The government’s latest White Paper, concentrating as it does on women killing violent men, and the possible defences open to them, is an unnecessary distraction, ill conceived and simply complicates an already messy approach to this, the most serious crime on the statute books.

In 1965, the death penalty for murder was abolished, and as a sop to the “hang ‘em high” lobby, a mandatory life sentence was substituted, and it has remained ever thus. In addition, the sentencing judge is obliged to indicate the minimum term [known as the tariff] to be served before the offender can be considered for parole, or in some extreme cases, life without parole.

It is argued that in setting this minimum term, the sentencing judge can reflect the gravity of the offence, and introduce some degree of flexibility that is otherwise denied him.

This is all fine and dandy if it were not for the hoops which the convicted murderer must jump through when he applies for parole. It is not just the Parole Board that needs to be convinced, it is also the Secretary of State for Justice, whose input into the Board’s deliberations and findings can be crucial, and at times positively meddlesome. [See my earlier article The Independence of the Parole Board]

I don’t know if these sentencing judges are kept informed of the sentences actually served, I doubt it, and indeed, why would they? And does anybody check the time spent in custody against the recommended tariff? Certainly not the editor of the Daily Mail!

One example amongst many will suffice from my own professional experience, when I represented a convicted murderer before the Parole Board. He had murdered his landlady when in his late teens. There was nothing exceptional about the crime to attract maximum publicity. With his mandatory sentence of life imprisonment came a recommended tariff of twelve years. When I represented him, he had served thirty eight years, his entire adult life behind bars. It follows, as night the day, that the ‘tariff’ system doesn’t work.

But whilst sentencing judges are shackled with the absurdity of a mandatory life sentence, these injustices will remain.

The mandatory life sentence for murder should be abolished, with judges free to make the punishment fit the crime. This means determinate sentences should be available. In the most heinous cases, a life sentence will be appropriate, and sometimes without parole, but there should be a sliding scale, and not, as at present, one set in stone.

But I would go further. I would introduce the American system of murder by degrees, again to reflect the gravity of the act, together with the appropriate ‘tariff’. The French, que Dieu les bênisse, have crimes of passion, ideally suited to the wronged female, or male, as the case may be.

In this way, the punishment can indeed be made to fit the crime, and with greater flexibility comes greater fairness. The tariff will not be routinely ignored, and a measure of certainty for the serving prisoner will enter the equation.

By all means leave the offences of murder and manslaughter as they are, they seem to work well enough, offering as they do some limited scope for the endangered female. But the government’s approach is likely to do more harm than good, and is a recipe for confusion and worse still, real miscarriages of justice. For the average juror, the criminal process is complicated enough, without complicating it further.

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David is an English barrister, writer, public performer and keynote speaker. His full profile can be found on his website.

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