Why Stephen Lawrence killers were sentenced as juveniles and under old law

Updated | Two of Stephen Lawrence’s killers Gary Dobson and David Norris have been sentenced to minimum life terms “at her Her Majesty’s Pleasure” of 15 years 2 months and and 14 years 3 months respectively.

There has been surprise, from the Daily Mail amongst others that Dobson and Norris, now in their mid-30s, were sentenced as juveniles. Curiously, they have also been sentenced under historic law dating back to around 1993, which means they cannot be sentenced under harsh new guidance for racially aggrevated crimes.

This may all sound a bit strange, but as readers of this blog will know, the sentencing of criminals convicted in “cold cases” which have heated up can be much more complicated than if the crime happened a short while before trial. This may upset Daily Mail readers, but the reason is partly the European Convention on Human Rights. As Alasdair Henderson posted last month, Article 7 prohibits retrospective punishment, that is punishment using law which was not applicable at the time of the crime:

(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

(2) This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised norms.

Article 7 must be read together with the longstanding principle in criminal law that sentencing is passed as if the crime had happened a short time ago; this only becomes controversial in rare cases when a case has been reopened after many years.

The words “that was applicable” were analysed by the House of Lords (now the Supreme Court) in Regina v. Secretary of State for the Home Department (Appellant) ex parte Uttley (Respondent)[2004] UKHL 38, when Lord Steyne observed that:

article 7 (1) will only be infringed if a sentence is imposed on a defendant which constitutes a heavier penalty than that which could have been imposed on the defendant under the law in force at the time that his offence was committed.

So the discretion of the judge sentencing Dobson and Norris only expands to the maximum sentence which could have been handed down to them if the matter had been tried shortly after the crime took place. At that time, in 1993 and early 2004, they were juveniles so must be sentenced as if they still were.

This means, thankfully, the judge does not have to imagine what the killers would have received at the time of the crime. But this is still a very complex task. As any criminal lawyer knows, a glut of sentencing legislation and guidance has been passed since 1993, when the murder took place, all of which must be ignored.

However, help is at hand from the Court of Appeal which, in the November 2011 case of H, R. v (Rev 2) [2011] EWCA Crim 2753 provided the following guidance for sentencing in “cold cases” (see also our post):

(a) Sentence will be imposed at the date of the sentencing hearing, on the basis of the legislative provisions then current, and by measured reference to any definitive sentencing guidelines relevant to the situation revealed by the established facts.

(b) Although sentence must be limited to the maximum sentence at the date when the offence was committed, it is wholly unrealistic to attempt an assessment of sentence by seeking to identify in 2011 what the sentence for the individual offence was likely to have been if the offence had come to light at or shortly after the date when it was committed. Similarly, if maximum sentences have been reduced, as in some instances, for example theft, they have, the more severe attitude to the offence in earlier years, even if it could be established, should not apply.

(c) As always, the particular circumstances in which the offence was committed and its seriousness must be the main focus. Due allowance for the passage of time may be appropriate. The date may have a considerable bearing on the offender’s culpability. If, for example, the offender was very young and immature at the time when the case was committed, that remains a continuing feature of the sentencing decision. Similarly if the allegations had come to light many years earlier, and when confronted with them, the defendant had admitted them, but for whatever reason, the complaint had not been drawn to the attention of, or investigated by, the police, or had been investigated and not then pursued to trial, these too would be relevant features.

(d) In some cases it may be safe to assume that the fact that, notwithstanding the passage of years, the victim has chosen spontaneously to report what happened to him or her in his or her childhood or younger years would be an indication of continuing inner turmoil. However the circumstances in which the facts come to light varies, and careful judgment of the harm done to the victim is always a critical feature of the sentencing decision. Simultaneously, equal care needs to be taken to assess the true extent of the defendant’s criminality by reference to what he actually did and the circumstances in which he did it.

(e) The passing of the years may demonstrate aggravating features if, for example, the defendant has continued to commit sexual crime or he represents a continuing risk to the public. On the other hand, mitigation may be found in an unblemished life over the years since the offences were committed, particularly if accompanied by evidence of positive good character.

(g) Early admissions and a guilty plea are of particular importance in historic cases. Just because they relate to facts which are long passed, the defendant will inevitably be tempted to lie his way out of the allegations. It is greatly to his credit if he makes early admissions. Even more powerful mitigation is available to the offender who out of a sense of guilt and remorse reports himself to the authorities. Considerations like these provide the victim with vindication, often a feature of great importance to them.

An unenviable task for the judge, and no doubt one which will lead to criticism of the sentencing regime. But, given the clear words of Article 7 ECHR, it would be difficult for the law to be changed to allow for retrospective punishment which is more severe than it would have been at the time.

In any case, it is important to remember that it was only because of the outrage – prompted in part by the famous Daily Mail “murderers” headline – over the initial failed private prosecution that the law on double jeopardy (trying people for the same crime twice) was changed to allow Dobson and Norris to be tried again.

The change in the double jeopardy rules, and more significantly the advances in the use of DNA to solve old crimes, means that an increasing number of judges will have to set their minds to the strange and artificial task of sentencing according to old law. But the human rights restrictions behind this exercise remain clear, and are unlikely to change any time soon.

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13 thoughts on “Why Stephen Lawrence killers were sentenced as juveniles and under old law

  1. Interesting. If I recall the law correctly, if Dobson and Norris had been convicted in 1993/1994 they would (as juveniles) have been “Detained at Her Majesty’s Pleasure.” Also, the Home Secretary would have determined when they could be released (taking into account “advice” from the Parole Board).

    Over the intervening years, so much has changed. In particular, the removal of the politician from the process of deciding matters such as “minimum term” to be served and the legal status of the Parole Board. The European Convention on Human Rights has had much to say on these matters and, in my view, these changes are for the better.

    The sentencing regime is now in the Criminal Justice Act 2003 Schedule 21 which specifies a starting point of 12 years for these particular offenders. Adjust as appropriate for any aggravating factors (e.g. racism) and any mitigating features.

    It has now been revealed that, since 1993, Dobson and Norris have other convictions. Dobson for drug offences and Norris was convicted in 2002 of a racial attack on a black Police Officer. These convictions post-date the Stephen Lawrence murder and it is therefore an interesting question to ask to what extent they can be properly taken into account. The convictions show that these men are something of a continuing risk to the public.

  2. Re taking into account subsequent convictions etc., R v Bird 1987 9 Cr App R (S) 77 says that ‘There may be exceptional circumstances where the sentencing court ought not to shut its eyes to subsequent events.’ However, it was important to remember that the duty of the court was to sentence for the offence.

    Although the starting point under Criminal Justice Act 2003 Schedule 21 would be 12 years, but 30 years for an offender over the age of 18, that figure is largely immaterial because the court will always sentence on the facts. That exercise will take into account the fact that the Dobson and Norris were aged 17 and 16, amongst other factors.

    All in all, it is a very complex exercise.

    Adam, nice reference to R v H and Others, which provides valuable assistance when considering this type of historic offence. The law on sentencing in historic cases is far from clear and those types of cases usually present very difficult sentencing exercises.

    The explanation as to why they are sentenced as juveniles is digestible – which makes a change for this sort of topic!

  3. Interesting debate regarding the consideration of subsequent offences. But regardless of whether it is lawful to include this in sentencing, it certainly will be considered by the Parole Board when both have hearings in around 15 years time. I can’t see that hearing going too favourably for either.

  4. How terrible that they didn’t get punished the first time. Its great to see that the Lawrence family is happier and have thanked the judge and the authorities.

    It should be partially emollient after last year’s riots.

    Given they deny killing Stephen could Gary Dobson and David Norris reasonably take their case to Strasbourg or elsewhere domestically?

    One would hope not!

  5. Ok but they comited those offences after murder, they should have been considered then as flawless characters. Then other convictions should be revised as continuous abusing a law.
    Anyone knows answer for my other question? When Hitler was alive, was there any human rights and all this mass killings were seen as something really naughty or it was just murder ? And we call Hitler all bad names when we shouldn’t?

    • If you’re asking whether Hitler’s actions were illegal at the time then the answer is that they were illegal under international law and contravened various agreements to which Germany was a signatory.

  6. mkp – domestically, there is the possibility of an appeal against either (or both) conviction or sentence to the Court of Appeal (Criminal Division). Appeals are complex matters requiring considerable thought and expert – (often leading counsel’s) – advice. Without detailed – (and I really do mean detailed) – knowledge of the case it is impossible to express any view as to whether there will be an appeal against conviction here. As for appeal against sentence, I would venture to suggest that it is unlikely since Treacy J seems to have thoroughly and accurately applied the law and the sentence would not be either “wrong in principle” or “manifestly excessive.”

    Points relating to the European Convention on Human Rights may be raised in any court in the UK. However, a case only gets to be heard at Strasbourg if (a) all domestic legal processes have been exhausted and (b) the Strasbourg court admits the case. (Many applications are thrown out).

  7. It, this post, does make sense as the express language of Article 7 precludes a harsher punishment: “hands tied”

    Unless civilised societies start to punish like Saudi Arabia by decapitating everyone, that is standard there no matter what you did as long as one offends the criminal law! Her Majesty’s pleasure or not.

    Will these guys actually serve 15 and 14 years each respectively? or will they serve only half? That would be mad!

  8. Adam, care to respond to Cybershot’s post over at the Graun?

    I’m very troubled by this case and what it says about the fairness and independence of our judicial system which appears to be succumbing to Putin style political interference. I would like to put the following points and questions to you at the UK Human Rights Blog:

    In order even to allow this case to go to court a second time Jack Straw changed UK law and dumped Britain’s thousand year tradition of not allowing people to be tried twice for the same crime. What is the stance of the UK Human Rights Blog on this?

    At the behest of politicians both the British legal establishment and police force threw out the rule book which normally protects suspects from mob rule and mob justice, for example….

    When appearing in court in the 1990s the suspects were denied permission to arrive and leave court under police protection or by the back door. Instead they were made to walk an open ramp through an unruly mob which attacked them while police looked on.

    Do you feel defendants deserve protection from angry mobs? And if so was the state persecuting these defendants by denying them such protection? And if the Home Secretary had encouraged the Met Commissioner to deny the defendants protection for the sake of the cameras and ‘mob justice’ would he be guilty of an abuse of authority?

    Having been branded Stephen Lawrence’s murderers by press, Acourt and David Norris were in 2002 jailed for 18 months for ‘attacking’ an off duty black police officer. The officer admitted both to recognizing the pair before his alleged attack and to having string feelings about the Lawrence case. The episode was bizarre in the extreme.

    The attack consisted of throwing a paper cup at the officer from a passing car while shouting the word “n****r”. Although no independent witness could confirm the verbal insult, and the defendants denied it, and the officer himself was found to have lied in another police matter, the jury took just 2 hours to convict.

    The judge then sentenced both the driver and the passenger to 18 months jail, in spite of the fact that only one was accused of having thrown the paper cup and issued the insult. Does that sound like justice to you?, How do you feel about this case from the perspective of a human rights lawyer?

    Once in jail, despite been branded the murderer of Stephen Lawrence by the nation’s press, and having been convicted of a race crime, the two were not separated from violent black inmates. The result was that David Norris was attacked by a gang of four black offenders wielding socks full of tuna cans. Norris was bludgeoned until unconscious, lost four front teeth, had broken ribs, and lost his hearing. Those who found him were unable to revive him and were convinced he was dead.

    Do you feel the state owed Norris a duty of care whilst in jail? And if so has the UK Human Rights Blog covered his treatment?

    Having left Norris to defend for himself in jail once, there is every possibility the government/legal establishment/prison authorities will do so again. Just as in Putin’s Russia there is every possibility that the convicted will end up being murdered while in jail. How do you feel about that? I know some may feel they deserve it, but those that do shouldn’t pretend to believe in a civilized society governed by justice and the rule of law. They don’t.

    To convict Norris and Dobson this time round the prosecution relied on forensic evidence from clothes which had been stored at a police station some eighteen years earlier. Detective Constable Robert Crane who originally collected the clothes admitted that some items had been left on a bed in the cell, while others were placed on the floor. Most were then jumbled into rubbish sacks for storage. He denied having mixed any of them up.

    Does forensic evidence from items left lying around like that for 18 years strike you as credible or reliable? Does proceeding with a case based on such flimsy evidence impinge upon the defendants human rights, in your view?

    I could go on, but the strong impression I have is that the politicians have not just given the police and the legal establishment a green light to do anything no matter how dubious to bang these men up, but worse, they have insisted on them doing this. In short these youth have been singled out and persecuted by the state. The rule book which protects defendants has been thrown out. What is the take at the UK Human Rights Blog on such issues?

    Thanks in advance.

  9. @ mkp – they will serve the MINIMUM sentences specified by the judge. Having served that time they become ELIGIBLE for Parole but this is not automatic. Hence, they could end up serving more than the minimum term in prison. Even if given parole they remain on licence for the remainder of their lives and can be recalled to prison.

  10. @ dave – whilst it is not for me to speak in any way for this blog, I would offer the following entirely personal thoughts:

    The change to double jeopardy law was controversial at the time the change was enacted (2003). However, the change is not contrary to the European Convention on Human Rights. Having said this, a case could have been made back in 2003 for the change to apply only for the future but that was not enacted. As a matter of legal principle, I think the latter would have been preferable.

    ANYONE attending courts should be protected whether they be judges, magistrates, defendants, counsel, witnesses. Court security is a serious concern at the present time and is not, in my opinion, being addressed adequately by the authorities.

    Prisoner protection is a big problem. In a case such as Dobson and Norris it is obvious that they will be at risk from attack from other prisoners. The Prison Service will have to address this. The law provides for legal liability in this area.

    In the recent trial, the defence argued that the DNA evidence was there only because of contamination. Clearly, the jury rejected this. These highly technical areas of evidence usually involve expert witnesses and these raise numerous issues which are the subject of proposals from the Law Commission.

    Please do not form the view that everyone in the legal profession thinks that their garden is entirely rosy. The profession contains many reformers and many who fight hard for rights and justice. Long may it do so.

  11. @ ObiterJ Thanks for your response, I was actually reposting a question from the piece posted by Adam over at the Guardian – I hope he will address it.

    I guess, being in Scotland in 2003, it may have passed me by then & having since moved to NZ I was unaware that the change had occurred.

    Personally having no legal knowledge, but do work in the media, I am concerned that I’m left with the impression that the state or government was out to get someone for the Lawrence murder however long it took.

    As a happy amateur these are my feelings;
    (a) I believe that the accused in this case and the previous case are definitely guilty. How could I have drawn this conclusion without seeing any evidence or attended any trial. Surely that alone leads me to conclude that the overwhelming media coverage must have been prejudicial to a fair outcome.
    (b) The video evidence worries me too, to equate private bravado within your home to actually committing an offence? Concerning, no? I’ve threatened to kill neighbours, their barking dogs and certain colleagues within my own four walls, admittedly not in great detail but…
    (c) I get the impression that laws were changed to bring about this prosecution, although they were tested earlier to make sure that they’d work.
    (d) Laws were not just changed or abandoned but applied retrospectively and that worries me. The principle that you may be prosecuted for something that was formerly legal at the behest of a later government with different views seems concerning.
    (e) To quote Mansfield, when it suited his purpose: “Forensic science is not immutable. They’re not written in tablets of stone, and the biggest mistake that anyone can make—public, expert or anyone else alike—is to believe that forensic science is somehow beyond reproach: it is not! The biggest miscarriages of justice in the United Kingdom, many of them emanate from cases in which forensic science has been shown to be wrong. And the moment a forensic scientist or anyone else says: ‘I am sure this marries up with that’ I get worried.”
    (f) You, the GBP, has convicted two men of murder, under joint enterprise, the fact that neither of them may have been the actual murderer is not something to be celebrated. Can you hand-on-heart say, for example, that the blood spot was definitely not caused by the actual knife-wielder being restrained?

    In a nutshell the state has pursued this for 19 years and made damn sure that it got somebody for it. As I say I’m more than willing to think the worst of Norris, Dobson et al but why do I feel that way having no knowledge of the case? I think that may well parallel previous cases in Guildford, Birmingham, Manchester…

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