In the Media

Give judges discretion in murder sentencing | Simon Creighton

PUBLISHED December 7, 2011

Mandatory life sentences erode the judiciary's independence and fail to take account of the individual circumstances of a case

The report of the Homicide Review Advisory Group recommending that mandatory life sentences should be abolished echoes the findings of a similar report commissioned by the Prison Reform Trust nearly 20 years ago. In both cases, panels of leading academics, practitioners and judges have highlighted the iniquity of a system that requires the imposition of a mandatory life sentence following all murder convictions, whatever the circumstances.

The lack of public understanding about the system of sentencing and release in such cases has also been highlighted. However, despite these concerns, the growing trend has been to extend the use of mandatory life sentences, even in cases falling short of murder. The previous Labour government experimented with automatic life sentences for second serious offences committed between 1997-2005, and Ken Clarke has plans to resurrect a similar mandatory sentence in his latest sentencing bill.

The particular problem with this sentence following a conviction for murder ? as Simon Jenkins pointed out ? is that it fails to recognise the wide variety of circumstances in which a murder might be committed. As the report notes, a conviction for murder following a mercy killing will result in the imposition of the same sentence as, for example, a premeditated murder committed for financial gain.

The case of Frances Inglis graphically illustrates the consequences of this outdated law. Frances, known as Frankie to her family, was convicted of murdering her son by injecting him with heroin after he had suffered serious brain injuries falling from an ambulance. She retains the support of her family, including her surviving children and their father. At her appeal against sentence, Lord Judge, the lord chief justice, fully accepted that this was a case of a genuine mercy killing, motivated by her desire to end her son's suffering. He commented that it was "far removed from the ordinary case of murder". However, he noted that he was unable to interfere with the imposition of the life sentence, as it is prescribed by law.

The concept of mercy killing as falling within the wider definition of murder has been a feature of the debates on the mandatory life sentence for many years. In 1976 the criminal law revision committee suggested that mercy killing should be a specific offence attracting a maximum penalty of two years imprisonment and in 1989, a House of Lords select committee also put forward the case for mercy killing to be a specific offence. The most recent report on the subject by the law commission in 2006 was less clear, suggesting that a wider debate was needed to establish whether the motive of compassion could ever be a defence to murder.

The obvious solution to this problem, while the wider debate is conducted, is to allow judicial discretion in the sentencing process by removing the mandatory sentencing regime. Although the philosophical principle behind mandatory sentences may be borne out of an egalitarian approach to sentencing ? to punish the crime not the individual ? the political imperative is invariably a response to the "soft on crime" mantra. The outcome is always to increase in overall sentence lengths, an inevitable outcome when the mandatory terms must encompass such a wide range of individual circumstances. The role of the judiciary in the criminal justice process should be to provide the appropriate balance between two interests that will always create conflict: the need to protect citizens from crime and the possible encroachment on civil liberties by governments seeking to prosecute crime. The removal of judicial discretion erodes the concept of a judiciary that is truly independent from government and undermines its ability to perform this balancing act.

Frankie Inglis remains in prison. Her future release will be dependent upon her successfully negotiating the Kafkaesque workings, first of the prison system and then the Parole Board. When she is eventually released, she will remain on a licence for the remainder of her life, making her liable to recall to prison at any time, even if she commits no further crime. It is noteworthy that these restrictions will be in place on a person assessed by Lord Judge in the following terms: "There is no doubt about the genuineness of her belief that her actions in preparing for and eventually killing [her son] represented an act of mercy or that the grief consequent on the loss of her son is undiminished by her responsibility for his death." © 2011 Guardian News and Media Limited or its affiliated companies. All rights reserved. | Use of this content is subject to our Terms & Conditions | More Feeds