the hardest case of all: myra hindley, life sentences, and the rule of law

International Journal of the Sociology of Law (2000), 28, 273^289doi:10.1006/ijsl.1999.0125, available online at http://www.idealibrary.com on

The Hardest Case of All:Myra Hindley, Life Sentences,and the Rule of Law

J. M. SCHONECentre for Comparative Criminology and Criminal Justice, University of Wales,Bangor, U.K.

Introduction

Myra Hindley is still in prison 33 years after her conviction for twomurders perpetrated with her lover, lan Brady. These crimes, known asthe ‘Moors Murders’ are deeply embedded in the collective consciousnessof our society and it is no exaggeration to say that Hindley is popularlyconsidered to be the embodiment of evil. Over the last 5 years she hasmounted legal challenges to the Home Secretary’s right to determine thelength of her detention. In this paper we argue that this single ‘hardcase’ has had an irrevocable e¡ect on penal policy in the United Kingdom.Our thesis is that as Hindley has mounted these challenges the positionof the Home Secretary has hardened, in the main because of the politicalimpact of any executive action that could lead to her release. BecauseHindley is a mandatory life prisoner (MLP) her case has had a profoundimpact on the law relating to such prisoners, and has prevented it fromremaining in step with the law relating to discretionary life prisoners (DLP).Furthermore the position of the executive in this matter is now so ¢rmlyentrenched it is highly unlikely that the legal position of the MLP willever change.

As Lord Go¡ pointed out in recent case dealing with anothernotorious murder, (R v. SSHD ex parte Venables [1997] 3 All ER 97) the publicdo not appreciate what a life sentence means [1]. We go further, however,and suggest that the legal position of the life prisoner is often mis-understood and frequently ignored by the academic community. For thatreason we shall begin with an outline of the legal position today, beforeexamining the historical background.We shall then examine the Hindley casein detail.

0194-6595/00/ 040273+17 $35�00/0 # 2000 Academic Press

274 Myra Hindley and the Rule of Law

The Current Structure

There are currently four types of life sentence in English law. They all, how-ever, have one feature in common. That is that once subject to a life sentencethe prisoner is never free of it. He or she can be recalled to prison until theend of his or her life [2].

(1) Mandatory lifeThis sentence is the only permissible in English law following a convictionfor murder. After sentencing the trial judge makes a recommendation asto the period of years the prisoner should serve to satisfy the requirementsof retribution and deterrence (the ‘tari¡ ’). The Lord Chief Justice,England’s senior criminal law judge, then adds his or her comments andrecommendation, if di¡erent from the trial judge. The Home Secretarythen makes the ¢nal decision on the tari¡ ¢gure. Before he does so hemakes his initial view known to the prisoner, and discloses the paperworkon which he is basing his decision. The prisoner can then makerepresentations prior to the ¢nal setting of the tari¡. When the prisonerhas served his tari¡ release on licence is possible, but remains whollywithin the discretion of the Home Secretary. In his decision-making rolehowever the Minister is subject to standard administrative lawrequirements of fairness.

(2) Discretionary lifeAs the name implies this sentence is passed at the discretion of the trialjudge, following conviction of an o¡ence for which life imprisonment isthe maximum. At the sentencing the judge announces the tari¡, which is¢xed at this point. Immediately at expiration of tari¡ the prisoner has anoral hearing to determine whether he is ¢t to be released, the onlyconcern being the risk the prisoner presents to society. The executivebranch of government is not involved, save that the Home Secretary is aparty at this hearing, which has an adversarial format.

(3) Automatic lifeThis was introduced by the Crime (Sentences) Act 1997. It is mandatory,with certain exceptions, following conviction of a second serious violent orsexual o¡ence. It is, however, identical in all other respects to thediscretionary life sentence.

(4) Detention at Her Majesty’s Pleasure (HMP)This is the mandatory sentence passed on under-18s convicted of murder.Following the appeal to the House of Lords by the two boys convicted ofthe murder of James Bulger, R v. SSHD Ex Parte Venables (op cit) the lawwas in some state of confusion, with tari¡ being within the HomeSecretary’s discretion, and release determined following a hearing beforea panel similar to that for DLPs (Livingstone & Owen 1999: 415^418).However, in December 1999 the European Court of Human Rights gavejudgment in the case of the Bulger killers (T v. United Kingdom;V v. United

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Kingdom; The Times: 17 December 1999). Following this the HomeSecretary made an announcement in the House of Commons on 13thMarch that henceforth tari¡s for HMPs would be set by the sentencingjudge, bringing this sentence totally in line with DLPs.

The Genealogy of the Life Sentence

Prior to the 1950s the law in this area was relatively simple, particularly asregards murder, as there was just one sentenceödeath. Any commutation ofthis remained in the gift originally of the monarch and later of the HomeSecretary (Blom-Cooper & Morris 1996). Life imprisonment had also beenthe maximum sentence for many crimes (cf. O¡ences Against the Person Act1861), but it was not until the 1950s that the discretionary life sentence wasdeveloped as a penal technique. As Fitzgerald points out, it was then thatthe judiciary began to use this sentence for the preventative detention of ‘dan-gerous o¡enders’ who had been convicted of serious violent or sexual o¡encescarrying the life sentence (Fitzgerald 1995: 40). In 1965 the death penalty was¢nally abolished and it was in the same period that the English courts beganto lay down the principles that governed the imposing of a discretionary lifesentence. These were generally that the o¡ence was very serious, the defen-dant was unstable and likely to reo¡end, and that the consequences of suchreo¡ending would be especially injurious to the others (R v. Hodgson (1968)52 Cr. App.R. 113).

The abolition of the death penalty was not a smooth process. As Blom-Cooper and Morris point out, moreover, a myth surrounds the process. It ispopularly believed, and according to them untrue, that the retaining of amandatory life sentence for murder was part of a bargain struck when theMurder (Abolition of Death Penalty) 1965 Act was going through Parliament.Whatever the truth of this, it is beyond doubt that the di⁄cult position ofMLPs is a direct consequence of that Act, as there was concern at the timethat the Home Secretary, having the power to release MLPs, would be toolenient and release prisoners on licence too easily. This was why the Act spe-ci¢ed that the incumbent Home Secretary must consult with the trial judgeand the Lord Chief Justice in both setting the tari¡ and deciding on release(Coker & Martin 1985: 14^15). More protection against politically-determinedleniency was provided by the Criminal Justice Act 1967, which established theParole Board, a new body which had the task of examining the ¢tness forrelease of all life sentence prisoners. The power to release remained with theHome Secretary, but in future no release could take place without a priorrecommendation of the Board. It appears overall that in the post-war periodthe focus of attention in penal policy making was the abolition of the deathpenalty. Less thought, however, was given to how the life sentence that re-placed that penalty would be managed.


Over the next 10 years there was little change in the position of life sen-tence prisoners, with the tari¡-setting exercise and decisions on releaseremaining wholly in the realm of executive discretion. Consequently littlewas known about either. In 1979 however, the case of Ex parte St Germain([1979] QB 425), using the medium of judicial review, saw the beginning ofchallenges to this discretion, and the birth of prison law as a body of legaldoctrine. During the 1970s, following from the case of Golder ([1975] 1 EHHR524), prisoners had also begun to challenge the prison authorities in the Eur-opean Court of Human Rights (Wilson 1993).

This movement to have prisoners recognized as individuals with legally en-forceable rights vis a' vis the state reached its apotheosis with the 1983 case ofRaymond v. Honey ([1983] 1 A 1) in which Lord Wilberforce famously remarkedthat ‘‘[a] convicted prisoner, in spite of his imprisonment, retains all civilrights which are not taken away expressly or by necessary implication. . .’’(p. 10). It was also at this time that the Government began to address the issueof life tari¡s and release from prison. Following a rise in public concern at thelevels of violent crime and speci¢c cases in which released prisoners had com-mitted such crimes (Coker & Martin 1985: 29^30), the then Home Secretary,Leon Brittan, issued a policy statement on 30 November 1983 (49 HC O⁄cialReport (6th Series) written answers cols 505^507). The importance of thisstatement was that it was the ¢rst time the tari¡/post-tari¡ divide was o⁄-cially recognized. Of crucial importance for our purposes was the criteriafor decisions made around these two stages. The ¢rst was de¢ned wholly interms of retribution and deterrence and the second wholly in terms of risk.

Brittan’s (1983) policy statement had severe consequences for several prison-ers, and was the subject of a judicial review challenge which eventuallyreached the House of Lords (In re Findlay [1985] AC 318). Focusing wholly onpublic law doctrine however, the court was not minded to interfere. Mattersrested there until 1986 when a challenge was mounted to the Home Secre-tary’s ¢xing of the tari¡ for DLPs (R v. SSHD Ex parte Handscomb [1988] 86Cr.App.R. 59). The Divisional Court in Handscomb was robust in asserting thatfor DLPs the tari¡ should be ¢xed strictly in accordance with the view of thetrial judge. Douglas Hurd, the incumbent Home Secretary, acceded to theview of the judiciary in a policy statement made on 23 July 1987 (120 HCO⁄cial Report (6th series) written answers cols 347^349). However, althoughMLPs had not featured in Handscomb Hurd made it clear that the manage-ment of these prisoners’ sentences would remain ¢rmly in the hand of theexecutive. Furthermore there was now a new element added to the equation.As well as retribution and deterrence, in performing the tari¡-setting exercisethe Home Secretary would in future take into account the ‘‘need to maintainpublic con¢dence in the system of justice’’ (ibid. col. 349).

Meanwhile challenges were being mounted in Europe to the discretionarylife sentence system. In Weeks V v. U.K. ([1988] 10 EHHR 293) the EuropeanCourt of Human Rights examined the procedure for managing discretionary

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life sentences and found it to be wanting. Despite the discretionary life systemnot meeting the U.K.’s obligations under the Convention however, the Gov-ernment did not amend the procedures in question. It was not until anothercase decided against the Government,Thynne v. U.K. ([1990] 13 EHHR 666),that change took place. The applicants in this case had argued that their con-tinued detention post-tari¡ without judicial examination was in breach of theConvention. Following this case Discretionary Lifer Panels were establishedby the Criminal Justice Act 1991.

The CJA 91 also further con¢rmed the power of the Home Secretary toboth set tari¡s and determine release for MLPs, and this was recon¢rmed inthe Crime (Sentences) Act 1997. Legal challenges (Doody v. SSHD [1993] 3 AllER 92, Pierson v. SSHD [1997] 3 All ER 577) continued through the 1990s, anddespite the system for MLPs becoming fairer and more transparent, the diver-gence between the two sentences seemed set.

Myra Hindley’s Case: the Background and the Social andLegal Context

The background

In his judgment of Hindley’s 1997 judicial review application (R v. SSHD ExParte Hindley [1998] QB 751), the Lord Chief Justice makes a whole paragraphof the following: ‘‘These crimes, and the ensuing trial, received intense publi-city, and aroused deep public enmity towards both Brady and the applicant’’(p. 760).

As was made clear in a February 1999 debate in the House of Lords [3],hyperbolic and hysterical press coverage continues to this day (586 HL O⁄-cial Report cols 722^724) and contributes to Hindley’s continued incarcerationdespite her being judged no risk. The coverage tends to use terms like ‘evilmonster’ (ibid.) and feature a photograph of Hindley taken on arrest whichno one who has lived in the U.K. in the last 30 years could fail to recognize.

The murders that formed the basis of the case were committed in Manche-ster between 1963 and 1965. Hindley was convicted of two murders and beingan accomplice in a third; Brady was convicted of all three murders, and lo-cally, feelings still run high. As one ‘investigative biography’ put it, the casehas ‘‘eaten into the soul of a whole city’’ (Ritchie 1991; 262). Hindley hasachieved iconic status in popular culture as well. One of the most popularrock groups of the 1980s, The Smiths, who were also from Manchester,recorded a song based on the crimes, ‘‘Su¡er the Little Children’’. In 1997outrage was caused by the exhibiting of a facsimile of Hindley’s arrest photo-graph constructed from childrens’ handprints at London’s Royal Academy,and two men were arrested after throwing ink and eggs at the work. Numer-ous web sites with ‘chat pages’ devoted to the topic now exist (see for example


http://lawlounge.com) and one of the country’s leading market researchcompanies, MORI, even conducted a poll about her continued incarcerationon the eve of her ¢rst judicial review challenge [4].

It is di⁄cult for anyone not resident in the U.K. to fully appreciate the im-pact that the case has had. Historically the murders happened at the dawningof a new age; a young Labour Government had been elected, the Beatles hadarrived, and the permissiveness of the ‘swinging sixties’ had supplanted thegreyness of the austere 1950s. As we have seen, the death penalty was abol-ished at precisely the time of Brady and Hindley’s arrest. The continuing im-pact of the case was assured by Hindley’s 1987 admission of complicity in themurder of three other children, and her and Brady’s separate visit to theMoors to point out possible grave sites. It is no exaggeration to say that thee¡orts of the media to secure photographs and the police response to thesee¡orts took on the appearance of military operations. Moreover, as Bradyhas now been removed to a secure mental hospital (and has made it clear hewishes never to be released) public interest has been focused almost entirelyon Hindley. This has resulted in some grotesque occurrences, particularly theappearance of AnnWest, the mother of a victim, at London’s High Court forthe Divisional Court hearing. MsWest, su¡ering from cancer and with weeksto live, arrived in a wheelchair and was invited to sit at the front of the courtby the Lord Chief Justice. She later gave an interview to the BBC (broadcast18 December 1997) in which she blamed the stress and strain of the case forher fatal illness. She also accused supporters of Myra Hindley of desecratingher daughter’s grave.

The social and legal context

We saw above how by the mid-1990s the positions of the two life sentences,mandatory and discretionary, were diverging. Factors other than legal chal-lenges to the management of life sentences contributed to this however. In Feb-ruary 1993 two 10-year-olds abducted 2-year-old James Bulger from a shoppingcentre in Liverpool and tortured and killed him. This sparked a national de-bate about crime and punishment [5]. As Ashworth & Hough (1996) put it,following the Bulger killing ‘‘there was close media attention to several crimesthat would hardly have been reported at other times’’ (p. 783). It was also inthis year that Michael Howard, the incumbent Home Secretary embarked ona crusade that ¢ts Bottoms’ (1995) model of ‘populist punitiveness’ (1995: 39).At the Conservative Party Conference in October 1993 he declared that ‘pris-on works’ and announced a programme of more punitive regimes in prisonand a backtracking on the sentence liberalizing provisions of the CJA 1991.

In the same year, the case of Doody saw a major victory for MLPs. TheHouse of Lords was robust in declaring that the Home Secretary must actfairly in managing mandatory life sentences, ¢nding that ‘‘having regard to

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the rights which discretionary life prisoners have’’ (op. cit. p. 94), MLPs wereentitled to certain rights. These included in particular the right to know thereasons for the Home Secretary’s departing from the judicial recommendationon tari¡ and disclosure of the documents on which the decision was based. AMLP was also entitled from this point forward to make representations beforethe ¢nal tari¡ was set. The court in Doody however stopped short of judicializ-ing the tari¡-setting process. On the contrary, they held that not only was the¢nal decision on tari¡ the Home Secretary’s, but also that he ‘‘is compelled,or at least entitled, to have regard to broader considerations of a public char-acter than those which apply to an ordinary sentencing function’’ (p. 105).

In reaching this conclusion the court examined a policy statement by aJunior Minister, Angela Rumbold (195 HC O⁄cial Report (6th series) cols309^310). This had reiterated Douglas Hurd’s 1987 policy statement but nowthe issue of the post-tari¡ release of the MLP had been con£ated with thatof tari¡ setting. After making it clear that the MLP had forfeited ‘‘his libertyto the state for the rest of his days’’ she went on:

The presumption is, therefore, that the o¡ender should remain in custodyuntil and unless the Home Secretary concludes that the public interest isbetter served by the prisoner’s release than by his continued detention. Inexercising his continued discretion in that respect, the Home Secretarymust take account, not just of the question of risk, but of how society asa whole would view the prisoner’s release at that juncture

Following Doody, Michael Howard made his response in Parliament on 27 July1993 (299 HC O⁄cial Report (6th series) written answers cols 861^864), ac-cepting the court’s ruling and giving e¡ect to their decision. He went furtherhowever; he adopted the view of Angela Rumbold and expanded itöafterquoting the above verbatim he added at the end ‘‘The Home Secretary takesaccount of the judicial recommendation, but the ¢nal decision is his’’ (ibid.).There was more; henceforth the tari¡ set at the beginning of an MLP’s sen-tence was no more than an ‘initial view’ and it was open to a Home Secretaryto revise it upwards or downwards.

Understandably, a legal challenge to this was immediately mounted, ¢nallyreaching the House of Lords in July 1997. In Pierson v. SSHD (op. cit.) thecourt, despite con£icting speeches, held that the tari¡-setting exercise wasanalogous to a sentencing exercise. As Lord Steyn put it: ‘‘The undeniable factis that in ¢xing a tari¡ in an individual case the Home Secretary is making adecision about the punishment of a convicted man’’.

In reaching its decision the House of Lords relied on an earlier case, that ofthe convicted killers of James Bulger (Ex parte Venables, op. cit.). There thecourt had decided that in the case of HMPs the Home Secretary must be£exible in the exercise of his tari¡-setting powers, to take account of the wel-fare of the young person and the considerable change that takes place in themove from boyhood to manhood. Despite the inroads into the discretionary


power the Home Secretary wielded, the fundamentals of mandatory life sen-tence managementötari¡-setting and decision on releaseöremained whollywith the executive. In May 1997 the Labour Party was elected to power witha huge majority. One of the platforms on which they stood was e¡ectively acontinuation of Michael Howard’s populist punitive policies. Certainly whenit came to the response to the judgment in Pierson, Jack Straw, the new HomeSecretary, was not prepared to give very much. He held on to the principlethat the ¢rst tari¡ set for an MLP was an ‘initial’ view, and emphasized thata tari¡ may be altered upwards or downwards at a later date. There was,however, a slight shift in emphasis. First, there was a clearer divide betweentari¡-setting and release on licence. The ¢rst would be done by reference onlyto retribution and deterrence, the latter by reference to risk and the ‘‘need tomaintain public con¢dence in the system of criminal justice’’ (10 November1997, Hansard (HC Debates) cols 419^420: written answer). Second, tari¡s,once set, would only be altered in ‘exceptional circumstances’ and this wouldinclude the possibility of a reduction because of ‘exceptional progress’ bythe prisoner. This was something that Michael Howard was not prepared toconcede.

Myra Hindley’s Case: the Judicial Review Challenges

As we have seen, Myra Hindley was sentenced to life when the concept ofa properly managed, legally structured life sentence was in its infancy. Theoriginal trial judge made no formal recommendation as to tari¡. He didhowever write to the Home Secretary after passing sentence, and the originalletter was reproduced in the judgment of Hindley’s ¢rst judicial review chal-lenge, R v. SSHD ex parte Hindley (op. cit.). This document is remarkable for itsambiguity. Thus, he initially states that there was no recommendation made‘‘[i]n passing sentence because the only possible one would have been at thatstage that neither of them would have been set free again’’ (p. 760). Yet hefollows this with remarks about Hindley not being beyond redemption, andthen measures her incarceration against Brady’s:

I hope Brady will not be released in any foreseeable future . . . and thatHindley (apart from some dramatic conversion) will be kept in prison fora very long time . . . I do not claim su⁄cient prophetic insight to ventureto suggest any term of years (ibid.).

Apart from the clear indication that the trial judge was thinking at leastalong the lines of eventual release, one other matter to re£ect on when exam-ining this letter is Hindley’s degree of culpability, a focus point for her cam-paigners. Thus, Fenton Atkinson’s letter remarks on the possibility of Hindley’sredemption once she is ‘‘removed from his in£uence’’, an in£uence which has‘‘deeply corrupted’’ her. This was also the basis on which the Crown presented

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the case at trial. As Bingham LCJ puts it: ‘‘Brady was the initiator of thesecrimes, and the actual killer; the applicant was cast as his willing accomplice,corrupted and dominated by him’’.

Because of the early, haphazard management of mandatory lifesentences and the secrecy that surrounded it Hindley knew nothing of hertari¡ until December 1994. She was then informed that in July 1990 adecision was made to detain her for life. She was also told that in January1985 a decision to set her tari¡ ‘initially’ at 30 years had been taken.This information became known to her lawyers only as a result of the£ood of documents that were released under the new disclosure rules follow-ing Doody. In December 1994 the incumbent Home Secretary, MichaelHoward, gave de facto recognition to the ‘whole life tari¡ ’ (Hansard(H.C.) Debates: written answers, cols 234^235). He made it clear thatalthough he would review the detention of such prisoners after 25 years,with a view to considering whether to convert it to a determinate period,the only consideration was whether the requirements of retribution anddeterrence had been met. This meant of course that any progress a prisonerwould make was not a consideration. Re£ecting on Fenton Atkinson J’s re-marks about ‘redemption’ it is easy to see how Hindley was disadvantagedby this policy.

As a result of an invitation to do so from Michael Howard, lawyersfor Hindley made representations as to why she should be given adeterminate tari¡. His response in February 1997 was to con¢rm the wholelife tari¡, a decision that formed the basis of the judicial review challenge.This focused on two issues, the lawfulness of the whole life tari¡ itself andthe refusal to take into account factors other than retribution and deterrencein considering a tari¡ conversion from whole life to a determinate period.In the court of ¢rst instance in December 1997 the application was successfulon the second point and failed on the ¢rst. Events had however overtakenthe legal process. As we saw above (p. 112) there was a new incumbentHome Secretary, Jack Straw, who had announced a change in policy followingPierson:

So far as the potential for a reduction in tari¡ is concerned, I shall beopen to the possibility that, in exceptional circumstances, including forexample exceptional progress by the prisoner whilst in custody, a reviewand reduction of the tari¡ may be appropriate (op. cit.).

The court then found that Michael Howard’s policy on this point had beenunlawful, but that had been e¡ectively remedied by Straw’s new policy.

Nearly a year later the Court of Appeal considered that matter again. Onceagain it was found that a whole life tari¡ was not unlawful. It is clear fromreading the judgment that the case is one that the senior judiciary founddeeply troubling. First, the court made it clear that their brief extended no


further than the legality of the decision-making process. As Lord Woolf MRput it:

It is not part of our function to decide whether the applicant should bereleased from prison, or whether she should remain in prison; or, if sheis to remain in prison, to decide how long she should remain in prison(p. 1258).

This was of course a given, in doctrinal terms at least, as this was a judicialreview challenge. It is signi¢cant, however, that Woolf felt it necessary topoint this out. Woolf was also concerned about the whole life tari¡, ¢ndingit conceptually dubious. His solution was to re-cast it as a ‘non-life tari¡ ’, aspecies of indeterminate sentence that, whilst an exception to the normal pol-icy for MLPs, is not by virtue of its exceptional nature unlawful.

There were further problems for the Court of Appeal; in both the case ofVenables and Pierson the House of Lords had indicated, albeit in a confusingmanner, that the ¢xing of an MLPs tari¡ was the exercising of a function thatwas analogous to sentencing. Furthermore, the Lords ruled that there was nogeneral power vested in the Home Secretary to increase a tari¡ once lawfully¢xed and communicated to the prisoner. However, this was to be seen purelyin administrative law termsöin other words the test would be restricted towhether or not there was any abuse of process or unfairness in the procedure.The di⁄culty for Myra Hindley (and the courts) was that there had been atari¡, ¢xed at 30 years. This, however, was ¢xed in January 1985, before pris-oners had access to such information. Furthermore the Home Secretary wasapparently, only drawing a ‘provisional conclusion’ in deciding on this ¢gure.The provisional nature of the tari¡ and the fact that it had not been commu-nicated to Hindley resulted in her appeal failing.

The case ¢nally reached the House of Lords in February 2000, with judg-ment given on 30 March 2000 (R v. Secretary of State for the Home Department Exparte Hindley,TheTimes: 31 March 2000). The appeal focused on two issues: thegeneral point of the unlawfulness of whole life tari¡s, and the speci¢c point ofthe unlawfulness of the treatment of Hindley. The court chose once again tosee the issue as simply one of administrative law doctrine, ¢nding nothingunlawful either in the concept of a whole life tari¡, nor in its use in this case.

Asking the Jurisprudential Question

At the heart of the Myra Hindley case lies a question that is fundamentalto jurisprudence. In outlining how the city states of Ancient Greece wereformed, David Cohen emphasizes the importance of the nascent legalinstitutions:

Henceforth, citizens may not pursue private vengeance for wrongsdone to them, but must bring their case before the representatives of

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the polis and submit to its judgment. The principle of blood vengeance. . . is transformed and incorporated within the new framework of civicinstitutions where it will help to preserve Athens from enemieswithin and without. Legal process triumphs over private violence (Cohen1987: 3).

For constitutional lawyers the rule of law is fundamental. We argue that thetriumph of legal process over private vengeance is the purest representation ofthe rule of law, as it was originally formulatedöas the rule of law, not men.In this form it implies a dispassion that transcends the thirst for blood thatfollows horrendous crimes.

The Hindley case also starkly illustrates the wider, and problematic, rela-tionship between the executive and the judiciary, an issue the judiciary haveshown themselves to be well aware of in cases involving life sentence prison-ers. As just one example, the doctrine of the separation of powers, notwith-standing its dubious position in the U.K.’s constitutional arrangement, wasused by Lord Steyn in the Venables case to justify his ¢ndings: as he puts it,because the Home Secretary is carrying out a judicial function, which is‘‘[c]ontrary to the constitutional principle of the separation of powers’’ hemust ‘‘[n]ot act contrary to the fundamental principles governing the admin-istration of justice’’ (op. cit.: p. 147).

As every ¢rst-year law student knows, Dicey (1968) saw the rule of law asone of the twin peaks of our constitution, along with Parliamentary supre-macy. As he put it:

By every path we come round to the same conclusion, that Parliamentarysovereignty has favoured the rule of law, and that supremacy of the law ofthe land both calls forth the exertion of parliamentary sovereignty, andleads to it being exercised in a spirit of legality (p. 414).

Extending our argument about the rule of law then, we contend thatconstraining capriciousness is fundamental to ensuring that such sovereignty,in this case represented as executive discretion, is ‘‘exercised in the spirit oflegality’’.

The further di⁄culty which the Hindley case encapsulates is that withlife sentence prisoners, and MLPs in particular, we are, whether we acknowl-edge it or not, dealing with punishment. Thus, the lawyers for Hindley,as in Pierson’s earlier cases, tried to argue that it is fundamental to the com-mon law that punishment should not be enhanced retrospectively,that the judiciary should accept as a principle the concept of ‘‘non-aggrava-tion of penalties’’. This they were not willing to do, preferring to staywithin the parameters of public law doctrine, a re£ection perhaps of ageneral desire not to stray into the territory of executive discretion. This willundoubtedly remain so, as long as judicial review remains the only means by


which MLPs can challenge the tari¡-setting exercise. As Lord Mustill put itin Doody:

I think it is quite impossible for the courts to introduce a fundamentalchange to the relationship between the convicted murderer and the state,through the medium of judicial review (p. 105).

Conclusion and Comparisons

It is an axiom of our legal system that ‘hard cases make bad law’. We arguethat not only is this correct, but also that we can extend this to take accountof ‘hard’ as meaning rock-like, impenetrable. Certainly this is an apt meta-phor for the Hindley case, as despite all the advances in judicializing the lifesentence process, when the courts butt up against this case there is no furthermovement. Regardless of the rhetoric, the courts know that the real issue isnot before them. This was acknowledged in a refreshingly candid way byBingham LCJ in the Divisional Court.

This application is of great importance to the applicant as also to thosewho continue to su¡er from her crimes. But I part from the case uneasilyconscious that the issues which may really underlie the case are not beforeus. There is room for serious debate whether the task of determining howlong convicted murderers should serve in prison as punishment for theircrimes should be undertaken by the judiciary (as in the case of discretion-ary life prisoners) or, as now, by the executive. That is, in large measure,a political and constitutional question. It is not a question for decision bythis court. The applicant clearly feels that she is held hostage to publicopinion, condemned to pass the rest of her life in prison, although nolonger judged a danger to anyone, because of her notoriety and the publicobloquy which would fall on any Home Secretary who ordered herrelease (p. 779).

A further problem with Hindley’s case is also illustrated by this passage;Bingham is quite correct to say that any Home Secretary would su¡er publicobloquy for releasing Hindley, although ‘committing political suicide’ wouldperhaps be more apt. This has meant, we suggest, that the position of allMLPs, some 3000, will remain the same, as any Government that changedits stance on MLPs would automatically be pilloried as those who ‘let MyraHindley out of prison’ [6]. When one contrasts the position of MLPs withDLPs, moreover, a great irony is apparent. As was pointed out in the citedparliamentary debate in the House of Lords, MLPs di¡er greatly in terms ofthe nature of their crime, and some could never be said to be terribly danger-ous (op. cit. cols 283^304). With the case of mercy killers, indeed, one couldargue that they would even be viewed as sympathetic characters. The samecould not be said of DLPs who usually have committed extremely nastycrimes. Yet the current position means that all murderers are treatedthe same, and are subject to a quotient of punishment that is ultimately

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politically-determined.With the recent total judicializing of the HMP processmoreover (above p. 3) the ¢nal block to equalizing all life sentences has beenremoved, as the mandatory life sentence is now unique in this country in hav-ing executive involvement.

It appears that there is no hope from Europe either; despite the interven-tion of the European Court of Human Rights on behalf of DLPs (Thynne v.U.K. op. cit.) and HMPs (Singh v. U.K. (1996) 1 BHRC 119:T v. U.K.: Vv. U.K.op. cit.) they have shown themselves unwilling to similarly intervene on behalfof MLPs. InWynne v. U.K. ([1997] 19 EHRR 333) a clear distinction betweenDLPs and MLPs was drawn by the court. For them, the two sentences are notto be viewed as the same, as they serve di¡erent purposes, and are informedby di¡erent philosophies [7]. Essentially they saw the discretionary life sen-tence as a unique punitive measure tailored to the characteristics of the o¡en-der, whereas the mandatory life sentence was ¢xed by law as a re£ection ofthe peculiar opprobrium with which our society views the murderer. Yet anexamination of Western European legal systems reveals not a single jurisdic-tion that has an equivalent arbitrarily assigned tari¡ for the life sentence(McGeorge 1990). Even Russia, in its abolishing the death penalty as part ofits e¡ort to join the Council of Europe has decided on constructing its new lifesentence with a ¢xed 25-year penal period (Moscow Center for PrisonReform 1998).

In an earlier article (Schone 1999) we called for more international aca-demic research into punishment from a prison law perspective, as this enablesa clearer ‘reading’ of penal policy. We echo this with our analysis of the cur-rent structure of the mandatory life sentence. Such research as there is thatdeals with the topic tends to do so obliquely, usually by reference to the sen-tencing of violent o¡enders (Henham 1993; Fitzgerald 1995). One of the di⁄-culties is that as an object of study, life sentence structures is the naturalpreserve of criminal justice, the blending of criminology and law. As a subjectit falls between public law, criminal law, and the half-discipline sentencinglaw, yet not being wholly subsumed under any of these headings the indivi-duals who seek the law’s protection lack full juridical guard. This is particu-larly why more international work is needed, to bolster the argument thatMLPs in the U.K. are in a legally unfortunate and morally unsustainableposition.

In summary, as lawyers challenged the extent of executive discretion in re-lation to life sentence prisoners here and in Europe there was a divergencebetween discretionary and mandatory sentences, with DLPs accumulating apanoply of positive rights in what became an entirely judicial process. MLPsby contrast, although they gained some rights, still have their tari¡s deter-mined by the executive. Myra Hindley’s case exempli¢es the di⁄culties oflaw growing organically in the fashion that the law relating to life sentenceprisoners has in this country, as whilst there is a murderer who has becomean icon of evil through constant press damnation there is little chance of


aggressive judicial intervention. Furthermore, the Hindley case raises funda-mental issues about the rule of law and the nature of punishment in our so-ciety. In strict doctrinal terms the courts’ decisions in Hindley may have beencorrect. The fact is that, dress it up as you may, the indication and expecta-tion at Hindley’s sentencing and for at least 20 years afterwards was that shewould eventually be released. It should make no di¡erence that it was notcommunicated to her. Leaving aside the public opinion point, she is essen-tially being detained as a result of a historical accident, for there is no doubtthat had the 30-year ‘provisional’ tari¡ been communicated to her in 1985things would have been di¡erent, notwithstanding her 1987 confession offurther murders. We argue further that the setting of a tari¡ is a sentencingexercise, despite the protestations of some members of the judiciary. It is alsonot enough to argue, as Lord Woolf does rather weakly, that the courts’ deci-sion will have no e¡ect on Hindley’s eventual release date. It is clear that thetwo killers of Jamie Bulger will eventually be released, particularly now astheir tari¡ is to be set by the Lord Chief Justice [8]. The complete judicializa-tion of the HMP sentence is a demonstration of the dramatic impact that con-demnatory comment from the judiciary can have upon the executive.

Following Venables, HMPs no longer have their tari¡s determined by thosewhose livelihood depends upon the public’s view. This is, we argue, entirely asit should be, for it removes by one step the punishing of the individual fromthose who wish to wreak vengeance. If Venables demonstrates only one thing itis that hard cases do not necessarily make bad law. There is no reason whythere cannot be a system with one entirely judicialized life sentence, whethermandatory or discretionary at point of imposition. In an editorial comment inthe Criminal Law Review (1996, p. 609), as Pierson and Venables were wendingtheir way through the courts, the position of the Home Secretary vis a' visMLPs was referred to as ‘Canute-like’. This may have been an apt metaphorat the time, but as the Hindley case has progressed the ‘line in the sand’ isperhaps more ¢tting, as one detects a sense amongst the senior judiciary of‘this far and no further’.

Myra Hindley’s case is the point at which this line has been drawn, wesuggest. There is a fundamental unfairness to her case as she has been e¡ec-tively re-sentenced, and, as Hobhouse L.J. pointed out, when the Venables casewas heard in the Court of Appeal ‘‘The sentence is passed having regard tothe state of a¡airs existing at the time sentence is passed’’ (1997 1 All ER 327^355). The concept of a tari¡ barely existed at the time Hindley was sentenced,and as we have seen Lord Woolf was profoundly uncomfortable with thenotion of a ‘whole life tari¡ ’, a penal construct that post-dated Hindley’s sen-tencing by over two decades. There is a wider concern however. AsTRS Allan(1999), a leading theorist of the rule of law points out:

At the core of the liberal ideal of a government of laws, and not of men, isthe conviction that the state’s interference with the liberty or property of

J. M. Schone 287

individuals must be regulated by general laws, whose purpose are direc-ted to some aspect of the common good and are not designed speci¢callyto a¡ect the circumstances of particular, identi¢able persons (p. 222).

We could hardly have a more startling representation then of the undermin-ing of the rule of law than a penal policy that is ¢xed at a certain point as aconsequence of one individual case. Furthermore, although there is vagueauthority in English Law for the notion that public opinion has a place insentencing (R v. Sargeant [1974] 60 Cr.App.R. 74) [9] it is unjust and venturingon the obscene to equate tabloid press-engendered opinion with the ‘commongood’. This was stated in the clearest terms by Lord Steyn in Venables:

Plainly a sentencing judge must ignore a newspaper campaign designed toencourage him to increase a particular sentence. It would be an abdica-tion of the rule of law for a judge to take into account such matters. Thesame reasoning must apply to the Home Secretary when he is exercising asentencing function (op. cit. p. 147).

With the Hindley case, the hardest of hard cases, there is an abdication of therule of law. The announcement that henceforth all HMPs will have their tar-i¡ decided by the judiciary, notwithstanding its impact upon the case of theBulger killers, passed without major incident, and was even met with ap-proval in some quarters [10]. Following this there is now no reason why thegovernment could not announce that MLPs should likewise have their tari¡sdecided by the judiciary. Should they do so, they would not only ¢nally recti-fy an anomaly in our legal system that is the result of nothing more than ahistorical accident, but would, more importantly, reassert the importance ofthe rule of law in our constitution.

Notes

1 p. 114 of the judgment. Referring to the media campaign to keep the killers ofJames Bulger in prison for life, he states ‘‘Little credit can be given to favourableresponses to a campaign that the two applicants should rot ‘in jail’ for the rest oftheir lives, especially when it is borne in mind that those who responded maywell have been unaware that, even after the penal element in their sentenceshad been served, their release would not be automatic. . .’’.

2 As this paper is concerned with the punishment aspect of the life sentence weshall not be examining the recall procedure. In terms of this procedure there isno real di¡erence between the various types of life sentence. See Livingstone &Owen (1999: ch. 13, 14).

3 Some confusion may arise here. The House of Lords has two constitutional func-tions. It is the upper chamber of the United Kingdom’s Parliament, and is alsothe highest court in the land. It should be clear from the context to which we arereferring.


4 cf.http://www.mori.com/polls/1997/hindley.htm. The upshot of the poll was thattwo-thirds disagreed with the view that they should respect the Home Secre-tary’s decision if he decided to release her.

5 Even the most cursory of searches throws up a series of articles in theBritish press that re£ect this. In particular there was considerable concernexpressed about the criminal justice system. Two cases in particular seemed toinspire adverse commentary. One was the dropping of charges against acouple suspected of cruetly against their child, who later died. They had bothremained silent in the face of police questioning. See ‘‘Child’s death exposeslegal £aw’’ (The Guardian: 16 January 1993). In July of that year Joseph Elliottwas acquitted of the murder of Robert Osborne. Osborne was stabbed byElliott when he confronted him for committing criminal damage, andElliott successfully pleaded self-defence at his trial. See ‘‘Vigilante’s stabbingprompts self-defence study’’ (The Guardian: 15 July 1993). There were alsowider concerns expressed about a perceived increase in vigilantism and ‘DIYjustice’ (see the article by Ian McKenzie, a former police o⁄cer in TheGuardian on the same day). In addition cases like that of Beverley Allitt,convicted in May 1993 of the murder of children in her care, caused considerableconcern at the state of statutory provisions for the supervision of the mentallyill. See ‘‘Mentally ill people kill 32 in a year, study ¢nds’’ (The Independent:14 August 1993).

6 This is illustrated by remarks made by Lord Longford in the cited debate in theHouse of Lords: ‘‘I am not surprised that people in this house and elsewhere sayto me, ‘I agree with you, my dear chap. Of course after all these years she oughtto come out. But you can’t imagine any Home Secretary having the guts to lether out, can you? Think what would happen to him. Think what the tabloidswould do to him.’ This is what many people say to me about tabloid pressure’’(op. cit. col 723).

7 Wynne is still good law, despite the court in Strasbourg ¢nding that the executi-ve’s setting of the tari¡ in HMP cases to be a breach of Article 5�1 and 5�4.T v.U.K.: R V. v. U.K. (above p. 3).

8 In his statement to the House of Commons the Home Secretary stated that thetari¡ in the particular case of Robert Thompson and Jon Venables would bereferred to the Lord Chief Justice for determination.

9 In this case Lawton LJ remarked, whilst outlining the principles that underliesentencing ‘‘There is, however, another aspect of retribution which is frequentlyoverlooked: it is that society, through the courts, must show its abhorrence ofparticular types of crimes, and the only way in which the courts can show thisis by the sentences they pass. The courts do not have to re£ect public opinion.On the other hand the courts must not disregard it. Perhaps the main duty of thecourt is to lead public opinion’’ (p. 77).

10 See ‘‘Mr Straw, it’s time to listen to the courts’’ (TheTimes: 11 April 2000).

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the hardest case of all: myra hindley, life sentences, and the rule of law

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