Criminal law update: whole-life tariff, private prosecutors, appropriate officer

On 24 January, the Court of Appeal heard submissions on whether courts can lawfully impose ‘whole-life tariffs’ on those convicted of murder. The use of whole-life tariffs is rare; Schedule 21 to the Criminal Justice Act 2003 states that such an order is appropriate where the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high. An example of a case that would normally fall within that definition is one in which a murder is committed by an offender previously convicted of the same offence. While the power to make such an order is well established under domestic law, in the last year this has come into conflict with the UK’s obligations as a party to the European Convention on Human Rights (ECtHR).

This issue arose in July last year when the ECtHR decided in Vinter and Ors v UK that imposing such a sentence contravened article 3 of the convention (prohibiting inhuman or degrading treatment), and was as such unlawful. The appeal was brought by Douglas Vinter (with two others), who murdered a colleague in 1996 and after being released, stabbed his wife in 2008. In its judgment, the ECtHR said that “for a life sentence to remain compatible with article 3 there had to be both a possibility of release and a possibility of review”.

While the ECtHR did not consider imprisonment for life to be unlawful in itself, it objected to the imposition of a whole-life tariff without provision for later review. The Strasbourg court held that this was essential to ensure that continued imprisonment remained “justified on legitimate penological grounds”. The court considered it “inhumane” or “degrading” to deny a prisoner, from the outset, even a faint hope of eventual rehabilitation and release.

Whole-life tariff

Following Vinter, some judges have felt prohibited from making a whole-life order (such as Sweeney J in the sentencing of Ian McLoughlin in October 2013; he instead imposed a minimum term of 40 years) while others have considered themselves bound by the earlier rulings of the English courts, and have upheld the whole-life tariff (for example, Wilkie J sentencing Jamie Reynolds). In December, Sweeney J deferred the sentencing of two men convicted of murdering Private Lee Rigby in Woolwich in May 2013, to await the decision of the Court of Appeal on this issue.

At the 24 January hearing, five appellate judges (the Lord Chief Justice, Lord Thomas, Sir Brian Leveson P, Hallett and Treacy LJJ and Burnett J) were asked to consider submissions on behalf of convicted murderers Lee Newell and Matthew Thomas, and on behalf of the Attorney General in the case of Ian McLoughlin. Those acting for the appellants submitted that a whole-life order was excessive, and that a defendant “must maintain the right to hope that one day he will have the right to atone”.

Arguments on behalf of the Attorney General were that the 40-year minimum term imposed on McLoughlin was “unduly lenient” and that there is already provision to allow for release from a whole-life tariff under domestic law as “any prisoner can approach the secretary of state for release on compassionate grounds” (under section 30 of the Crime (Sentences) Act 1997). It was submitted that this provision was sufficient to satisfy the demands of the ECtHR that a whole-life order should not be absolute.

Judgment was reserved, and so it remains to be seen how the Court of Appeal will determine their obligations suggested. Either way, the decision is likely to be divisive both politically and ethically. Any decision will face criticism in the on-going debate over the provisions of the Human Rights Act 1998, and the extent to which our justice system can and should be governed by Europe. And while some commentators believe that the continued use of whole-life tariffs is outdated and tantamount to a delayed death penalty, others, like the Attorney General, believe that for some “particularly heinous and serious crimes”, the court ought to be able to direct that life imprisonment really means life.

Private prosecutors’ power

Also on 24 January the Court of Appeal handed down a ruling determining fundamental issues concerning the role and power of private prosecutors. In R (Virgin Media Ltd) v Zinga, the court was required to consider two issues, namely, whether a private prosecutor was entitled to bring confiscation proceedings under the Proceeds of Crime Act 2002 (POCA), even where it had no financial or personal interest in the outcome; and the propriety of a private prosecutor procuring assistance from the police in return for a donation to police funds.

The defendant was an importer and wholesaler of devices which were designed fraudulently to equip its customers with Virgin cable networks, generating £11.8m in profits. Virgin took the decision to proceed with a private prosecution instead of civil proceedings, and enlisted the assistance of the police in their investigation, agreeing to donate 25 per cent of any funds recovered as recompense.

Following conviction, Virgin began simultaneous confiscation and compensation order proceedings under POCA. The defendant sought a stay of both, on the grounds that neither were permitted by legislation nor established authority, and that the proceedings represented an abuse of process. While Virgin abandoned the compensation claim as a result of quantification challenges, it decided to pursue the confiscation order, despite the fact that this would stand to benefit only the Crown.

In its judgment, the court made five important points in response to the various arguments. The primary ruling is that a private prosecutor is endowed with the power to bring confiscation proceedings. The right to bring a private prosecution is preserved in very broad terms in section 6 of Prosecution of Offences Act 1985, with sentencing being necessarily a part of “criminal proceedings”.

Secondly, when determining the scope of the meaning of “prosecutor”, the court acknowledged that there is a statutory omission regarding compensation to a defendant by a private prosecutor in the event of misconduct (per section 72 POCA). However, this failure to provide a remedy does not allow for the inference that private prosecutors are excluded from the broad definition of “prosecutor”.

Appropriate officer

Thirdly, POCA makes a clear distinction between those who are entitled to investigate and those who are entitled to prosecute. The impairment of a private prosecutor to investigate thus does not preclude their full involvement in confiscation proceedings, provided an appropriate officer, as defined by POCA, assists with the investigation (in this instance the Metropolitan Police). There is therefore no limitation as to the powers of a private prosecutor which can be drawn from this argument.

Fourthly, though there was no apparent abuse of process in the instant case, there was the possibility that the agreement between Virgin and the police could be construed problematically following R v Hounsham. However, it was deemed inappropriate for the court to comment upon the circumstances in which the police should assist in confiscation or compensation proceedings brought by private prosecutors.

Finally, the court commented on the increased preponderance of private prosecutions, and the implications resulting from this pattern. It observed that there may often appear to be a conflict of interests where a private prosecutor instigates confiscation proceedings, stemming from the interrelationship between the public interest and the benefit to the prosecuting entity. However, in the great majority of such cases, the confiscation will also serve the public interest, and the court is rightly charged with ensuring against a disproportionate or unjust outcome. Furthermore, counsel should be trusted to act with integrity and with regard for the public interest, with their overarching duty to the court in preference to their clients’ interests.

This judgment determines that not only is there a legal basis for granting private prosecutors the same powers as state-funded prosecutors, but that there is also a public interest imperative. In light of the considerable economising vis-à-vis state activity and funding for prosecution bodies, private prosecutions are on the rise. With this in mind, the relationship between private prosecutor and police must be interrogated and delimited, if private prosecutions are to have the same efficacy and deterrent force as their state-funded counterparts.

Unused material

On 3 December 2013, a statement issued by the Attorney General’s Office confirmed that Lord Chief Justice for England and Wales, Lord Thomas and the Attorney General have worked together to produce revised judicial protocol and updated guidance on the disclosure of unused material. The newly published guidance: ‘Attorney General’s Guidance on Disclosure’ and ‘Judicial Protocol on the Disclosure of Unused Material in Criminal Cases’ is intended to clarify the procedures to be followed and the roles of those involved; prosecution, defence, court, investigating officer, case progression and disclosure officers, as well as the specific roles ascribed to the lawyers and advocates.

These protocols come following recommendations made in reviews by Goss LJ on ‘Disclosure in Criminal Proceedings’ and Treacy LJ’s ‘Further review of disclosure in criminal proceedings: sanctions for disclosure failure’.

The Attorney General’s guidelines stress the importance of prosecution-led disclosure and of applying the CPIA regime in a ‘thinking manner’, tailored, where appropriate, to the type of investigation or prosecution in question. The judicial guidelines emphasise the principles to be applied to, and the importance of, disclosure; the expectations of the court and its role in disclosure, in particular in relation to case management; and the consequences of a failure by the prosecution or defence to comply with their obligations. Consequently these protocols are complementary and are intended to be read together, replacing earlier protocols on disclosure. SJ

 

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Rebecca Meads is an associate barrister at Peters and Peters

www.petersandpeters.com

 

 

 

 

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