Theresa May proposes a mandatory whole life tariff for anyone who murders a police officer.
It made a good headline, and enabled her to get through her annual speech to the Police Federation without the ritual debagging normally given to Home Secretaries at these rather boisterous occasions. One does wonder why, if her idea is actually going to be introduced, the proposal was announced at the Federation conference instead of being included in a notably thin Queen’s speech last week.
It would be very unkind to think that it was done solely so that the Right Honourable lady could get polite applause from an otherwise unsympathetic audience. One must assume that it is a serious proposal and examine it on its merits.
Murdering a police officer is obviously an extremely grave crime. But a law that anyone guilty of it should never be released under any circumstances does pose a lot of difficult questions.
One thing that is sometimes misunderstood is that when a judge sets a “minimum term” to be served as part of a life sentence, it does not mean that the prisoner is necessarily released once the term has been served. They still have to satisfy the Parole Board that they are fit for release without danger, and if they fail – as they often do – they remain in prison. Even if they are released they remain on licence and can be – and often are – recalled to prison.
At present, under Schedule 21 of the Criminal Justice Act 2003 the starting point for the sentence of the murderer of a police or prison officer in the execution of his duty is a 30 year minimum custodial term. If there are aggravating features such as planning and premeditation this can become a whole life term. But Mrs May is proposing something very different: a mandatory whole life term that removes all discretion from sentencing judges.
The 1957 Homicide Act was the last attempt to define categories of murder in this way. Capital murders, for which the death penalty was mandatory, were defined as murders of police or prison officers acting in the execution of their duty, as well as murders in the course of theft, murders by shooting or explosion and murders in the course or evading arrest or attempting to escape. A further complex provision covered murder by joint enterprise, and yet another dealt with multiple murderers.
This part of the Act failed dismally, not least in the case of Ruth Ellis, who was guilty of capital murder because she shot her cruel and abusive lover, whilst far worse murderers escaped the gallows because they were stranglers, poisoners or stabbers.
One obvious problem is that it is unclear whether Mrs May’s whole life tariff is to apply to police officers murdered at any time, or only when the murder relates to their police duties. What of the man who murders his police officer wife out of sexual jealousy? One assumes, as her murder has nothing to do with her job, that the mandatory tariff might not apply to him. That would follow the scheme of the 1957 Act, where to be a capital murder it had to be be of an officer “in the execution of his duty”. But what if he murdered her whilst she was on duty: would that make a difference?
If it is only to apply to murdering a police officer in connection with his or her duties, will the murderer have to know that he is killing a police officer? What if someone deliberately runs over an undercover officer thinking he is “just” a member of the public? My guess is that it probably would apply, although the murderer would be no more culpable than if he had murdered an “ordinary” person.
And is it to apply to all police murderers, or just to adults? It would be unprecedented to impose a whole life tariff on a child, so most teenage murderers would probably escape. This might of course lead to anomalies. Say a 17 year old and an 18 year old together stab and kill a policeman. The 17 year old would eventually be released, but the 18 year old would not. But what if the idea was that of the cold blooded 17 year old, the knife was the 17 year old’s, the 17 year old had carried out the stabbing intending to kill, and the 18 year old had not wished to kill but merely acted as a lookout, thinking that at worst the policeman would receive serious injuries? Murder can be committed with just an intent to cause serious harm, so both would be guilty in law. But almost everyone would say that the 17 year old’s crime was far worse than his slightly older friend, and that he should, all things being equal, stay in prison for longer.
And anyway, what is an adult? The current guidelines suggest that a whole life tariff should not generally be given to anyone under the age of 21, although there are exceptions. Would Mrs May’s proposal apply to such young adults or not?
In 1952 Police Constable Miles was shot dead by 16 year old Christopher Craig, after Craig’s partner in crime, the simple-minded, 19 year old and unarmed Derek Bentley had been arrested. Both were convicted of murder, Bentley on the basis of a joint enterprise. Only Bentley was hanged, Craig being under age. It is cold comfort that Bentley’s conviction was quashed 46 years later because the trial judge, the ghastly Lord Goddard, had not given him a fair trial. If Mrs May had her way a similar injustice would become mandatory if a case like that happens in the future. The 19 year old would have to be gaoled without hope of parole, whereas the 16 year old would eventually be released. Even if she fixed the age for a whole life tariff at 21 instead of 18, the same problem would arise with slightly older killers.
More awkward anomalies will arise when even worse murderers are given less than whole life sentences. Many would say that anyone who murders a child has sunk about as low as it is possible to go. Yet if such killers – like the appalling Stuart Hazell, recently given a 38 year minimum term for the murder of a twelve year old child – are sentenced more leniently than the Derek Bentleys of the future the public will say, rightly, that the law is a mess. So perhaps murderers of children should also get automatic whole life tariffs? But then other anomalies will appear: why should the sexual murder of a 25 year old be treated less seriously than the murder in a fit of rage of a 17 year old in a drunken kicking in a pub car park?
So perhaps sexual murderers should also get a mandatory whole life term.
And what of multiple murderers? Under the Homicide Act these would be hanged if they had been convicted of murder on a previous occasion but not if they merely murdered lots of people at the same time. Any new law would have to do better than that. The simplest thing would be to say that anyone who kills more than one person should receive a whole life term, otherwise it might look as if two civilian lives were worth less than one police life.
Before we know where we are there will be mandatory whole life tariffs for any number of murders and all discretion will be removed from judges. As each category of murder is classified as deserving of a full life tariff more anomalies will arise, and the special seriousness with which the law already treats the murder of police officers might even be diluted.
Perhaps Ms May has the answers to problems such as these, and has a form of words that avoids injustice in all eventualities. But it is very unlikely.
Instead, she should bravely tell next year’s Police Federation conference that she will not pass unworkable laws. She should face the catcalls and heckling and tell police officers that we must trust judges to pass the right sentence without the interference of politicians.
