Schedule 21: Determination of minimum term in relation to mandatory life sentences
828.This Schedule sets out the principles which a sentencing court must have regard to when assessing the seriousness of all cases of murder in order to determine the appropriate minimum term to be imposed.
829.Paragraph 1 is definitional and is largely self-explanatory. Paragraphs 2 and 3 explain what is meant by racial or religious aggravation or aggravation by sexual orientation.
830.Paragraphs 4, 5, 6 and 7 set out the starting points that a court should adopt when determining a minimum term. The starting point may be adjusted in accordance with the presence of aggravating or mitigating factors in order to arrive at the finally determined minimum term.
831.This paragraph deals with the small numbers of exceptionally serious cases in which the court should normally start by considering a whole life term, and provides a number of examples of cases that should normally require consideration of a whole life order. The list is not intended to be exhaustive, but indicates that murders that fall within the given categories will normally require a whole life minimum term. However, in an individual case it could be appropriate for a court to commence the determination of the appropriate minimum term with the whole life starting point but, upon further consideration of the relevant circumstances of the case, ultimately decide that a whole life term is not required. In keeping with sentencing practice generally, it is entirely a matter for the sentencing court to determine the facts upon which it is to sentence.
832.Paragraph 5 deals with the murders which are not as serious as those that fall within paragraph 4 but are nevertheless particularly grave and require a starting point for determining the minimum term of 30 years. Like paragraph 4 this paragraph provides a non-exhaustive list of examples of cases that should normally require consideration of a 30 year starting point. This starting point may be adjusted up, or down, in accordance with the presence of aggravating or mitigating factors. A murder falling within the paragraph 5(2), may nevertheless be one that the court decides is exceptionally serious and more appropriately dealt with under paragraph 4(1) rather than 5(1).
833.Paragraph 5(2)(h) allows a court to adopt a 30 year starting point for an offender who is 18, 19 or 20 years old and, under current provision, subject to a sentence of mandatory custody for life.
Paragraphs 6 and 7
834.The numbers of murders falling within paragraphs 4 and 5 will form a relatively small although significant proportion of all the murders that come before the courts. The majority of murders will therefore attract a starting point of 15 years under paragraph 6. Paragraph 7 provides a separate starting point of 12 years for offenders aged under 18 at the time the offence was committed.
835.Once a starting point has been chosen, the court will then go on to consider factors that either increase or reduce the seriousness of the murder and make the necessary adjustments to arrive at the final minimum term. There is no restriction on the degree of adjustment that a court can make in consideration of aggravating or mitigating factors, as paragraph 8 explains. Although, therefore, there may be a few very exceptional cases in which starting points will be increased or decreased very substantially, it is expected that the vast majority of cases will tend to attract minimum terms that reflect the categorisation of cases set out in paragraphs 4 to 7.
836.Paragraph 8 makes it clear that aggravating or mitigating factors cannot be double counted. If a murder, for example, fell within paragraph 5(2) because it was the murder of a police officer, the minimum term could not be increased beyond the starting point of 30 years on the basis that the case was aggravated by facts falling within paragraph 10 (f).
837.The list of factors that are to be regarded as aggravating set out at paragraph 10 is non-exhaustive and is provided by way of example. These examples are additional to those set out at paragraphs 4(2) and 5(2) so that any factor that does not determine the relevant starting point can be taken account under paragraph 8. Planning and premeditation requires inclusion at 10(a) because a court will want to take into account premeditation and planning of any degree and reliance on the reference at paragraph 4(2)(a)(i) would only include facts that amounted to a substantial degree of premeditation or planning. Other matters are included in paragraph 10, for example paragraphs (c) and (f), because they embrace but have a greater scope than facts that would fall within paragraphs 4(2) and 5(2). Paragraph 10 (g) covers circumstances in which the court is satisfied that, in those rare cases of convictions for murder in the absence of a body, the offender is adding to the grief of a victim’s family by deliberately preventing the recovery of the body.
838.Paragraph 11 sets out a number of factors that may be taken account of by the sentencing court as mitigating factors. Once again this list is not exhaustive and provides examples only. The list covers most of the mitigating factors that are likely to arise in cases of murder and is largely self-explanatory. As regards paragraph 11(a), it may not be commonly appreciated that the offence of murder does not require an intention to kill. In the case of offenders who are considerably younger than 18, paragraph 11(g) may have a very significant effect on the final determination of the minimum term.
839.Paragraph 12 makes it clear that nothing in these principles affects the general provisions in the Act on the effect of previous convictions, offending while on bail and pleas of guilty.