Murder most foul

Rosemary West has been told she will never be released from prison.

But in murder cases a life behind bars may not always be the proper punishment for the crime, reports Andrew Towler

In the recent trial of Angela Cannings, a 38-year old from Salisbury charged with the murder of her children Jason, aged seven weeks, in 1991 and Matthew, aged 18 weeks, in 1999, Mrs Justice Hallett told Winchester Crown Court that the passing of a life sentence was 'a classic kind of injustice that can be caused by mandatory sentencing'.

Judge Hallett maintained there must have been 'something seriously wrong' with Cannings to commit the murders, but the law only allowed her to pass the mandatory murder sentence of life imprisonment.

But life rarely means a life behind bars, and the Sentencing Advisory Panel (SAP) last month published a proposal that the Court of Appeal should issue guidance for sentencers in the Crown Court on the setting of minimum terms in murder cases.

Currently, murderers serve a tariff recommended by the trial judge that reflects the need for deterrence and retribution.

It is then left to the parole board to decide when they are no longer a risk to society after the tariff has been served.

The average tariff of the 119 adult offenders released during 2000 was 12.6 years; the lowest tariff was seven years (although the offender served ten) and the highest was 30 years (the offender served 31).

The issue of tariffs was last considered in 2000 by the Lord Chief Justice, Lord Woolf, after the ruling by the European Court of Human Rights in the case of Robert Thompson and Jon Venables, who murdered toddler James Bulger, that the home secretary should not be responsible for setting tariffs.

Lord Woolf set a starting point of 14 years, and listed possible aggravating or mitigating factors.

In that year, 336 adults and juveniles were tried for murder; 261 were convicted.

To reflect the wide variety of circumstances in which murder is committed, SAP recommends a 'middle starting point' for judges of 12 years for killings with no significant aggravating or mitigating features.

For cases where the offender's culpability is 'significantly reduced' - such as mercy killings, acts of self-defence or mental disorders - it said a lower starting point of eight or nine years should be set.

At the other end of the scale - such as contract killings, multiple murders and gratuitously violent acts - the higher starting point should be 15 or 16 years.

It also recommended a series of terms for juveniles of different ages, while saying that, for the sake of clarity, the phrase 'minimum term' should replace 'tariff'.

But Franklin Sinclair, a partner in the Manchester office of leading criminal firm Tuckers, and former chairman of the Criminal Law Solicitors Association, says: 'The problem with a mandatory life sentence, is that you quite literally serve the sentence for life.

'Even when you are released, you are on licence for the rest of your life.

You are constantly under supervision, must always report to someone, let them know where you are and keep in contact with your probation officer - it follows you for life.'

Mr Sinclair, who has acted on more than 80 murder cases, says that most are simply assaults gone wrong and few actually involve malicious intent to murder.

'In other crimes where a life sentence is available, such as rape or robbery, its passing is at the discretion of the judge,' he says.

'There shouldn't be an obligatory life sentence, but I don't believe there is the political will to get rid of it.'

These sentiments are shared by Leo Goatley, a sole practitioner from Gloucester, who defended Rosemary West when she was tried for her part in the ten murders at 25 Cromwell Street.

'The sentence doesn't actually address the varying degrees of murder,' he says.

'The crime itself covers a whole host of different situations, but some are more terrible than others.'

Cannings' defence lawyer, William Bache, a partner at Salisbury firm Pye-Smiths, agrees.

'By its very nature murder is committed in widely varying circumstances involving powerful, but different, emotions,' he says.

'Of all crimes, murder is the one to which the broadest latitude should be given to the sentencing judge, but instead we have the current situation.'

Mr Bache reiterates that his client maintains her innocence and says that trying to defend a murder charge can be an increasingly difficult task.

'We were dealing with problems on the frontier of medical science that remain unresolved,' he says of his client's case, in which her children were found dead in their cots.

'I was effectively called on as a defence lawyer to prove my client's innocence by proving the cause of death was not murder, even though it was not scientifically possible to do so.

In practical terms, the burden of proof had been reversed - it was an impossible task.'

Mr Bache says that such circumstances are 'a cause for national concern' as they could lead to a number of erroneous murder charges 'especially if the death occurred many years ago'.

Mr Sinclair also says there are major hurdles for defence lawyers as 'there are not really enough defences available for murder'.

He adds: 'The problem is that because of the mandatory sentencing, there is little incentive to plead guilty to murder, as the tariff is based on the seriousness of the offence,' he says.

'Thus you get lawyers trying to cheat the law to try and avoid people going to prison for life.'

As an example, Mr Sinclair highlights the recently publicised case of Diane Pretty, the woman suffering from motor neurone disease who applied to the courts in vain for permission for her husband to help her die.

She died last weekend.

'If the husband had gone ahead anyway, people would have realised it was murder, but one with a very sympathetic background,' says Mr Sinclair.

'In court, the defence lawyer would no doubt have been involved in a lengthy, expensive trial process trying to prove some element of diminished responsibility and effectively cheat the law.

If the life sentence didn't hang over the verdict, a suitable conclusion could be found and weeks would be saved at the trial.'

Mr Goatley reckons the defence of provocation is also inadequate and difficult to prove.

'A provoked murder must be a spur-of-the-moment act, but this doesn't take into account situations where abuse has built up over many years,' he says.

'Also it isn't taken into account if the offender was abused as a child or is suffering clinical depression.'

Mr Goatley says that certain elements do make the defence easier to prove, such as if the offender is a woman 'because of PMT and post-natal depression' and also the nature of the killing.

'A stab with a knife makes it easier to prove provocation than a strangulation because of the instantaneous nature,' he says.

Rosemary West, who remains Mr Goatley's client, was told by the judge upon sentencing that 'in your case life means life' and received a letter from the then Home Secretary Jack Straw stating there was no intention to release her.

But Mr Goatley contends this is not necessarily the right view.

'Rose West doesn't want to be released and is receiving extensive therapy in prison,' he says.

'But she suffered such terrible physical, sexual and emotional abuse throughout her life from Fred and her family that she had unresolved feelings of deep anger and fear that affected her.'

Mr Goatley says that in the US, there have been studies carried out to determine the levels of a chemical called serotonin in the brains of murderers.

It is medically proven that people with low levels of this chemical are naturally more aggressive, as are some people who have suffered a traumatic head injury at a young age.

'Fred West suffered a motor- cycle accident when he was younger that may have adversely affected him,' says Mr Goatley.

'It is an area worth looking into in the UK.'

Solicitor Simon Massey is a senior Crown prosecutor in Wiltshire and has worked on around 12 murders, including the prosecution of Cannings.

He endeavours to prosecute cases as professionally as possible and not get emotionally involved.

'I have never turned down working on a case and I don't think I would,' he says.

'I am trying to do my job as professionally as possible and I don't get involved in the moral rights or wrongs.'

He says the one party he has regular contact with during murder trials is the family of the victim.

'I try and speak to them personally as much as possible and keep them up to date,' he says.

The potential emotional problems of acting for someone you believe to be guilty of murder does not occur all that often, Mr Goatley says.

'You can't always guarantee you get the whole story from the client until you go to court, due to denial,' he says.

'Also, in murder cases you are far less likely to believe someone who comes straight out and says "I'm guilty".'

'However, there is always a lot of pressure on you,' he continues.

'You must keep in mind how high the stakes are - it is a big consideration that someone may be going to prison for life.'