Schedule 22 : Mandatory Life Sentences: Transitional Cases
840.This Schedule deals with transitional matters. In particular it sets out arrangements to deal with:
convicted murderers serving minimum terms determined by the Secretary of State;
those already sentenced for murder but awaiting the determination of a minimum term;
minimum terms determined on or after commencement of section 269 in respect of offences committed before that date.
Paragraph 1
841.Paragraph 1 contains various definitions. These are self-explanatory save that it should be noted that the definition of “mandatory life sentence” excludes juveniles sentenced to mandatory detention during Her Majesty’s Pleasure. This is because minimum terms for juveniles convicted of murder that were fixed by the Secretary of State are already subject to a review by the Lord Chief Justice established following the ruling of the European Court of Human Rights in the case of V v UK (Judgement of ECHR of 16th December 1999).
Existing prisoners notified by Secretary of State: Paragraphs 2, 3 and 4
842.These paragraphs deal with prisoners who are already serving a life sentence subject to a minimum term, or whole life term, which has been fixed by the Secretary of State. In accordance with the ruling in the case of Anderson, and in seeking to afford the prisoners their rights under Article 6 of the Convention, this provision offers these prisoners an opportunity to apply to have their minimum term re-set by the High Court. Having reviewed a case, the High Court must reconsider the existing minimum term or whole life term. In so doing the court can order a period that is equal to that which was set by the Secretary of State or it may reduce the minimum term. It cannot however, increase the minimum term fixed by the Secretary of State.
843.Some prisoners serving life sentences will remain in prison although the minimum term fixed by the Secretary of State has expired. This group is excluded from the right to apply to the High Court, but paragraph 3(3) enables them to have their cases considered by the Parole Board.
844.Not all prisoners will necessarily wish to apply for a new minimum term. In this case the minimum term fixed by the Secretary of State in their case will remain effective.
845.Paragraph 4 sets out in general terms the matters the court should have regard to when determining the appropriate minimum term in any individual case. In addition to the consideration of seriousness and time spent on remand required in every case under section 269, in these transitional cases the existing notified minimum term or whole life term will also be relevant. Paragraph 4(2) requires the reviewing court, when considering the seriousness of the offence, to have regard to both the principles set out in Schedule 21 and any judicial recommendations, made shortly after the original conviction, as to the appropriate minimum term to be served by the prisoner.
Existing prisoners not notified by Secretary of State: Paragraphs 5 to 8
846.Since the judgement in Anderson ([2002] UKHL 46) the Home Secretary has not determined any minimum terms. Accordingly, there are a number of cases in which the prisoner has been found guilty of murder and sentenced to the mandatory life sentence but still awaits the determination of a minimum term. Paragraph 6 creates a duty on the part of the Home Secretary to refer these cases to the High Court for the determination of a minimum term under the provision at section 269.
847.In keeping with the provision for future cases, the reviewing court must take into guidelines account the new statutory principles and any relevant guidelines when considering the seriousness of the case for the purpose of determining the minimum term. Any recommendations made by either the Lord Chief Justice or the trial judge also need to be taken into account by the High Court when determining the minimum term.
848.To ensure compatibility with Article 7 of the Convention, paragraph 8(a) prevents the High Court from determining the minimum term at a level greater than that which would have been imposed under the practice of the Secretary of State before the Anderson judgement. Paragraph 8(b) also makes it clear that no whole life term can be imposed unless such a term would, in the court’s opinion, have been imposed by the Secretary of State.
Sentences passed on or after commencement date in respect of offences committed before that date: Paragraphs 9 and 10
849.Some trials for murder after the commencement of these provisions will concern murders that were committed before commencement. Paragraphs 9 and 10 deal with such cases. The need to avoid imposing a sentence that is greater than that which would have been available at the time of the commission of the offence applies here as much as it does to the cases covered in the preceding paragraphs. Accordingly, paragraph 10 imposes a restriction equivalent to that in paragraph 8.
Paragraph 11
850.Paragraph 11 provides for any review or determination of a minimum term under either paragraphs 3 or 6 by the High Court to be undertaken by a single judge on the papers.
Paragraphs 12 to 18
851.Paragraph 12 requires a court reviewing an existing minimum term to give reasons for the order it makes and if the order specifies a minimum term that is shorter than that imposed by the Secretary of State to explain its reasons for doing so. Where a court determines the minimum term in the case of a convicted prisoner who has not been given a minimum term by the Home Secretary, paragraph 13 brings the duty to give reasons into line with that under paragraph 12.
852.Paragraph 14 extends rights of appeal to the Court of Appeal and the House of Lords, if appropriate, to prisoners who have either had their minimum term reviewed or determined by the High Court under these transitional provisions. Paragraph 15 extends section 36 of the Criminal Justice Act 1988 to these transitional arrangements and provides for a means by which the Attorney General can challenge a minimum term which he considers unduly lenient.
853.Paragraph 16 ensures that the early release provisions apply consistently to both a minimum term in arising from a review of an existing minimum term by the High Court and those minimum terms fixed by the Home Secretary that remain effective if no application is made. Paragraph 17 ensures that transferred prisoners may be dealt with under these transitional arrangements if necessary.
