REVISITING MURDER TARIFFS: MINIMUM TERMS, REVIEWABILITY AND COMPARATIVE LAW

Abstract

Since the enactment of Criminal Justice Act 2003, Sched. 21, the average minimum term for murder in England and Wales has risen by more than 60 per cent. Very lengthy determinate terms are now the norm, subject only, in effect, to the Secretary of State’s discretion to release on compassionate grounds. This article asks whether there should be a mechanism for revisiting such terms, and, if so, on what principles. Although Hutchinson v United Kingdom holds lengthy minimum terms compatible with European Convention on Human Rights, art. 3, it is argued that the principles animating the court’s jurisprudence – shifting penological justifications, the centrality of rehabilitation across Europe and legal clarity – sit uneasily with domestic law. Taking Canada’s former “faint hope” clause as an institutional model, the article imagines a judicial mechanism for late tariff review, separate from parole and calibrated to the gravity of murder.