Criminal Justice (Mandatory Minimum Periods of Actual Imprisonment) (Amendment) (Jersey) Law 201-
REPORT
- The Criminal Justice (Mandatory Minimum Periods of Actual Imprisonment) (Jersey) Law 2005 (“the 2005 Law”) made provision regarding persons who had committed offences for which there was a mandatory sentence of life imprisonment. It required the Royal Court, in relation to any such person, to order a mandatory minimum period of imprisonment in respect of the offence or offences concerned.
- The reasons for the 2005 Law were as follows:
2/1 Article 6(1) of the European Convention on Human Rights provides that a defendant in a criminal case has a right to a fair trial by an independent and impartial tribunal. In a case in the United Kingdom in 2001[1] the following principles were upheld –
- the imposition of a sentence is part of the trial;
- the sentence therefore should be imposed by an independent and impartial tribunal;
- the fixing of the tariff of a convicted murderer is legally indistinguishable from the imposition of a sentence;
- it follows that the tariff should be fixed by an independent and impartial tribunal;
- the Home Secretary is not an independent and impartial tribunal;
- it follows that the Home Secretary should not fix the tariff of a convicted murderer.
2/2 In England and Wales, since 1965, murder had been punishable with a mandatory sentence of life imprisonment. The Home Secretary, however, had a discretion to release an offender on licence if recommended to do so by the Parole Board.
2/3 The arrangements worked as follows. When imposing the life sentence, the trial judge would review the factors which mitigated or aggravated the offence and would advise the Lord Chief Justice of the day. The Lord Chief Justice was in a position to obtain an overall view from reports from trial judges up and down the country, and so would advise the Home Secretary. The Home Secretary would then make the decision on how long the offender should remain in prison before being eligible for parole. Usually the period fixed was in line with the judicial recommendations, but in a small minority of cases the period set by the Home Secretary was either longer or shorter than the Judge recommended. This process was known colloquially as “fixing the tariff”. Towards the end of the period of the tariff term, the case of the convicted murderer would be referred to the Parole Board which would consider whether it was necessary for the protection of the public that the convicted murderer should continue to be confined. If the Board concluded that it was necessary, the Home Secretary had no power to release the prisoner. If on the other hand the Board recommended that the convicted murderer should be released on licence, then the Home Secretary could, after consultation with the Lord Chief Justice, order his or her release, and indeed ordinarily did so, although the Home Secretary retained a discretion.
2/4 It was this process that was found not to be compliant with Article 6 of the European Convention on Human Rights. As a result the Government in the United Kingdom made provision – in the Criminal Justice Act 2003 – for the tariff to be fixed instead by the trial judge.
2/5 In Jersey there had been a mandatory life sentence for murder since 1986.[2] Routinely, persons convicted were sent to the United Kingdom where they were treated as if they had been convicted before a Court in England and Wales, and therefore were eligible to be released on licence. The Jersey trial judge had a discretion to recommend a minimum period which the convicted murderer should serve, in similar fashion to the procedure which existed in England and Wales.
2/6 The transfer from La Moye Prison to one of Her Majesty’s Prisons in England and Wales was put into effect by the Secretary of State using powers conferred by the Crime (Sentences) Act 1997. These are unrestricted transfers in the case of life sentences. This provision means that the rules of the receiving jurisdiction (England and Wales) apply for the purposes of any release on licence notwithstanding that the person incarcerated there has not been convicted before a court of England and Wales.
2/7 The 2005 Law – as mentioned at the outset – changed the position in Jersey so that the trial judge, in cases of mandatory life sentences, had to fix the tariff. It would not have been compliant with the European Convention on Human Rights had the Home Secretary continued to have any discretion to fix the minimum term of imprisonment which those convicted of murder in Jersey should serve. The 2005 Law therefore substantially adopted the approach followed in the Criminal Justice Act 2003. Accordingly a distinction was drawn between exceptionally serious cases where the Court could reach the view that life imprisonment should mean life; particularly serious cases, where the Court was to start at a period of 30 years imprisonment and then increase it or reduce it having regard to particular aggravating or mitigating circumstances; and other cases where, if the offender was 18 years of age or older, the starting point was 15 years, and in the case of an offender under the age of 18, of 12 years before again the same process of an increase or reduction according to aggravating or mitigating circumstances, was applied.
2/8 The order of the Court which set a mandatory minimum period of imprisonment took effect as a sentence against which the accused or the Attorney General had a right to appeal to the Court of Appeal.
- On 29th October 2012, in the case of The Attorney General v. Damien David Rzeszowski [2012] JRC198 the accused had been acquitted of 6 counts of murder, but convicted of manslaughter by reason of diminished responsibility. It fell to the Superior Number of the Royal Court to impose sentence. If the 2005 Law had permitted, the Crown would have moved for six life sentences with a minimum period of 20 years. In the event, the Crown moved for 30 years’ imprisonment in respect of each count.
- The 2005 Law, as mentioned earlier, was based substantially on the Criminal Justice Act 2003 of the United Kingdom. Separate provision was made in that country – by the Criminal Justice and Court Services Act 2000[3] – in relation to life sentences in circumstances where the sentence was not fixed by law i.e. where it was discretionary. That other provision was not mirrored in the 2005 Law, which was confined in its scope to sentencing in cases where the sentence was fixed by law i.e. where it was mandatory. The Court in Rzeszowski urged that the 2005 Law be amended to make the necessary provision in relation to discretionary life sentences.
- The purpose of this Law is to amend the 2005 Law accordingly; and to require a court that sentences an offender to a discretionary life sentence to order, in relation to the offender, a minimum period of imprisonment in respect of the offence or offences concerned.
- The minimum period may in appropriate cases be made for the whole of the offender’s life. This however would not apply in relation to an offender under 21 years of age.
- The trial judge would always be required to state, in open court, in ordinary language, the court’s reasons for making the order it did.
- It is unnecessary to duplicate the further detail contained in the Law Draftsman’s explanatory note.
Manpower statement
This Draft Law has no implications for the financial or manpower resources of the States.
Human Rights
This note on the human rights aspects of the draft Law in the Appendix has been prepared by the Law Officers’ Department and is included for the information of States Members. It is not, and should not be taken as, legal advice.
APPENDIX
Criminal Justice (Mandatory Minimum Periods of Actual Imprisonment) (Amendment) (Jersey) Law 201-
This Note has been prepared in respect of the draft Criminal Justice (Mandatory Minimum Periods of Actual Imprisonment) (Amendment) (Jersey) Law 201- (“the draft Law”) by the Law Officers’ Department. It summarises the principal human rights issues arising from the contents of the draft Law and explains why, in the Law Officers’ opinion, the draft Law is compatible with the European Convention on Human Rights (“ECHR”).
Article 6 ECHR
- The draft Law engages Article 6 as it involves the determination of the minimum period a person sentenced to life imprisonment must serve before being able to benefit from early release provisions. The principal Law already provides for this in circumstances where a life sentence is required by law, and the purpose of the Amendment is simply to extend this regime to cases where the Royal Court in its discretion imposes a life sentence.
- The draft Law only makes provision for the minimum period to be ordered by the Court and does not prescribe the actual minimum period itself, leaving this decision to the Court. This therefore guarantees that the determination, of when a person may be able to benefit from early release, shall be made by the Royal Court, a self evidently independent and impartial tribunal for the purposes of Article 6 ECHR.
- The principal Law was introduced in 2005 to cure the Article 6 defect, as identified in a House of Lords case, whereby the Home Secretary made this determination as opposed to an independent court. For more details on the background and the Article 6 reasoning for bringing the principal Law into force, members are referred to P. 80/2005.
- The draft Law does not introduce anything which might undermine Article 6 ECHR but instead, it extends an already Article 6 compliant regime to discretionary life sentences, as well as statutory life sentences.
- The draft Law is therefore compatible with Article 6 ECHR.
- No other provisions of the ECHR are engaged by the draft Law. Article 5 ECHR provides of course for the right to liberty but this right is qualified by allowing deprivation when a person is convicted of an offence by a competent court. This does not therefore need to be considered in detail.
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