Bulger ruling follows judges' trend

A series of recent rulings have helped keep politicians out of determining sentences, writes Heather Mills hy
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The Independent Online
Yesterday's court defeat for Michael Howard is the latest advance by the judges in keeping politicians out of determining individual sentences.

A series of rulings by European and English judges eroding the role of the executive, means that the Home Secretary now retains only the right to decide if and when murderers serving mandatory life sentences should be freed.

Yesterday's High Court decision, coupled with a ruling by human rights judges in Strasbourg earlier this year, effectively removes any role for the Home Secretary in fixing penalties for the 230 children and young people detained indefinitely "during her majesty's pleasure" for serious offences.

In February, a unanimous decision by the European Court of Human Rights swept away the powers of the Home Secretary to decide whether or not to release young murderers once a "tariff", or minimum term, set by the Home Secretary had expired. They said their release should be decided by a "court-like body" which regularly reviewed their detention.

The two English judges' decision yesterday to declare "tariffs" illegal - saying that children should not be treated as adults - will leave the entire process in the hands of the independent tribunal, like the Parole Board.

In 1990 another European Court ruling abolished Mr Howard's powers to decide on the release dates for those serving discretionary life sentences - those life terms imposed for offences other than murder. Justice and human rights organisations say it is now only a matter of time before the Home Secretary's final say in mandatory life sentences for murderers will also be swept aside.

There is a growing body of highly influential opinion - including that of the cross-party Home Affairs select committee - that it is wrong in principle for a politician to play a role in what should be a matter for the judges. Last December, the Conservative-dominated Committee said Michael Howard might be in a better position to respond to "public will" in high profile cases, but "public opinion is not the surest guide in making such a decision".

These words should ring alarm bells with Mr Howard before he proceeds with his threat yesterday to change the law relating to child killers, if he fails - as is likely - in his appeals against yesterday's decision.

MPs will be even more emphatic in their opposition to executive involvement when it comes to children's rights and justice. Mr Howard would face some cross-party opposition in the Commons - and outright hostility in the Lords, which is in favour of abolishing the mandatory life sentence for murder all together.

As it is, the UK is out of step with Europein the way that it deals with child offenders. Most countries have set the age of criminality as low as 10. While yesterday's ruling was seen by lawyers and children's groups as a step towards a return to the concept of "juvenile justice", they argue that the government should go further.

Justice in its recent report on child killers, suggests raising the age of criminality to 14, claims that a public trial is inappropriate for those under 14, and recommends that an independent court-like body responsible for deciding their release dates should review their detention every year.