England and Wales
In England and Wales the mandatory death penalty for murder was abolished in the Homicide Act 1957, this piece of legislation created a two-tier system for murders, retaining the death penalty only for those murders considered especially heinous. (The Offences Against the Person (Amendment) Act 1992 in Jamaica followed the template of this Act in its attempt to limit the mandatory death penalty only for the most heinous murders, however this was struck down as unconstitutional in Lambert Watson v The Queen ( 1 AC 400) as any mandatory death penalty, even if reserved for certain types of murder, was held to amount to inhuman or degrading treatment or punishment).
In England and Wales, since the final abolition of the death penalty for murder in 1965, the mandatory sentence for murder has been life imprisonment.
Under an indeterminate life sentence, power regarding sentence length, review and release is vested in the courts and the Parole Board. Since the Criminal Justice Act 2003, the judge when passing a life sentence sets the minimum term a prisoner must spend in prison before he or she becomes eligible for parole, these minimum periods begin at 15 years (see the Schedule to the Act for the guidance provided on minimum terms).
Once the minimum term has been reached, prisoners serving a life sentence are eligible for release on licence following successful determination of their case before the Parole Board. Release on licence involves supervision by the Probation Service, and persons on licence can have their licence revoked and be returned to prison if they are judged to be a risk to the public.
Whole Life Sentences
Recently in England and Wales, there has been particular controversy regarding the use of whole life sentences (see Hood and Hoyle, 2015, for a discussion on this).
Section 269 of the Criminal Justice Act 2003 provides that in determining a minimum term for a life sentence for murder, a judge should consider whether the offender has previously been convicted of a murder. In such a case, the sentence normally falls within the ambit of a whole life term. Whole life sentences are only subject to the Secretary of State’s power to release life sentenced prisoners on compassionate grounds, found at section 30 of the Crime (Sentences) Act 1997.
The English Court of Appeal has consistently ruled in favour of the imposition of whole life sentences, however the European Court of Human Rights rulings have demonstrated the difficulty the sentence posed under human rights instruments (Bild, 2015). In Vintner v the United Kingdom ((2013) 34 BHRC 605) the European Court of Human Rights held that the whole life sentence in England and Wales was, for all practical purposes, irreducible, due to the very narrow range of circumstances covered by the Secretary of State’s power to release persons serving life sentences. In this case, the Court held that whole life sentences therefore breached Article 3 of the European Convention on Human Rights (ECHR) which holds that ‘No one shall be subjected to torture or to inhuman and degrading treatment or punishment.’
However, in 2015, in the case of Arthur Hutchinson, the European Court of Human Rights reversed its earlier ruling and held that the power to release life sentenced prisoners on compassionate grounds did provide sufficient safeguard and was not in breach of Article 3 of the ECHR (Alan Travis, ‘European judges uphold British courts’ right to impose “whole life” tariffs’, Guardian, 3 February 2015).
There was a mandatory death penalty for murder in Ireland until 1964. As with Trinidad and Tobago and Barbados, this had been imported from the English common law, in the case of Ireland through the 1861 Offences Against the Person Act. The Criminal Justice Act 1964 substituted the sentence of penal servitude for life for the death sentence for most murders, and this was later replaced with a life sentence for all murders in the Criminal Justice Act 1990. The life sentence is occasionally but rarely used for other serious offences. Life sentences in Ireland are of indeterminate length.
In Ireland, the release process for persons sentenced to a life sentence involves consideration of cases by the Parole Board, which then pass recommendations to the Minister for Justice. The Minister makes decisions on early release under the Criminal Justice Act 1960. Officially, prisoners serving a life sentence become eligible for parole after seven years, although recently this figure has generally been revised upwards (Griffin 2015). The parole process in Ireland is very informal, and discretionary; for example, the Parole Board is not a statutory body and merely makes recommendations to the Minister.
Griffin found that the average time spent in prison by a prisoner serving a life sentence has increased considerably, from 7.5 years from 1975 to 1984, to 17 years for the period 2004 to 2009. In 2012, the average time served reached 22 years. Between 2001 and 2013, the population of prisoners serving a life sentence increased by 130%.
African Commonwealth Countries
The mandatory death penalty for murder is often described as a remnant of colonialism in countries that were once under the control of the British Empire. The pattern over the past number of years has seen the mandatory death penalty in these countries abolished, and replaced with discretionary systems which can take into account mitigating factors.
This movement is evident in many African countries. Following developments in the Caribbean regarding the mandatory death penalty, these decisions are now being drawn upon in legal arguments about the constitutionality of the mandatory sentence. The similarity of the post-independence constitutions in all these countries has made drawing on legal arguments from elsewhere and across the Commonwealth world easier and more effective (Novak, 2012).
The courts in Malawi, Uganda and Kenya have all ruled that mandatory death sentences are unconstitutional, and have implemented reform through abolition of this element of their criminal law. African countries are therefore following an:
‘emerging global consensus that not all murders are equally heinous and deserving of death, that the right to a fair trial includes a sentencing hearing, and that a sentence disproportionate to a crime is cruel degrading punishment’
In Malawi, the Penal Code was amended following the 2007 decision in Kafantayeni which struck down the mandatory death penalty for murder. Since then fewer death sentences have been handed down for murder, and discretionary sentencing is now in place (Advocates for Human Rights et al, 2014). The Death Penalty Project report that the resentencing of prisoners on death row following the abolition of the mandatory death penalty is progressing slowly. However, there is also evidence that mitigating factors are being considered at the resentencing hearings, and the Death Penalty Project references two cases of prisoners resentenced to 24 years imprisonment (calculated from date of arrest).
In Uganda, following the 2009 case of Kigula, the mandatory death penalty was struck down as unconstitutional; the Court also held that spending more than three years on death was cruel and inhuman punishment. However, Uganda maintains the most death-eligible crimes within the East African region despite the recent reform on the mandatory death penalty for murder (Penal Reform International, 2012). Penal Reform International found that the alternative sentence to the death penalty was clouded by legal uncertainty. Although the Uganda Prisons Act defines ‘life’ as 20 years, a recent Supreme Court case found that life meant ‘natural life’. In addition to this conflict, there is a growing tendency to hand down very lengthy sentences to persons convicted of murder, such as a recent sentence of 70 years.
In Kenya, Section 204 of the Penal Code holds that ‘Any person convicted of murder shall be sentenced to death.’ Although there has been no statutory reform of the Penal Code following the abolition of the mandatory death penalty in the 2010 case of Mutiso, this section has been interpreted expansively to hold that death is just one sentence for persons convicted of murder. Until recently Kenya still had the highest number of people on death row in East Africa, despite the mass commutation of 4,000 death row inmates in 2009 (Penal Reform International, 2012).
However, on 24 October 2016, the Kenyan president commuted the death sentences of all 2,747 prisoners on death row in the country. All the death sentences were commuted to life sentences.
In Kenya, the alternative sentence to the death penalty is life imprisonment without the possibility of parole.
In Uganda and Kenya, there is a rapidly growing population of prisoners serving a life sentence. Penal Reform International (2012) suggests that this is due to the very large number of crimes which attract a life sentence, crimes far removed from the gravity of murder such as: forgery, counterfeiting and rioting. The use of life sentences for these less serious crimes presents serious challenges to questions of proportionality between the crime and the punishment. In addition, the poor conditions in which life sentenced and death row prisoners are held compound the difficulties with the use of life sentences in these two countries.