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Murder carries a mandatory life sentence. This can, but rarely does, mean that the offender will spend the rest of his natural life in prison. An offender given a mandatory life sentence who is released from prison will remain on licence for the rest of his or her life.

Setting the minimum term

When sentencing an offender convicted of murder, the court will set a minimum term which must be served in custody before the offender can be considered for release on licence. This does not mean that the offender will be released automatically on expiry of the minimum term; instead the minimum term represents the earliest possible date at which the offender can be considered for parole. In certain particularly serious cases a “whole life” minimum term may be set.

Starting points

When setting the minimum term component of a mandatory life sentence, the court must select one of the “starting points” specified in the 2003 Act. The appropriate starting point will depend on the seriousness of the offence and the age of the offender.

Aggravating and mitigating factors

Once the court has determined the appropriate starting point for the minimum term, it should take into account any aggravating or mitigating factors and may add to or subtract from the starting point to arrive at the appropriate minimum term for the particular offender being sentenced.

Previous convictions, bail and guilty pleas

Finally, the court should consider what account to take of previous convictions, offences committed while on bail and guilty pleas. Previous convictions and offences committed while on bail may be treated as aggravating factors resulting in an increased minimum term, while a guilty plea may (in certain circumstances) result in a reduced minimum term.

Announcing the minimum term

The judge must, in open court, either announce the minimum term the prisoner must serve before he is eligible to be considered by the Parole Board for early release on licence, or announce that the seriousness of the offence is so exceptionally high that the early release provisions should not apply at all (a “whole life order”). The judge must give reasons for the minimum term imposed, explain why a particular starting point has been chosen and give reasons for any departure from the principles.

Reviewing the law of murder

The Law Commission Review and the Labour Government’s response

A Law Commission report published in 2006 proposed that the offence of murder should be split into “first” and “second” degrees, with only first degree murder attracting a mandatory life sentence and second degree murder attracting a discretionary life sentence. These proposals received support from a number of academics, legal practitioners and human rights groups, who argued that the single sentencing option of a mandatory life sentence is too inflexible to reflect the broad range of conduct that murder can encompass. However, in response the then Government said that it remained committed to mandatory life sentences for murder, given its status as “a unique crime of particular moral and social significance”.

Public opinion: The Nuffield Foundation report

In October 2010, the Nuffield Foundation published the results of research it had conducted into public opinion towards sentencing in murder cases. The authors said they had found “no evidence of overwhelming or widespread public support for automatically sending all convicted murderers to life imprisonment”, although there was support for mandatory life sentences in more serious murder scenarios.

The Coalition Government’s policy

In its green paper Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders, published in December 2010, the Coalition Government indicated that it would look at “simplifying” the current legislation on murder sentencing, although it emphasised that it had “no intention of abolishing the mandatory life sentence”. However, no substantive simplification or reform of the murder sentencing framework followed.

This briefing applies to England and Wales.

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