By John Cooper QC
The Nuffield Report, released last week, on the attitude of the public to sentences imposed for murder once again confirms that when the general public are asked about their views on sentencing they are balanced, fair and, most interestingly, not driven by retribution.
The sentencing debate, and particularly that concerning sentences for those who commit murder, is often conducted in the hotbed of emotion, where feelings are, quite naturally, expressed by the bereaved and stoked by media reporting.
What this Report again demonstrates is that when the public consider sentencing outside fever-pitch publicity, they understand and approve of a sentencing regime which provides the judiciary with a discretion to sentence over a range of the very different factual circumstances which can form a backdrop to the criminally inflicted death by one person upon another.
There are a vast range of facts which can be associated with murder. They can range from the sudden drunken brawl to a premeditated killing. In their report, Murder, Manslaughter and Infanticide [Law Com 304], the Law Commission recommended a first degree, second degree murder approach whereby first degree murder would encompass the most heinous types of killing such as intentional killing or killing through an intention to do serious harm with an awareness of a serious risk of causing death, to second degree murder, anticipated to cover instances such as killing where there was an awareness of the serious risk of causing death coupled with an intention, perhaps to cause some injury, rather than death. [at para 1.35-1.36].
This is both sensible, fair and importantly chimes with the requirements of public trust and expectation. It allows the sentencing judge to impose the sentence which fits the particularity of the crime, and ensures that in the most serious of crimes, the mark of societies’ abhorrence, demonstrated by a life or near life sentence, is not diluted.
Central to any sentencing regime is public confidence. Confidence is borne of understanding. The present sentencing approach to murder, that of mandatory life, is outdated and confusing. It only arose out of the climate of the day in the mid sixties, when the abolition of the death penalty could only have been placed on the statute book if it was perceived that murderers would suffer a life sentence.
We have moved on. The public has moved on. In many ways, they are ahead of the politicians, the media and even some legal commentators, demanding a sophisticated, post capital punishment approach to sentencing those who commit the most serious of offences in the criminal calendar.