Up until 1808 in England, the hapless offender could find themselves at the end of the rope for the merest of crimes. Pickpockets and even children could be publicly executed. It seems remarkable by modern standards that executing children under the age of 16 wasn’t banned until 1908. Furthermore, if you were aged between 16 and 18 you could still be technically executed right up until 1933, though in practice it hadn’t been enforced for over 40 years.
By 1959 the criteria for execution was whittled down to seven types of violent crimes, such as the killing of a police officer or armed robbery. Six years later the death penalty was finally abolished a few months after the execution of Peter Allen and Gwynn Evans on 14th August 1965. Well sort of.
There were caveats; espionage, piracy, and a list of offences that fell under the banner of ‘treason’ were still theoretically punishable by death, though these punishments would only have been carried out on prison grounds. Before May 1868, executions were undertaken in public. In fact, the death penalty wasn’t fully abolished until 1998 and, up until 1994, there were even working, and frequently tested, gallows at HMP Wandsworth, London.
In 1983, just over a decade before the Wandsworth gallows went on display at the National Justice Museum in Nottingham, Conservative MP Leon Britten, without the consent of the Lord Chief of Justice, paved the way for reforms that permitted the Home Office to impose a non-contestable ‘whole life tariff'. Quite simply, a sentence that allowed a convict to die behind bars. A sort of, execution by time, if you like.
The same year that the working gallows were retired, the then Home Secretary, Michael Howard imposed whole life tariffs on 20 notorious prisoners, such as Myra Hindley, Dennis Nilsen, and Jeremy Bamber. In addition to ensuring that these prisoners spent the rest of their lives inside jail, Howard also compromised the original judge-imposed 'minimum spend time' for those given the whole life tariff. But the somewhat reckless manner in which the tariff had been established left it vulnerable to actual, real-life, legislation.
In 2002, Anthony Anderson, a prisoner serving a life sentence for murder, appealed against Home Secretary David Blunkett’s 5-year increase of his sentence, previously set as 15 years by his trial judge. Note ‘life sentence’ and not ‘whole-life tariff'. Anderson’s legal team argued that the increase of his sentence by a politician, and not a judge, was a violation of his human rights. His lawyer, Edward Fitzgerald QC, addressed a panel of seven law lords with the following: “A sentence is a decision that should be taken openly, publicly and fairly in court by a judge, not secretly and unfairly by a politician who has never heard the case and is subject to all the inevitable pressures of public opinion."
The law lords’ agreed, potentially opening the floodgates for other prisoners to contest their politician-imposed, increased sentences, including those that had been given a whole life tariff. Indeed, many attempted to appeal, including Myra Hindley, the first woman to be given a whole life tariff and a veteran of three (failed) appeals before the change in the law.
Back in 1966, Hindley’s trial judge recommended that she should serve a minimum of 25 years before being considered for parole, but this was later increased to a whole life tariff by Michael Howard. She died in November 2002 aged 60, a few weeks after Anderson’s appeal. Had she survived, her appeal, free from any political objectives, may have been successful.
A year later the Criminal Justice act of 2003 changed the former whole life tariff to a 'whole life order' and stipulated that only judges can set minimum terms and, crucially, only the Court of Appeal, or the Supreme Court, can amend the sentence. In short, politicians could no longer set minimum sentences, as Michael Howard did with the killers of James Bulger, nor could they decide when a life sentence prisoner was due or not for parole. However, it doesn’t always work like that.
Dennis Nilsen is a high-profile example of a prisoner that could have been released following the Criminal Justice Act of 2003. Sentenced to prison in 1983, the judge recommended he serve a minimum of 25 years in prison. In 1994 Nilsen was handed a whole life tariff. Technically, his sentence was due for review in 2008 but as he never appealed against his conviction, he remained in prison until his death in 2018.
Nilsen is far from alone. Other prisoners have seen their original, legal, minimum sentences come and go without appealing, such as child molester and murderer Victor Miller. But prisoners such as Jeremy Bamber, individuals that received minimum 25-year sentences and then a whole life tariff, have found themselves in a legal spiral when, 25 years after the fact, they’re still appealing.
