Ian McLoughlin – no whole life tariff?

Ian McLoughlin – no whole life tariff?

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Introduction

Ian McLoughin, twice previously convicted of killing (once of manslaughter, once of murder) pleaded guilty and was sentenced on 21st October 2013 to a murder committed earlier this year. The tariff was set at 40 years.

Facts 

The facts of the case were brutal – Mr McLoughlin was on day release when he robbed Francis Cory-Wright, an 86 year old man, of various heirlooms, as well as cash cards and PIN numbers. Mr Cory-Wright called out and a neighbour, 66 year old Graham Buck, came to investigate.

Mr McLoughlin then fled the house, bumping into Mr Buck. At that point (seemingly in order to escape) Mr McLoughlin stabbed him in the neck, leaving him for dead.

In 1984, Mr McLoughlin was convicted of manslaughter and sentenced to 8 years. In 1992 he was found guilty of the murder of Peter Halls (by stabbing him in the next during an argument). He was sentenced to life imprisonment with the minimum term then set as 25 years.

Mr McLoughlin, 55, pleaded guilty at the earliest opportunity.

Sentence

The only sentence that Sweeny J could pass is one of life imprisonment. It seems that the only argument would have been about how long the tariff would be.

We have a factsheet as to how a Judge should approach setting a tariff.

Standing alone this was a horrible crime and the sentencing Judge would have been starting at a minimum of 30 years. On the face of it, the starting point here would be a ‘whole life’ tariff, because of Mr McLoughlin’s previous conviction for murder.

So – why was a whole life order not imposed? Here it where it gets interesting (and potentially, very controversial). Apparently the Judge said “that he was barred from passing a whole life term because of a European judgment that those sentences are in breach of human rights“.

The Judge was referring to the recent case of Vinter v UK (our summary and commentary here)

Does ‘Europe’ prevent a whole life tariff?

This is a complicated question. Firstly, even in a case such as this, a whole life tariff isn’t mandatory – a Judge has to weigh up all the circumstances and decide whether : the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high“. If so, then “the appropriate starting point is a whole life order.

We will come back and look at this question later (probably in a separate post) when we have the Judge’s sentencing remarks.

But, I imagine that the reasoning will be along the lines of ‘whether to pass a whole life sentence is discretionary, the ECHR says that that is unlawful, therefore I will exercise my discretion not to pass a whole life tariff’.

It should be noted that what the ECHR said in Vinter was not that whole life tariffs are unlawful, but a system that doesn’t allow for a review after a period of about 25 years is unlawful. From para 119-120 of Vinter:

119. For the foregoing reasons, the Court considers that, in the context of a life sentence, Article 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.

 120. However, the Court would emphasise that, having regard to the margin of appreciation which must be accorded to Contracting States in the matters of criminal justice and sentencing (see paragraphs 104 and 105 above), it is not its task to prescribe the form (executive or judicial) which that review should take. For the same reason, it is not for the Court to determine when that review should take place. This being said, the Court would also observe that the comparative and international law materials before it show clear support for the institution of a dedicated mechanism guaranteeing a review no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter (see paragraphs 117 and 118 above).

What I take that to mean is that an absolute whole life tariff is unlawful under Art 3 (or, as the common law would say, ‘cruel and unusual‘). Someone serving a life sentence must have an opportunity to ask for the opportunity to have the opportunity to be released (if that makes sense).

There are two different ways of reading Vinter. I took it to impose a requirement, after someone has been in prison for about 25 years of a life sentence, that someone (be it the Prisoner Governor, or a Judge, or some other body) needs to look at his case to see if the whole life sentence (or tariff of over 25 years) is still justified when taking everything into account.

Others have read the judgment as saying that this would only apply to whole life tariffs (so that someone in Mr McLoughlin’s position would be worse off having a tariff of 40 years than a whole life tariff, as there is then no opportunity to review the sentence).

What happens next?

Expect a media storm about Europe interfering in ‘our’ criminal justice system and cries of outrage. We will look at that in more detail when we have all the facts.

But the mathematicians among you will note that Mr McGloughlin cannot be released until he is aged 95. Almost none of us will make it to that age, and prisoners tend to be in worse health than most. And this is, of course, the very earliest date that he could be released (most people go ‘past tariff’).

So, in answer to the question ‘why did he not get a life tariff’, the answer, in practical terms, is that he has.

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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

9 COMMENTS

  1. Bad law maybe, but, from the photo, the culprit looks old enough for the theoretical difference between a life-means-life sentence and a 40-years-at-least sentence not to make any practical difference, for the individual who chose to abuse his “day release” change of environment to kill yet again.

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