Once the decision to impose a discretionary life sentence has been made the minimum tariff should be set according to the sentencing regime at the time of sentence, and not when the offence was committed. This can be distinguished from mandatory life sentences for murder.
The Appellant was sentenced in December 2014 for an offence of manslaughter committed in May 2000. She received life imprisonment with a minimum term of 12 years under s82A Powers of Criminal Courts (Sentencing) Act 2000.
The sentencing judge applied the reasoning in R v H  EWCA Crim 2753, which concluded that sentence should be imposed on the basis of the legislative provisions and practice current at the date of the sentencing hearing, while respecting the maximum sentences that applied at the time of commission of the offence.
The Appellant appealed against the length of the minimum term on the basis that, the killing having occurred in 2000, the Recorder offended against article 7.1 of the European Convention on Human Rights, which prohibits a heavier penalty being imposed "than the one that was applicable at the time the criminal offence was committed".
It was argued that this principle was established in R v Sullivan  1 Cr App Rep 3, which decided that where the court is imposing a mandatory life sentence for a murder committed before the 18th of December 2003, the court may not impose a minimum term longer than would have been imposed at the time at which the offence was committed.
It was argued that Sullivan should have applied in this case, on the basis that there is no difference in purpose or structure between the imposition of a minimum term as part of a mandatory life sentence for an offence of murder and the imposition of a minimum term as part of a discretionary life sentence for an offence of manslaughter.
The sentencing judge rightly distinguished Sullivan as a case involving murder rather than manslaughter, and correctly followed the principles in H. It is significant that Lord Chief Justice Judge in this case recognised the clear difference in regimes between the calculation of minimum terms in discretionary life sentences, including those in homicides, and those calculated in mandatory life terms for murder. In 2003 the Criminal Justice Act introduced a new structure for the calculation and imposition of minimum terms, which only applied to the minimum term of a mandatory life sentence in murder cases. The calculation of the minimum term in manslaughter cases since the 2003 Act continues to be an exercise in judicial discretion.
There are strong reasons of public policy why the exercise of this judicial discretion should reflect current standards and current sentencing policy.
This does not offend Article 7.1 of the ECHR, as the phrase 'applicable at the time the offence was committed' was found in R (on the application of Uttley) v Secretary of State for the Home Department to relate to the maximum possible sentence at the time, not the likely sentence based on sentencing practice at that time.
The Appeal was dismissed.
Enter your email address below to sign up and receive updates from our news, articles and cases.
For help and advice talk to a member of our clerking team. They can advise on the best options for your matter.
Call: +44 (0) 20 7353 3102