Sentencing for Murder: A Review of Policy and Practice

By Dr Richard Martin

Read the full paper here: Sentencing for Murder – A Review of Policy and Practice

Executive Summary:

• The only sentence a court can pass for murder is life imprisonment. The mandatory life sentence is comprised of three elements: the minimum term spent in prison (handed down by the sentencing court); the post-term (determined by the Parole Board and its assessment of the offender’s dangerousness); release on licence into the community, subject to conditions and the possibility to recall the offender back to prison.

• The challenge facing the sentencing judge in murder cases derives in large part from the range of harm and culpability the offence of murder encompasses in England and Wales. Murder can be committed where the offender intends, or foresees as virtually certain, not only the victim’s death, but also really serious harm and then death in fact results.

• Schedule 21 to the Sentencing Act 2020 governs the sentencing of murder. It was originally introduced in the Criminal Justice Act 2003. By creating a series of starting points and providing lists of aggravating and mitigating factors, Schedule 21 recognises that despite the mandatory nature of the life sentence, an identical level of seriousness cannot be attributed to each murder. In a series of cases, the Court of Appeal of England and Wales has interpreted and applied Schedule 21 to ensure sentencing judges achieve a just sentence in accordance with the guidance provided for by Parliament in Schedule 21.

• According to the Sentencing Council, the introduction of the higher starting points in Schedule 21 has meant sentences for the vast majority of murder cases increased substantially. The average minimum term has risen from 13 years in 2000 to 21 years in 2021 – an increase of over 60%. This increase in minimum terms has also inflated sentence lengths for other serious offences, most notably manslaughter.

• Schedule 21 has been the subject of a series of amendments over the last two decades driven by successive Governments, notably the expansion of cases within the higher-level starting points and the creation of a new starting point (25 years). Recent amendments to Schedule 21 have been announced by the Government and are contained in the Sentencing Bill, Criminal Justice Bill and the Sentencing Act 2020 (Amendment of Schedule 21) Regulations 2023. The first of these seeks to expand the types of cases to which the Whole Life Order will apply, while the latter two are in response to the Domestic Homicide Sentencing Review, which made recommendations to better reflect the causes, characteristics and harms of fatal domestic abuse.

• There have been numerous critiques of Schedule 21. A longstanding one has been the very justification for the mandatory, rather than discretionary, life sentence for murder in the first place. As for the sentencing framework in Schedule 21 specifically, criticism has focused on the disproportionality between Schedule 21’s starting points and the offender’s harm and culpability, as well as the ordinal disproportionality across starting points. More recent commentary has questioned the merits and operation of the Whole Life Order, as well as noting the limited empirical research on its effects on offenders.