Paul Vallely: A life sentence has rarely meant a life in prison

There has to be more to this, however, than ring-fencing justice from the tabloid press lynch-mob

A friend of a friend was convicted for murder a few years ago. He was given a life sentence. Most of us think that we know what that means. But when you get up close to an event like that, everything gets a lot more complicated.

The House of Lords yesterday decided, in effect, to strip the Home Secretary of the power to increase the length of time that murderers must serve before they can apply for parole. It seemed, on the face of it, an eminently sensible decision that will remove from politicians the temptation to chase votes by making effortless "tough-man" decisions to win the approval of the tabloid press. But there is more to this than initially meets the eye-for-an-eye.

Life imprisonment has always been something of a misnomer. The term came about at the time of the abolition of the death penalty. In the days when judicial hanging was still legal, it was common ­ where there were particularly mitigating circumstances ­ for those who had been found guilty of murder to have their death sentences commuted, by royal prerogative, to one of imprisonment for life. But since, by definition, this happened only to those with immensely extenuating circumstances, it happened that public and governmental sympathy was such that the offenders were often released after eight or nine years.

With the Murder (Death Penalty Abolition) Act of 1965, all sentences of hanging were replaced by mandatory life imprisonment. This one sentence covers all offences ­ from the sadistic torture of children to those crimes we now know as mercy killings. Which is why the "life" sentence takes as its guideline starting point imprisonment for 14 years, though this is routinely reduced to 12 years in cases of lesser seriousness and often extended to 16 years.

It is open to the trial judge, in singularly unpleasant cases, to specify that the killer should serve a greater number of years ­ or to suggest, as the judge did in sentencing Roy Whiting for the murder of eight-year-old Sarah Payne, that life should mean life. But this is unusual. In 90 per cent of cases the judge simply passes a sentence of life.

What happens then is that the court papers are passed to the head of the judicial system, the Lord Chief Justice who, in each case, translates "life" into a number of years, determined by the nature of the offence, the convict's previous record, and various other factors. He then passes the case on to the Home Office, where his tariff is approved, reduced or extended.

What the House of Lords yesterday effectively decided is that, since the Lord Chief Justice is a judge, his part in the process is compatible with article six of the European Convention on Human Rights ­ which gives a convicted person the right to have a sentence imposed by an independent and impartial tribunal. However, the involvement of the Home Secretary, a politician, in the process is an unlawful one.

There has to be more to this, however, than ring-fencing justice from the lynch-mob anger of the tabloid press. In the case of the friend of my friend, the Home Secretary refused to set a tariff until told by prison psychiatrists that the killer had acknowledged his guilt and shown remorse.

In that case the offender's family was not unhappy with the process; they saw it as the first stage of the psychological process of acceptance, understanding and acknowledgement that they hope will lead to remorse and then to penitence and then to rehabilitation. To them there might be an argument for retaining the tariff system, perhaps administered by the Parole Board or by the Lord Chief Justice, and allowing some time to elapse before tariff is set.

Yet it has a downside. The idea of a tariff evolved under a series of home secretaries in the Thatcher years. It has come to be seen as the "punishment, retribution and deterrence" element of the sentence. Once that is served, the only function of jail is to protect the public, so if offenders are at that point deemed to be of no danger to the community, they may be allowed to apply for parole.

The trouble here comes with those prisoners who insist that they are innocent. The Parole Board, in all its public policy statements, insists that it "can, and does, direct or recommend the release of prisoners who deny their guilt, where the level of risk they present to the public is acceptable".

But the rider at the end of that last sentence is often taken to mean, in practice, that continued protestations of innocence reveal the prisoner doesn't possess the remorse that is a precondition for parole. The result of that, as we saw only this month, can be that injustice is magnified, as it was in the case of Robert Brown who had his conviction quashed after 25 years in jail ­ the last 10 of which he could have avoided if only he had agreed to lie to the Parole Board and admit his guilt.

David Blunkett yesterday announced that he intends to circumvent the law lords' decision by introducing a new law to fix minimum tariffs in the future. Categorising murder is fraught with problems, as the 1957 Homicide Act with its capital and non-capital classifications showed. However, more seriously, it will not address the punishment or rehabilitation paradox that the present tariff and parole systems enshrine.

p.vallely@independent.co.uk