Mandatory life sentences – role of deterrence – young offenders
By James Wood QC
The Court of Appeal has ruled that the role of deterrence as a relevant factor in the determination of the minimum term to be served when imposing a mandatory or discretionary life sentence, should in due course be considered in a case or series of cases in which the issue arises directly, with the Attorney General invited to intervene (see R v Williams at para 42).
In Williams and others leave had been granted to appeal sentence on the basis that the trial judge had referred to deterrence in his sentencing remarks when fixing the minimum terms for three 16 year olds convicted of involvement in a gang related murder by stabbing, when imposing minimum terms of 20 and 18 years. In the lead up to the hearing Flaux LJ granted permission for the Howard League for Prison Reform to intervene and make submissions on the appropriateness of deterrence as a sentencing factor for children in the fixing of the minimum term.
In a gathering of Doughty Street silks, Edward Fitzgerald QC, leading Pippa Woodrow, was instructed by the League, the author for Williams, and Isabella Forshall QC for Nkonke. In indicating they were proposing to reduce somewhat the minimum terms imposed, the court stated in argument it did not consider itself a sufficiently strongly constituted court to determine the issue of deterrence, but that that issue should in due course be considered by a 5 person court, specially convened for consideration of the role of deterrence. In the event the court reduced the minimum terms imposed to 18 and 16 years. In written arguments Counsel for the appellants and the League contended “that: (i) there was strong scientific evidence that children have cognitive developmental deficits in relation to the type of consequential reasoning necessary for deterrence to be effective; (ii) there is no consistent evidence that increasing sentence length effectively deters other children from committing like offences; (iii) increasing a child's sentence is without purpose, can be harmful and may be arbitrary and unlawful; (iv) deterrence as a legitimate factor in the sentencing of children is not mandated by statute.” (per para 40). In other arguments to be advanced in the Grounds, it was noted that:
- Deterrence is expressly excluded as a specific sentencing criteria in sentences fixed by law, (see s142(2)(b) Criminal Justice Act 2003 in all cases (adults and juveniles);
- Mandatory life sentences are excluded by a footnote in the Sentencing Council’s Guidance on sentencing children, which otherwise suggests deterrence can be a proper sentencing factor;
- Deterrence finds no place in the aggravating or mitigating feature identified in Schedule 21 CJA 2003 for the fixing of the minimum term;
- Neither s.37(1) Crime and Disorder Act 1998 and s 44(1) Children and Young Persons Act 1933 (the sentencing framework for children) refers to deterrence as a suitable principle for sentencing in connection with children; and
- The yet to be implemented s142A CJA 2003 concerning sentencing of children, does not refer to deterrence at all.
The Howard League made detailed submissions on the international position, in which it appears the UK remains somewhat out of kilter with much of the rest of the western world. Dr Laura Janes of the League remains committed to identifying suitable future cases for consideration of this issue by the courts.
In declining a renewed application for leave to appeal conviction by Williams the court gave some guidance on the extent and ambit of s76(2) of the Criminal Justice and Immigration Act 2008, as to when steps can be taken to protect property from theft. It effectively ruled that recovery of already stolen property can never justify the use of force in its recovery, once the offence of robbery and/or theft has been completed, and that in the circumstances s3 of the CLA 1967 was not apt to cover recovery of property.
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