there had been a
procedural infringement of Article 3 of the European Convention on Human Rights. This was by reason
of the absence of some mechanism that would remove the hopelessness inherent in a life sentence, from
which there was no possibility of release while the prisoner was still well enough to have any sort of life
outside prison.
(b)
Northern Ireland
2.44 It has been noted that until the enactment of the Homicide Act 1957 in England and Wales, which
did not extend to Northern Ireland, the law on murder had been the same in Northern Ireland as in
England and Wales. 111 As there were few murder cases, there was little public demand for the law in
Northern Ireland to be changed along the lines of the 1957 Act. 112 However, this changed in the 1960s
when there were two hangings in circumstances which, it has been asserted, would not have resulted in
the death penalty had the offences been committed in England. 113
110
111
112
113
Article 7 ECHR: No one shall be held guilty of any criminal offence on account of any act or omission which
did not constitute a criminal offence under national or international law at the time when it was committed. Nor
shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was
committed.
Osborough “Homicide and Criminal Responsibility Bill (NI) 1963” (1965) 16 NILQ 73 at 73.
Ibid.
Ibid.
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