Are all murders the same?

Murderers are spending too long in prison, some legal experts believe. Is that liberalism gone mad, or do they have a point?

Are judges being too hard on murderers? Research published last week suggests that people found guilty of murder are spending too long in prison compared with other serious offenders. On average, says a report by the influential Sentencing Advisory Panel, custodial sentences for murderers are two years too long.

The panel's chairman, Professor Martin Wasik, believes that the time has come to rethink the courts' approach, so that murderers are dealt with more consistently and more fairly. The recent Tony Martin case has also raised the argument for giving judges more discretion in life sentences for murder. Professor Wasik says that although the Court of Appeal reduced the Norfolk farmer's conviction to manslaughter, there is scope within the panel's proposals for lighter minimum sentences in cases where the defendant has "over-reacted in self-defence".

The new study recognises that the crime of murder covers a range of human behaviour, encompassing everything from the callous killing of the TV presenter Jill Dando, by Barry George, to the actions of householders such as Tony Martin.

In 1999, 331 adults and juveniles were tried for murder in England and Wales, of whom 252 were found guilty. At least half of all homicides arise out of a "quarrel, revenge or loss of temper", the panel says. About 7 per cent of homicides were carried out in pursuit of theft but murders attributable to arson, gang activity, or terrorism were rare. Research obtained by the panel shows that reconviction rates for murderers are now lower than for other offenders.

Professor Wasik and his fellow advisers believe that it is now important to review the tariff element of the life sentence for murder – the minimum term a killer must spend behind bars before they can be considered for release. By comparing murder tariffs with sentences for attempted murder and importation of class-A drugs, the panel concludes that murderers are attracting harsher sentences. Professor Wasik says the current gap between five years, the average tariff equivalent for attempted murder, and 14 years, the current tariff for murder, is "a very large one."

To close the gap, the panel's consultation paper recommends setting up a new system which for the first time would grade all murders according to a three-tier scale of seriousness. The panel, whose role is to advise the Court of Appeal on setting sentencing guidelines, recommends that the average minimum prison term for a murderer should now be reduced from 14 to 12 years.

The most lenient minimum tariff, the panel proposes, should be eight years and reserved for cases where the killer has acted in self-defence or carried out a "mercy killing." But for the very worst kinds of murder, such as multiple murders, contract killings or political assassinations, the offence could attract the "higher tariff", which could be as much as 30 years.

On the vexed subject of "should life always mean life?", the panel believes that there are serious difficulties with the setting of a "whole life" tariff. "While the Parole Board might decide that, on grounds of the risk posed by the offender, it would never be safe to release him back into the community, a whole life tariff would very rarely be necessary to meet the requirements of retribution and deterrence," says the report. That statement reflects the fact there has always been strong public support for the idea that in the cases of child killers, such as Myra Hindley and Ian Brady, no minimum sentence would satisfy the public's demand for retribution.

But in cases involving children who kill, the panel proposes a possible new approach to sentencing so that the tariff might begin at just 12 months. "The period of the tariff could be linked to various age milestones in the individual young offender's development and maturity," says the panel. The judge could start by establishing what would be the appropriate adult tariff for the offence and then, as a "rule of thumb", reduce it by a year for each year of the offender's age below 18. If the Court of Appeal follows the guidance, it will mark the greatest change to sentencing policy for murder for many years.

Lawyers regard the proposals as a platform for more radical reform which they hope will lead to the abolition of mandatory sentencing in murder cases so that judges are not tied to imposing life sentences in all murders. Brian O'Neill, secretary of the Criminal Bar Association, said he welcomed the report but added: "This is, however, an area in which sentencing would be more just and appropriate if the mandatory life sentence for murder was not the only one available to the court."

Last year the Lord Chief Justice, Lord Woolf, made it clear where he stood on the issue when he told an audience of American lawyers that sentences imposed by Parliament, and not judges, can lead to injustice. "It's almost inevitable that very quickly you find cases arising where the wrong sentence has been applied in the wrong circumstances." Very few judges disagree with him.

In 1999 the European Court of Human Rights considered the minimum sentences for juvenile murderers in the case of the killers of James Bulger. The court's decision helped to end the right of the Home Secretary to interfere with the tariffs set by judges where the defendants are under 18. After that judgment it seemed only a matter of time before the executive would lose its corresponding power to overrule the courts in adult cases. But last week the Home Secretary, David Blunkett, fought off an attempt to strip him of this power. Ironically it was Lord Woolf, sitting in the case, who rejected arguments from two convicted murderers that the Home Secretary's power to fix minimum tariffs for adult prisoners serving mandatory life sentences was incompatible and inconsistent with the "fair and impartial hearing" provisions of the European Convention on Human Rights. Lord Woolf said Parliament had deliberately chosen not to interfere with the Home Secretary's discretion in cases of adult murderers, although it had taken away his power in relation to juveniles.

Parliament must have been well aware of the criticisms of this role being performed by a member of the executive, yet it chose not to change the law. Nevertheless, Lord Woolf did not close the door completely on a future successful challenge. The time may come when developments in European law would require the court to come to a different decision, said Lord Woolf, sitting with Lords Justices Simon Brown and Buxton. But, he said, until that stage was reached: "I do not consider we should interfere with the clearly expressed views of the democratically elected Parliament as those views, up to now, are consistent with the approach adopted by the European Court of Human Rights". He pointed out that, in the great majority of cases, the tariff recommendations made by judges were adopted by the Home Secretary, whose decisions were subject to supervision by the judicial review process.

Whatever Lord Woolf privately thinks about mandatory life sentences, this case shows he accepts that any relaxation in the law will be achieved only through a slow, incremental process of reform. Professor Wasik's consultation paper may be the first such step towards freeing judges from their role as life sentencers in murder cases.