Nicky Padfield gave a lecture on the 13th of February in Oxford, as a part of All Souls Criminology Seminars Series. Mrs Padfield started her career as a criminal lawyer and then moved further back into the sentencing world. As she likes to jokingly say, she considers herself to be a lawyer and an amateur criminologist.
The main concern and focus of the lecture was the gap between law in books and law in practise. Precisely this is what has intrigued Mrs. Padfield the most, and she said that if there is a triangle of law, theory and practise, she’d like to think we live somewhere in the middle of that triangle. Unfortunately, as she explained, the law in theory and the law in practise are as yet far from meeting. According to her, this happens because the laws are very complex, elements of life sentence practice are completely wrong, and generally there is a lack of understanding of the prisoners when it comes to the life sentence. Things work differently on paper than in practise, she said. A lot of prisoners do not even know why they get recalled for example, and according to the law they should.
Particular attention was paid to the challenging refusal of parole authorities by taking cases as example. Mrs Padfield mentioned the case of R (Sturnham) v. Parole Board , where she raised the question of what is the proper test to be applied by Parole Board when determining whether to direct the release of a person subject to IPP. Attention was drawn towards the Article 3 of European Convention of Human Rights (ECHR) in relation to the case of Vinter and Others v UK . She said that European Court of Human Rights was right to say that a whole life tariff is unreasonable. Moreover, Mrs. Padfield expressed her concern about the relation between refusal of the parole and the right to offer the prisoners an oral hearing. The practise of telling people that they don’t have a right to an oral hearing is shocking. Yet she was certain on the right outcome fostered as a result of the cases of Osborn v The Parole Board and Booth v Parole Board .
The lecture took the lead of talking about at least eleven different kinds of sentences existent at the moment:
- the life sentence for murder
- the automatic life sentence
- the discretionary life sentence
- the CJA 2003
- detention during HMP
- detention for life
- custody for life
- custody for life as a discretionary sentence
- Imprisonment for Public Protection (IPP)
- detention for public protection
- the automatic life sentence for a second ‘listed’ offence
There are currently people serving life under all, or nearly all, these different kind of sentences. In addition, there are also people serving life under sentences handed down under other jurisdictions (mainly British citizens who have been convicted abroad but been sent back to the UK to serve some or all of their sentence) and, in addition to UK law we need to think more carefully about the rules for people who have moved between jurisdictions.
She admitted that the English judiciary is fighting the European Court of Human Rights about the right to review court decisions when it comes to life sentences, yet she herself thought that ECtHR is on the right track. The fact that people are imprisoned for what many consider shocking terms shows how much work has yet to be done. Mrs. Padfield took the example of Nicola Edgington as a mentally unstable person who got a minimum of 37 years sentence without the right to review it. This – she said – is appalling and unfair; “One has to be able to go back to a judicial body and ask them to review the decision. Of course many people won’t get it, but one should have the right to ask for the review”. On this point, she compared the practice of the French and British courts regarding the reviews of appeals. Mrs. Padfield said that English courts should follow the example set by the French Court of Appeals and some of their judges in general. They are more flexible, young and take more nuanced views of these issues – she said, and the English system could make use of this practical change.
The burden of proof and deterrence were the last two things that Mrs. Padfield talked about. She firmly believes that the burden of proof is on the wrong foot. If you are sentenced to life the burden of proof that you are mentally stable enough to be released on licence lies on you, while the burden of proof should be on the state to prove that it is not safe to release you. Once you’ve served your minimum term you should be detained for very clear reasons that are very well articulated. Moving on to deterrence, she said that the theories of punishment have to engage more with sentencing as an ongoing process, and think about what happens after the sentence has been handed down in court.
When asked why she objected the fact that the minimum term is fixed when it comes to life sentence, she explained that the problem lies in the enormously long lengths of some sentences. You should have a minimum term but that term should be reviewable, she argued. “Take the example of Nicola Edgington,” she said, “I do not think that is fair.”
Mrs. Padfield ended her lecture with style, with a statement and a wish: “I wish judges talked more often to prisoners and understood that the understandings of sentencing are way too different among these two parties”. If people are treated appropriately and with kindness, they have the tendency to think that decisions reached are fairer, since people at the receiving end of a sentence are affected by the process more than by the outcome.