2003 4 Supreme 505 ; 2002 0 Supreme(SC) 1156

2003(4) Supreme 505
(LONG NOTE)
HOUSE OF LORDS (UK)
Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hutton, Lord Hobhouse of Woodborough, Lord Scott of Foscote and Lord Rodger of Earlsferry
R. v. Lichniak
R. v. Pyrah
Decided on 21/23-10-2002 and
25-11-2002
Counsel for the Parties :
For the Appellants : Edward Fitzgerald QC and Phillippa Kaufmann (instructed by Irwin Mitchell, Sheffield).
For the Secretary of State : David Pannick QC and Mark Shaw QC (instructed by the Treasury Solicitor).

IMPORTANT POINT
Mandatory life sentence for murder has a denunciatory value, expressing society s view of a crime which has long been regarded with peculiar abhorrence.

(UK) Murder (Abolition of Death Penalty) Act, 1965-Section 1(1)-European Convention on Human Rights-Murder-Sentence of life imprisonment-Section 1(1) challenged as arbitrary and/or disproportionate as it requires same life sentence passed on all convicted murderers irrespective of whether they are thought to present a danger to public or not-Accused, a woman 29 years old lived with a man T-T used her to go with him in his car to a public house to challenge a man with whom he had a quarrel-She took a large carving knife from the car and while two men were grappling with each other she fatally stabbed deceased-Judge holding that accused lady had become highly emotional on the occasion and took knife and killed on an impulse-Award of sentence of 10 to 12 years to meet requirements of retribution and general deterrence-Judge reported that upon release she is not likely to commit offences of a kind making her a public danger-Whether mandatory life sentence is violative of articles 3 and 5 of European Convention on Human Rights-Held, no.

       Per Lord Bingham of Cornhill

       Held : The sentence of life imprisonment is now the most severe penalty for which the law provides. There is ground for concern if the sentence is imposed on those who, despite the seriousness of their crimes, could be adequately punished by a determinate sentence. Indeed, any mandatory or minimum mandatory sentence arouses concern that it may operate in a disproportionate manner in some cases. It was considerations of this kind which led the Supreme Court of Canada to conclude that a mandatory seven-year minimum sentence for importing drugs was incompatible with S.12 of the Canadian Charter of Rights and Freedoms, which guaranteed that no one should be subjected to cruel and unusual treatment or punishment (see R v. Smith (1987) 1 SCR 1045). I am, however, persuaded by the arguments advanced by Mr. David Pannick QC on behalf of the Home Secretary that Mr. Fitzgerald s argument in these appeals should be rejected.

       First, sitting judicially, the House is concerned to decide not whether the mandatory life sentence for murder is desirable or necessary but whether it is lawful. Unless the sentence is shown to be unlawful, the appeals must fail. Secondly, the House must note that S. 1(1) of the 1965 Act represents the settled will of Parliament. Criticism of the sub-section has been voiced in many expert and authoritative quarters over the years, and there have been numerous occasions on which Parliament could have amended it had it wished, but there has never been a majority of both Houses in favour of amendment. The fact that S.1(1) represents the settled will of a democratic assembly is not a conclusive reason for upholding it, but a degree of deference is due to the judgment of a democratic assembly on how a particular social problem is best tackled (see Brown v. Stott (Procurator Fiscal, Dunfermline) [2001] 2 All ER 97 at 113-114, 121, [2001] 2 WLR 817 at 834-835, 842; R v. Secretary of State for the Home Dept., exp. Mahmood [2001] 2 FCR 63 at 79, 79-80, [2001] 1 WLR 840 at 854-855, 856 (paras 33, 38). It may be accepted that the mandatory life penalty for murder has a denunciatory value, expressing society s view of a crime which has long been regarded with peculiar abhorrence.

       Thirdly, the mandatory life sentence is imposed only on those who have been proved to have taken a life or lives, as adults, with the intention of doing so or of causing serious physical injury and whose responsibility for their conduct was not found to be diminished. While, therefore, there will be those (of whom those who kill as an act of mercy, or battered wives, or those who overreact to a perceived threat may provide the best examples) who may reasonably be judged very unlikely to resort to violence again, the discussion inevitably takes place with reference to a person who is shown to have resorted to violence once, with fatal consequences to another. This in itself distinguishes this class of case from that to which S. 2 of the 1997 Act applied,