LAW REPORT: 11 April 1995 Parliament should review life sentences should be reviewed

Regina v Leaney Court of Appeal (Criminal Division) (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Mantell and Mr Justice Keene). 10 April 1995.

The anomalies in the regime whereby a trial judge recommends the minimum period of detention for a prisoner serving a mandatory life sentence from which the prisoner has no right of appeal as compared with practice for a prisoner serving a discretionary life sentence should be considered by Parliament urgently.

The Court of Appeal dismissed the appellant's appeal against the trial judge's recommendation under section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 that the appellant should serve a minimum 20 years of his mandatory life sentence on his conviction of murder. The appellant appealed against the recommendation and alternatively applied for judicial review of the recommendation.

Anthony Hacking QC (Registrar of Criminal Appeals) for the appellant; Heather Hallett QC and Lindsay Burn (CPS) for the Crown.

LORD TAYLOR CJ, said that there was much force in the submission that the minimum sentence of 20 years was inappropriate. If the recommendation was excessive, what could the Court of Appeal do?

There was clear and strong authority deciding that no appeal lay from a trial judge's recommendation under section 1(2). The court's powers with regard to appeals against sentence were prescribed in sections 9 and 50 of the Criminal Appeal Act 1968.

When Parliament came to define "sentence" in section 50 and later amended it four times, no action was taken to overrule the decision in R v Aitken 50 Cr App R which decided that no appeal lay against a trial judge's recommendation of a minimum period.

Whether the statement of the minimum period was regarded as a recommendation or a declaration, it had not been included by Parliament in section 50. The attempt to challenge the recommendation by way of appeal was rejected. Section 29(3) of the Supreme Court Act 1981 excluded judicial review in relation to the Crown Court's jurisdiction in matters relating to trial on indictment.

While the judge's recommendation was not part of the sentence, it related to the trial on indictment. The recommendation was based on all the trial judge heard in the course of the trial on indictment and his evaluation of that material. The application to proceed by way of judicial review of the trial judge's recommendation was rejected.

There were anomalous distinctions between the present provisions and practices relating to mandatory life sentences as compared with discretionary life sentences, where section 34 of the Criminal Justice Act 1991 applied.

A judge imposing a discretionary life sentence was empowered by section 34 to state "the relevant part" of the sentence appropriate for punishment and deterrence, leaving aside risk to the public. Since "the relevant part" was part of the judge's order and was not merely a recommendation, it was open to appeal.

By contrast, in relation to mandatory life sentences, if the trial judge made a recommendation under section 1(2) of the 1965 Act there was no appeal. If he did not, the practice continued of written reports to the Home Secretary containing a recommendation of the minimum period for the purposes of punishment and deterrence, leaving aside risk to the public. It was by no means clear that recommendations under section 1(2) were on that basis and they might reflect risk to the public as well as the need to punish and deter.

The regime described involved a number of anomalies and ought to be reconsidered by Parliament as a matter of urgency. It might well be thought that the same openness and criteria deriving from section 34 of the 1991 Act and from the right of appeal against orders thereunder should apply in relation to mandatory life sentences.

Ying Hui Tan, Barrister