What justifications are there for life sentences? Should they be abolished and replaced by determinate terms of imprisonment?


Life sentence is a complex and drastic penal sanction. It gives the State the power to curtail the liberty of offenders for the rest of their lives. In many jurisdictions, especially in UK, life sentence is the ultimate sanction for the most serious crimes. It is frequently touted as an alternative to the death penalty. At the same time, life sentence is often imposed as a preventive measure, where the offence alone does not justify using the ultimate sanction in the penal arsenal. Although the justifications of life sentences have been developed gradually in response to criticisms of its imposition and implementation, the question of its acceptance fundamentally remain in doubt, which leads on to examine whether life sentence can be abolished and replaced by determinate terms of imprisonment.

There are effectively three grounds on which life sentences can be imposed in UK[1] . (1) The sentence of life imprisonment is mandatory for murder[2]  (2) A court has a discretion to impose life sentence for a range of other offences[3], but (3) a court must impose life sentence for a second serious sexual or violent offence unless there are exceptional circumstances relating either to the offence or the offender that justify it not being imposed[4]. They all have been the subject of consideration by the European Court of Human Rights, principally in relation to Articles 3 and 5 of the Convention, although a number of other articles have been touched upon in the cases which have come before the Court.


Through life sentence, it is hoped to achieve one or more sentencing aim, often described as theories of sentencing. Supporters of life sentences base their arguments mainly on three theories[5]: the need for an appropriately retributive punishment, general deterrence and the incapacitation of offenders or a subsequent “preventive” or “protective” period during which the question of whether it would be safe to release the prisoner becomes the major consideration[6].

a. Retribution:

Retributivism is a very straightforward argument of life sentence. The purpose of retribution is to seek vengeance upon a blameworthy person because they have committed a serious wrongful act while some versions of retributive theory sought to justify life sentence by talk of redressing the moral balance or atonement for wrongs committed, the more straightforward versions merely state that some crimes are serious wrong and deserve to be punished by life sentence, thus punishment is an end in itself[7]. Therefore it can be said that it stresses the criminal’s ‘just desert’ for his actions, and so a principle of equality of treatment as between individuals, that they should be treated fairly in the way that punishments are allocated[8]. This is a claim enthusiastically endorsed by Andrew von Hirsch, one of the main contemporary proponents of retributivism, who asserts that: Sentences according to this ( that is , the just deserts) principle are to be proportionate in their severity to the gravity of the criminal’s conduct…. In such a system, life sentence, because of its severity, is visited only upon those convicted of serious felonies[9].

However, the view that life sentence should be commensurate with the seriousness of the offence, confirms that proportionality concerns have not been ignored entirely in imposing life sentences on grounds of seriousness[10]. In developing the common law on discretionary life sentences English courts have stressed that offenders actions must be balanced with seriousness. A minimum threshold of seriousness is required before a life sentence can even be considered. Thereafter, the more serious the offence the less considerations of other factors required to impose a life sentence- bearing in mind always that there must be an element of seriousness to justify life imprisonment[11].

The implicit arguments throughout the retributive approach to justify life sentences are that the exceptionally serious crimes that were involved here, required a life sentence as the exemplary penalty, even where it may be opposed for ‘ordinary’ crimes[12]. As a result, any potential criminal (contemplating crimes against the peace and security of mankind) should realize that, while he might not actually have to suffer the death penalty, he would none the less be outlawed from society[13]. Furthermore, it would prevent (barbarous crimes) from being committed again and to protect human rights and fundamental freedoms.

b. Deterrence:

The purpose of life sentence must primarily be both to punish and deter[14]. General deterrence seeks to dissuade potential offenders, by the threat of anticipated punishment, from engaging in unlawful conduct by illustrating the unsavoury consequences of offending[15]. Deterrence is clearly a forward looking sentencing objective; focusing solely on preventing harm, by either punishing the offender or dissuading others who come to know of the punishment[16]. Therefore, one fundamental justification for the institution of life sentence is that it exerts this over all restraining effect: it deters many serious offences which would be committed if there were no such institution[17]. Deterrence is further used in everyday life-it is , for example, the theory underpinning a threat issued to encourage people to comply with rules or refrain from infringing them, and is a principle well known to most parents: ‘if you do that again I will ….(threat), or  you won’t …(reward)’[18].

c. Incapacitation:

The purpose of incapacitation is to impose a physical restriction on offenders which makes it impossible or reduces the opportunities for them to re-offend[19] . It means that people would be detained for long periods not for what they have done but for what it is thought they might do if they were at liberty. It manifestly involves both the technical issue of prediction and the ethical issue of what degree of predictive certainly is required to justify an individual’s life sentence or long periods of detention. In practice, elements of incapacitatory thinking have always been likely to be involved in the sentencing of the ‘dangerous offender’ and the ‘persistent offender’, though the incapacitation element may well exist alongside and be submerged by other rationales[20].

Using life sentences as a form of general incapacitation of a class of offenders, who are all assumed to be dangerous, challenges the principle that sentences must be proportionate to the crime even more strongly than a life sentence based on a positive finding of individual dangerousness in a specific case[21]. An attempt by the courts to assert, as the Courts have done in the face of such legislation, that the true intention of the legislator is that only the  individuals who pose a continued risk to society should be imprisoned for life and that the courts should determine who they are, is a strategy of dubious value. Furthermore, life sentences should be imposed automatically for all offenders convicted of a ‘serious’ second violent offence unless exceptional circumstances applied. The courts are asserting a power that is very hard to exercise. If they fail to identify an offender as dangerous and do not order his detention for life and he commits a further offence after release, they will be met by the criticism that they have failed to meet the incapacitatory objective of the legislation[22].


The justifications for life sentence should be considered under the European Court of Human Rights since a number of articles have been touched upon in the cases which have come before the Court, principally in relation to Articles 3 and 5 of the Convention[23]. Article 3 provides that no one should be subjected to inhuman(e) or degrading punishment. The jurisprudence of the European Court makes it clear that for punishment to be inhuman(e) or degrading it must attain a particular level of severity: Costello-Roberts v. United Kingdom[24] . However, the jurisprudence of the European Court also establishes that punishment which is arbitrary and disproportionate can be regarded as inhumane: Weeks v. United Kingdom[25]. The House of Lords in R v Lichniak[26] considered the European Court of Human Rights (ECHR) judgment in respect of the case of V v UK[27] and noted that the ECHR recognised that an indeterminate sentence, in practice, did not constitute an arbitrary and disproportionate punishment[28].

The courts recognise that it is justifiable to impose indeterminate sentences for grave offences, particularly in cases where the sentencing court is unable to determine any specific term of imprisonment that is required to protect the public. The following articulation by Lord Hutton in R v Lichniak[29] provides useful reference – “In my opinion it is not arbitrary to postpone to the end of the tariff period the decision whether a person who has committed a murder would be a danger to the public if released, rather than decide this at the time of his trial. It will not infrequently be the case that the behaviour of a prisoner during the time he is serving the tariff period, and his behaviour on home leave, will give clear indications whether or not he would be a danger to others if released on licence. … There is bound to be some uncertainty in respect of some prisoners as to whether they will be released at the end of the tariff period, and the degree of uncertainty will clearly vary depending on the circumstance of the murder and the background and personality of the prisoner, but I do not consider that such uncertainty can constitute treatment of such severity as to come within the ambit of inhuman punishment forbidden by art. 3 [of the European Convention on Human Rights] or can make the sentence of life imprisonment an arbitrary one.”

According to Article 5, everyone has the right to liberty and security of person. No-one may be deprived of their liberty except in the cases set out in Article 5(1)(a)-(f) (which include ‘lawful detention after conviction by a competent court’)[30]. It follows from the requirement in Article 5 that no one shall be deprived of his liberty save ‘in accordance with a procedure prescribed by law’ that the infliction of arbitrary and disproportionate punishment will constitute a breach of that article: Engel v. Netherlands[31]. In the case of Stafford v. The United Kingdom[32], the two applicants challenged the imposition on them for murder of a life sentence, arguing that this was disproportionate and arbitrary and contrary to Article 5 of the Convention. In dismissing their appeals, the Court of Appeal found that the life sentence was in reality an indeterminate sentence, and as such could not be labelled inhuman and degrading. Nor was it arbitrary as in each case the sentence was individualized from the moment it was imposed. The purpose of the life sentence was, according to the Government’s counsel: ‘to punish the offender by subjecting him to an indeterminate sentence under which he will only be released when he has served the tariff part of his sentence, and when it is considered safe to release him… That is not merely the effect of the sentence, it is the sentence.[33]

Following the above discussions it can be said that life sentence is not incompatible with the Convention, in its operation in practice, provided that, having regard to the circumstances of the offence and the offender, it does neither fall to be regarded as inhumane and degrading nor constitute arbitrary and disproportionate punishment within the meaning of Articles 3 and 5.


 a. Severity and proportionality:

The most widespread objection that is advanced against life sentence is that it may be too severe a penalty for the offence or offences committed by the offender[34]. Stated in this form the proposition is that the potential loss of liberty until the offender dies may be unacceptable, notwithstanding the (uncertain) possibility of release at a later stage. On the other hand, it is noted how such sentences have been prima-facie defended, both on the pragmatic ground that they are not really implemented as life sentences, but more importantly, that they are not imposed because of the heinousness of the crime alone, and on the ground that in fact they were justified by the additional factor of dangerousness. In their developed form such extensions have been administered almost as second sentences. But what of life sentences for the most serious crimes, those that would demand the ultimate penalty that a society is prepared to impose[35]? When courts would deal with this key limitation on life imprisonment they would say that the sentence is disproportionately heavy. Underlying the proposition is the wider idea that a disproportionate sentence is a form of cruel, inhuman or degrading punishment. Such punishments are held to infringe the human dignity of the offender, who has not deserved such a loss of rights[36].

In late 2000 the Court of Appeal applied the provisions of the Human Rights Act to life imprisonment for the first time when it reconsidered the interpretation of the provision that in exceptional circumstances an automatic sentence of life imprisonment did not have to be imposed. The established principle that no person should be subjected to a (grossly) disproportionate sentence, relate it to one particular right in the Charter of Fundamental Rights which applies in the sphere of criminal justice: Article II 49(3) declares that ‘the severity of penalties must not be disproportionate to the criminal offence’[37].  In the case of R v. Offen, the Lord Chief Justice, Lord Wolf, accepted that the narrow interpretation of exceptional circumstances that had hitherto been followed could result in the imposition of life sentences that would be disproportionate and arbitrary and thus in contravention of Articles 3 and 5 that deal with the prohibition on inhuman and degrading punishment and with the arbitrary deprivation of liberty respectively. ‘it is easy’, noted Lord Woolf, ‘to find examples of situations where two offences could be committed which were categorized as serious by the section, but where it would be wholly disproportionate to impose a life sentence to protect the public.’

 This was a major development. It meant that Lord Woolf rejected the argument put forward by the Crown that the proposal of early release for lifers removed the elements of arbitrariness and disproportionality of outcome from the life sentence. On the contrary, it implied recognition that a life sentence places a much heavier burden on prisoners than a determinate sentence and that this has to be justified, if it is not to fall foul of the relevant standards of the European Convention[38].

b. The International Law on Life Sentence:

In various jurisdictions around the world would prima-facie consider life sentence is morally unacceptable as the maximum sentence[39]. The views of the South American opponents of life sentence are well illustrated by the comments of Mr. Solari Tuleda from Peru: ‘Life sentence did not seem to be compatible with the Latin American legal system. The criterion adopted in the American Convention on Human Rights, for instance, was that penalties should not only be correctional in nature but should also rehabilitate the convicted person so that he could resume his place in society’[40].

This passage highlights two recurring themes in the opposition to life sentence, namely, the objection that it is not a competent penalty for even the most serious crimes in the domestic law of some States and, secondly, that it undermines the human rights of offenders by denying them the opportunity to rehabilitate themselves so that they can later live in society as free citizens. It is noticeable that the idea that life sentence may violate prisoners’ human rights was also taken up by commissioners from outside South America. Although their ideas are not fully developed, it appears that they may have had concerns about the human rights infringed by life sentence that went beyond the concern of the right to rehabilitation[41].

Thus for example Commissioner Graefrath from the German Democratic Republic commented simply that he was ‘opposed to life sentence, which was inhuman and contrary to human rights. A 25 year term of imprisonment should be the most severe penalty’[42]. Similarly, Commissioner Njenga from Kenya commented: ‘Life sentence was unacceptable as the maximum sentence, for the objective was justice, not blind retribution. A life sentence imposed on an elderly person, without the possibility of remission, did little credit to the conscience of mankind, and in domestic systems the prerogative of mercy or parole was frequently exercised. Again, many countries had abandoned the life sentence on the ground that it infringed human rights’[43].

A more realistic penalty would be imprisonment for a minimum of 10 years and a maximum of 25 years[44], which is the longest term of imprisonment in many countries in the world. Only then, the fundamental principle ‘no person should be subjected to a disproportionate sentence’ would not be breached, on the ground that the maximum 25 year term of imprisonment  due to the general welfare need to protect members of the public, does not prima facie violate an individual’s right to liberty.  In principle, such a measure can be justified only where a person has been convicted of a serious offence. Furthermore, the respect for rights, and limitation on the arbitrary use of state power, requires that substantial deprivations of an offender’s liberty should only be permissible if the offender has committed a very serious offence. Otherwise, allowing states to impose substantial restrictions or deprivations of liberty where the offence was not serious would be to condone the use of individuals merely as a means to an end, which is inconsistent with fundamental respect for the dignity of each human being.


The Criminal Justice Act 2003 (the “2003 Act”) contains provisions of great significance to the life sentencing of offenders[45]. Section 225 provides for the new sentence of life imprisonment and the sentence of imprisonment for public protection. If an offender over 18 is convicted of a “serious offence” committed after the commencement of this set of provisions, he may qualify for a life sentence or a sentence of imprisonment for public protection. To qualify for a sentence of imprisonment for life, the offence must be punishable with life sentence, and the court must be of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences (not necessarily “serious offences”). In such a case, the court must pass a sentence of life imprisonment if it considers that “the seriousness of the offence or of the offence and one or more offences associated with it is such as to justify the imposition of a sentence of imprisonment for life.”

Chapter 7 of Pt 12 of the Act has further brought a new scheme of life sentences for murder. These represent a fundamental change in the administration of the law, forced on the Government by decisions of the House of Lords[46]  and the European Court of Human Rights[47]  on the application of the European Convention on Human Rights.  The effect of the changes can be stated simply that the minimum periods that the offenders serve before they could be considered for release on licence by the Parole Board under the early release provisions contained in the Act.

The catalyst for the need to include the early release provisions in the 2003 Act was the decision of the House of Lords in R (Anderson) v Secretary of State[48]. Before the decision in Anderson the minimum period in the case of those sentenced to a mandatory life sentence was determined by the Secretary of State after considering recommendations made privately by the trial judge and the Lord Chief Justice. Following a series of decisions of the ECHR, in Anderson the House of Lords made it clear that this involvement of the Secretary of State was unacceptable and contravened Article 6 of the ECHR. This was because the process of determining a minimum period is considered to be indistinguishable from that of determining a sentence. Both tasks should be performed by a judge and not by a member of the Executive. The Secretary of State after that decision ceased to determine minimum periods though trial judges continued to make recommendations until the new provisions came into force.

 The decision in Anderson does not affect the fact that the mandatory sentence for murder remains life sentence. Although an offender may be released on licence, and the minimum period affects the date on which this may happen, the offender remains at risk of being returned to prison for the rest of his life. The sentence of life imprisonment has been treated, both as matter of reality and for many legal purposes, as containing two periods. The initial period, known as the minimum term, that is a period to be served by the offender as a punishment and a deterrent, and a subsequent period during which the offender can, but may not, be released on licence by the Parole Board if the Board decides that the safety of the public does not require the offender to remain in.


The life sentence had been firmly incorporated by the early 1970s into English law as a mandatory sentence for murder for adults and juveniles and as a discretionary sentence for dangerous potential recidivists convicted of a range of serious offences. The shaping of the discretionary life sentence was largely the product of judicial intervention. The restrictions on when it could be imposed, showed some recognition of the complex nature of the life sentence as both a penalty and a form of preventive detention. From this basis it examines the justifications advanced for life sentence and the modifications that have resulted in English jurisdictions in response to criticisms of its imposition and implementation. At the same time, the essay develops a more general critique of life sentence. It evaluates life sentence against constitutional human rights standards that have been developed in many jurisdictions to judge the acceptability of punishment generally. It concludes that some current practices in both the imposition and implementation of life sentence clearly are fundamentally unacceptable, but that questions remain, even about carefully implemented life sentences imposed for the most serious crimes. The Jurisprudential analysis provides the basis for a major re-evaluation of life imprisonment and raises doubts about the unquestioning acceptance of this ultimate penalty.

 I on the other hand wish to point out that life sentences are necessary and justifiable for certain offences and circumstances as prescribed by legislation or determined by the court, and that many of other common law jurisdictions have it. None of these jurisdictions provide for “maximum terms” within life sentences. “Minimum terms” are provided for instead which inevitably carry with them a certain degree of uncertainty as to the timing of eventual release. In the UK, the term “tariff” has been changed to “minimum term” in order to reflect better the actual meaning of the relevant part of the sentence.


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1] See, in R v Hodgson (1968) 52 Cr App R 113 (Cross & Cheung, Sentencing in Hong Kong, 3rd Ed., p.278), an indeterminate sentence was considered to be justifiable provided three criteria were met – (a) The offence or offences were in themselves grave enough to require a very long sentence. (b) Where it appeared from the nature of the offences or from the accused’s history that he was a person of unstable character likely to commit such offences in the future. (c) If the offences were committed, the consequences to others might be specially injurious, as in the case of sexual offences or crimes of violence.

[2] See, Section 1(1) of the Murder (Abolition of the Death Penalty) Act 1965.

[3] See, the offences for which such sentences have been imposed since 1989 are listed  in Table 1. This list does not include all crimes for which there is provision for a life sentence

[4] See, Section 109 of the Powers of Criminal Courts (Sentencing) Act 2000). In addition, the same sentences may be imposed on young offenders aged between 18 and 21 years, although in their case the sentence is one of ‘custody for life’.

[5] The first two of these were given expression by Mr. Illueca, a Commissioner from Panama, who argued that ‘crimes against the peace and security of mankind called above all for the adoption of exemplary penalties which reflected the feeling of condemnation that such acts aroused in the international community and which also had a deterrent effect’.

[6] See, Van Zyl Smit, Dirk, Taking Life Imprisonment Seriously, Kluwer Law International, P-102.

[7] The Courts are justified in punishing because and only because offenders deserve it. Moral culpability (desert) is in such a view both a sufficient as well as a necessary condition of liability to punitive sanctions. Such justification gives society more than merely a right to punish culpable offenders. It does this, making it not unfair to punish them, but retributivism justifies more than this. For a retributivist, the moral culpability of an offender also gives society the duty to punish.

[8] See, Norrie, A, Crime, Reason and History, p-208.

[9] See, Von Hirsch, A, Past or Future Crimes, p-10.

[10] See, Ashworth, A & Mitchell, B, Rethinking English Homicide Law, P-169 -178.

[11] See,Van Zyl Smit, Dirk, Taking Life Imprisonment Seriously, P-201

[12] See, Barr, Loren L, “The ‘Three Strikes’ Dilemma: Crime reduction at Any Price?”, (1995) 36 Santa Clara Law Review, 107.

[13] It relates with Mr. Illueca, who  relied on human rights norms not only for his rejection of the death penalty but also for his support for life imprisonment in the face of opposition to it from other commissioners from Latin America.

[14] Accordingly, the phrase ‘commensurate with the seriousness of the offence’ must mean commensurate with the punishment and deterrence which the seriousness of the offence requires. Cunningham (1993) 14 Cr App p-447.

[15] The court in El Karhani, in the course of noting that general deterrence is one of ‘the fundamental principles of sentencing, inherited from the ages’ 54 put down the legislative omission of general deterrence to a ‘legislative slip’. It stated that it is still an important sentencing consideration and no less important than the other factors expressly mentioned, although it is absent from the detailed list of relevant sentencing criteria.

[16] For Bentham, general deterrence was the primary good consequence of punishment: General prevention ought to be the chief end of punishment, as it is its real justification…when we consider that an unpunished crime leaves the path of crime open, not only to the same delinquent, but also to all those who may have the same motives and opportunities for entering upon it, we perceive that the punishment inflicted on the individual becomes a source of security to all. That punishment which, considered in itself, appeared base and repugnant to all generous sentiments, is elevated to the first rank of benefits, when it is regarded not as an act of wrath or of vengeance against a guilty or unfortunate individual who has given way to mischievous inclinations, but as an indispensable sacrifice to the common safety.

[17] In Yardley v. Betts, the court stated: ‘…the courts must assume, although evidence is wanting, that the sentences which they impose have the effect of deterring at least some people from committing crime’. Similarly, in Fern, King CJ held that ‘ courts are obliged to assume that the punishments which Parliament authorises will have a tendency to deter people from committing crimes.

[18] See, Tata & Hutton,  Sentencing and Society, p-145.

[19] Apart from capital punishment, no sanction can ever hope to prevent offenders from re-offending totally. All sanctions involving some degree of supervision or interference with the freedom of the offender.

[20]The strictures of the proportionality requirement are often avoided by arguing that there is something about an offender, usually the offenders past or future conduct, that justifies indeterminate detention in the form of a life sentence. This consideration arises where the offender is found to be an habitual offender or a dangerous offender or both.

[21]  See, Rossi, ‘Beyond Crime Seriousness: fitting the punishment to the crime’, P- 59.

[22] See, Coker and Martin, Licensed to Live, p17.

[23] See, Ashworth, ‘Towards European Sentencing Standards’, (1994) 2European Journal on Criminal Policy,7.

[24] 1993) 19 EHRR 112 para 30

[25] 1978) 10 EHRR 293 para47

[26] [2002] 4 AII ER 1122

[27] ((2000) 30 EHRR 121)

[28] See, Emmerson and Ashworth, Human Rights and Criminal Proceedings, P-234.

[29] 2002] 4 AII ER 1122

[30] See, Eric Cullen and Tim Newell, Murderers and Life Imprisonment, P- 153-158.

[31](1976) 1 ECHR 647, para 58

[32] 2002] 4 AII ER 1122

[33] See, Stern, Vivien, “Keep life sentences only for the few”, The Times, 4 February 1991,3.

[34]The concept of proportionality goes to the heart of the inquiry as to whether punishment is cruel, inhuman or degrading, particularly where, as here, it is almost exclusively the length of time for which an offender is sentenced that is in issue.’S v Dodo 2001 (3) SA 382 (CC) 303 per Ackermann J speaking for the unanimous Constitutional Court of South Africa..

[35]The extreme example of such a sentence must be the mandatory life sentence without the prospect of parole for the possession of drugs upheld by the US Supreme Court in Harmelin v. Michigan. It was also the ultimate penalty that could be imposed in the State of Michigan at the time, as Michigan did not provide for the death penalty.

[36]In various jurisdictions around the world it is a constitutional principle that no person should be subjected to a grossly disproportionate sentence. The principle already has some support in European human rights law, as we will show. Of particular interest is the movement towards a new constitutional treaty for the European Union. Part II of the Draft Treaty establishing a Constitution for Europe consists of ‘The Charter of Fundamental Rights of the Union,’ following the charter proclaimed at the Nice summit in December 2000 and attached to the Treaty of Nice, in force since February 2003. The Constitution envisages that the Articles of the Charter will be applied to all EU legislation. In respect of criminal justice, that means that the Charter will impinge upon all offences against Community law, and also laws made under Chapter IV of Part III of the proposed Constitution, which deals with the ‘Area of Freedom, Security and Justice.’ It may be expected that the standards set by the Charter will also be accorded a wider influence.)

[37]See, Committee on the Penalty for Homicide, The Report of an Independent Inquiry into the Mandatory Life Sentence for Murder, Commissioned by the Prison Reform Trust, London: Prison Reform Trust, 1993.

[38] See,Van Zyl Smit, Dirk, Taking Life Imprisonment Seriously, P-129.

[39] It would vary but it should because in the case of life imprisonment this maximum period is indeterminate. No such comparison is possible. Sometimes an attempt is made to make life sentences proportionate to different offences by introducing different minimum periods that must be served before release can be considered. In order to meet the criterion of proportionality, a life sentence should only be imposed for a crime that is so serious that imprisonment until the end of the offender’s life would not be disproportionally severe.

[40] See, Henham, Ralph, “Back to the Future on Sentencing: The 1996 White Paper”, (1996) 39 Modern Law Review, 861.

[41] See,Van Zyl Smit, Dirk, Taking Life Imprisonment Seriously,P-201.

[42] The life sentence was neither deliberately implemented for the full natural life of an offender nor any formal limit on the length of fixed-term sentences, so in theory the danger exists that prisoners could be sentenced to terms that are in fact disguised sentences of life imprisonment. However, there is a convention that sentences should normally not be longer than about 22 years.

[43] See, Grossman, Steven, “Proportionality in Non-Capital Sentencing: The Supreme Courts Tortured Approach to Cruel and Unusual Punishment”, (1995-96) 84 Kentucky Law Journal, 107.

[44] A requirement to set a maximum or determinate term (as opposed to a minimum term) within an indeterminate sentence would undermine the general welfare need to protect members of the public and may lead to the release of prisoners when the monitoring of their progress towards rehabilitation shows that they remain a threat to public safety. A legislative requirement for setting maximum terms within indeterminate sentences from the outset would pre-empt both the court’s view in individual cases that the time when the danger posed to public safety could not be foreseen and the post-sentencing monitoring of a prisoner’s progress which is essential to protecting members of the public.

[45]The Criminal Justice Act 2003 consists of 339 sections, of which 163 deal with sentencing. In addition, there are 38 Schedules, of which the vast majority also deal wholly or primarily with sentencing.

[46]  See, R ( on the application of Anderson ) v. Secretary of State for the Home Department (2002) 2 UKHL 46]

[47] See, Stafford v. United Kingdom (2002) 35 EHRR 32]

[48] [2003] 1 AC 837 25 November 2002