This electronic thesis or dissertation has been downloaded from the King’s Research Portal at https://kclpure.kcl.ac.uk/portal/ The Whole Life Order Its genesis; the challenges it both poses and faces; and its uncertain future Grainger, Katherine Jane Awarding institution: King's College London The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without proper acknowledgement. END USER LICENCE AGREEMENT Unless another licence is stated on the immediately following page this work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International licence. https://creativecommons.org/licenses/by-nc-nd/4.0/ You are free to copy, distribute and transmit the work Under the following conditions: Attribution: You must attribute the work in the manner specified by the author (but not in any way that suggests that they endorse you or your use of the work). Non Commercial: You may not use this work for commercial purposes. No Derivative Works - You may not alter, transform, or build upon this work. Any of these conditions can be waived if you receive permission from the author. Your fair dealings and other rights are in no way affected by the above. Take down policy If you believe that this document breaches copyright please contact [email protected] providing details, and we will remove access to the work immediately and investigate your claim. Download date: 30. Sep. 2021 The Whole Life Order: its genesis; the challenges it both poses and faces; and its uncertain future Katherine J Grainger The Dickson Poon School of Law King’s College University of London Submitted for the degree of Doctor Of Philosophy 1 ABSTRACT The whole life order was introduced in the Criminal Justice Act 2003 as the most severe penalty available to the judiciary in England and Wales. It is imposed on very few offenders: only those convicted of crimes of ‘exceptionally high seriousness’. Uniquely, on the grounds of retribution and deterrence alone, those sentenced face life-long incarceration, with no review and therefore no possibility of release. In the study, written sources, primary and secondary, are complemented by interviews with key elite respondents. The sentence’s genesis and the challenges it poses both to those serving it and to prison authorities are explored. The context, mainly the 1980s and 1990s, reflects a changing landscape in criminal justice: increasing stress on crime control, public safety, victims’ rights and on the interaction of the media, the public and politicians. The period also witnesses continuing judicial-executive tension and the growing reliance on the ECHR by defence counsel. The study examines the many challenges to the whole life order’s legitimacy, culminating in the most serious: Vinter, Bamber and Moore at the ECtHR. The sentence’s survival is at risk and the issues involved in the potential broadening of the penological justifications to take into account proportionality, public safety or rehabilitation are considered. Any of which, it is argued, would require a review mechanism. The legal and political constraints the government would face in identifying any necessary replacement are examined. Hope emerges as a significant issue, both in court appeals and to many respondents. Indeed, the whole life order is a sentence apart in removing not only liberty but also hope from those serving it. Despite the sentence being the country’s ‘ultimate’ legal punishment, there is surprisingly limited evidence of academic or political scrutiny of public understanding of its penological justification or of the practical and ethical issues surrounding it. 2 ACKNOWLEDGEMENTS First and foremost, I would like to thank my supervisor Professor Elaine Player for all her invaluable advice, encouragement and support. She not only had the responsibility of being sole supervisor for a vast majority of my studying but had to work with a student whose life was totally dominated by a full time commitment to professional sport. I suspect a great deal of patience was required and a more unusual approach to supervising, as normal patterns of studying were completely impossible. I am, therefore, very grateful to Professor Player for being so accommodating. Within King’s College I have received a wealth of support. I’d like to thank Rob Allen who worked with me as a second supervisor when he was at the International Centre for Prison Studies. Rob was unfailingly supportive with an infectious enthusiasm for his subject. Professor Ben Bowling has been my second supervisor in the latter stages of my work and his open and welcoming manner has made him accessible and available from the first day I arrived at King’s College. Professor Jeremy Horder and Lord Phillips generously let me pick their brains on several issues, resulting in fascinating discussions. Professor Penny Green and Dr Cian Murphy have also shown a wonderful level of understanding throughout my time at King’s. Annette Lee and Lindsey McBrayne in the office have helped me in more ways than they could imagine with their unnerving ability to know the answers to every problem and Julie Francis guided me when submission was finally in sight. Thank you to Principal Rick Trainor and his wife Marguerite for showing unbridled enthusiasm for both my academic and sporting interests. To those who agreed to be interviewed by me for this study or who gave information in written form, I owe a huge debt of gratitude. Without exception, they gave generously of their time and their views. Every interview was informative, thought provoking and also extremely enjoyable. Special thanks are due to Jeremy Bamber for his regular correspondence, allowing me insights that I could not have gained otherwise. I am especially indebted to Di Ellis, Colin Moynihan, Simon Nurney, Sandy Nairne, Bill Park, Russell Allen and Jeff Willmore who helped with introductions, which allowed me to make contact with many of the respondents. Respondents’ personal assistants and secretaries are also due a huge thank you for helping to make the challenging logistics possible. Those who in particular seemed to work miracles facilitating access were Helen Tyler and Julia Gibby. Thank you to Annie Leech who advised me on communications with the prison service and humorously empathised when things were 3 not progressing. Thanks also to Tom Price who helped with my applications to NOMS. Dr Iain Reid and Dr Rachel Quarrel were generous with their advice when it came to writing up. In addition there are many people to thank for keeping me on an even keel throughout the process. Thank you to my sisters, Sarah and Steph, who kept me sane with their constant support, reassurance and belief. To Cath, a thank you for taking time from motherhood to provide the almost daily, powerful back up as I saw the finish line approaching. To Paul, thank you for understanding my academic commitments and for keeping on eye on all approaching deadlines. Anna and Beth are owed a wealth of gratitude for keeping me well stocked up on tea and snacks during long studying sessions while on training camp. And to Ash and Sarah who provided me with endless coffee and sanity breaks over the years. Thank you to Pam and Derek who looked after me with an open door and BBQs in the summer and wine in the winter. And thank you to Dr Mowbray who thought this would be a great idea in the first place. But I could not have completed this study without the unfailing and unconditional moral support of my mum and dad. They have shown limitless love, encouragement and positivity throughout, even when things looked bleak. In addition they, along with my Auntie Maureen, displayed a heroic attention to detail in proof-reading my work. Their support and guidance has been priceless and the words ‘thank you’ would never suffice. I promise you’ll get great presents when Christmas rolls around! 4 CONTENTS 1 Introduction and methodology 1.1 Introduction 9 1.2 Research questions and research design 12 1.3 The research journey 1.3.1 Initial stages: historical research 13 1.3.2 The necessity to ‘adapt’ and ‘adjust’ 17 1.3.3 Interviewing throughout the research process 19 1.3.4 The research questions revisited 23 1.4 The study outline 24 1.5 Conclusion 26 2 The state penalty for murder to 1997 2.1 Introduction 27 2.2 The death penalty 2.2.1 Changes to the death penalty to 1931 29 2.2.2 Parliamentary moves to abolish the death penalty 30 2.3 The mandatory life sentence 36 2.4 The role of the Home Secretary to 1983 41 2.5 Effects of Brittan’s Statement 1983-1990 44 2.6 The Criminal Justice Act 1991 47 2.7 Reaction against the Criminal Justice Act 1991 49 3 Decisive challenges to the Home Secretary’s powers 3.1 New Labour and the power of the media 52 3.2 Steps to restrict the powers of the Home Secretary 56 3.3 Detention during Her Majesty’s Pleasure: V & T [1997] UKHL 25; [1999] ECHR 171 60 3.4 The power of the Home Secretary to increase tariffs: Pierson [1997] UKHL 37 62 3.5 Ministerial response 63 3.6 Hindley [2000] UKHL 21 64 3.7 Stafford [1998] UKHL 30; [2002] ECHR 470 66 3.8 Anderson [2002] UKHL 46 69 4 The Criminal Justice Act 2003 4.1 The penological context 72 4.2 Context and origins of the Criminal Justice Bill 2002 76 4.3 Passage of the Criminal Justice Bill through Parliament 4.3.1 The House of Commons 80 4.3.2 The House of Lords 84 4.4 The rush to pass the Act and initial reaction 88 4.5 Commentary on the Act 90 4.6 The effects of the Act relating to the whole life order 92 5 5 Punishing