Beyond The Tariff
Human Rights and the Release of Life sentence Prisoners
By Nicola Padfield
Portland, OR.: Willan Publishing, 2002
Professor Padfield, a Lecturer at the Institute of Criminology at the University of Cambridge, edits the Archbold News and is well known to criminologists in general, and to penologists in particular, for her contributions in the fields of criminal justice and sentencing law and policy. In addition, she has contributed immensely to the magistracy of the Commonwealth in her former duties as editor of the Commonwealth Magistrates Journal. With the publication of Beyond The Tariff Human Rights and the Release of Life sentence Prisoners, our discipline enjoys quite a useful tool with which to study the workings of the Discretionary Life Panel of the Parole Board, that is, charged with deciding whether and when discretionary life sentence prisoners should be released. The decisions that Professor Padfield has analyzed, both from the English Courts and from the European Court of Human Rights, are of signal assistance to Canadian scholars of sentencing in that they highlight the often incongruous mix of principles that are resorted to justify, if this expression is apt, the decision to detain further an offender even though the sentence served to date has addressed the principles of denunciation and deterrence, both specific and general. In other words, the assistance and instruction of the author touching upon the reach of detention to protect the community is always welcome to guide domestic debates and research.
The discussion found in Beyond The Tariff is organized within 8 chapters, the main ones for present purposes being Chapter 1, “Forms of life sentences”, Chapter 3, “The view from Europe” and Chapter 7, “The spirit of Weeks/Thynne and the reality”. Indeed, a review of each of these chapters will provide insight and guidance on questions that are being discussed today in Canada, notably with respect to the importance of documentation establishing the presence or absence of future risk of quite harmful misconduct, both at the time of sentencing and subsequently when seeking parole.1 In this respect, Professor Padfield’s study is a useful complement to Professor Julian V. Roberts’ article, "Pre-trial Custody, Terms of Imprisonment and the Conditional Sentence: Crediting 'Dead Time' to Effect 'Regime Change' in Sentencing" (2005), 9 Can. Crim. L.R. 191, which was relied upon to decisive effect by the majority of the Supreme Court of Canada in R. v. Fice,  S.C.J. No. 30, 2005 SCC 32 in that it discusses at length why certain sentences, on certain occasions, need to be of a certain nature, such as a life sentence or of penitentiary length, in order that certain principles of sentencing be given full weight, notwithstanding the corollary “pains of imprisonment”. 2
By reasons of constraints of space, I will attempt to limit the focus of my review to the assistance touching upon the question of aggravating and mitigating factors in sentencing. In this respect, noteworthy are the comments found in Chapter 1 on pages 9-10 touching upon the judiciary’s intervention to ensure that the future welfare and progress of youthful offenders are taken into account at all stages of the sentencing process, notwithstanding the evident tension with the principles of retribution and deterrence. In addition, refer to pages 12-13 with regard to the importance of the sentencing court being able to take into account the circumstances of an individual case or offender and the intractable difficulties of delineating what may qualify as “exceptional circumstances.”
Chapter 2, “Life sentences: in custody and approaching release” is also instructive in this respect in that the discussion on page 22 serves to underscore the additional degree of penal punishment, or harm visited upon a detainee, in the case of females, young individuals and those from ethnic minorities. Further, the fascinating and complex dynamics associated with prisoners who claim innocence is discussed under the same heading.3 Noteworthy as well are the various passages found on pages 28-29 outlining the government’ views as to the sentencing principles, both in aggravation and mitigation, which might be at the forefront of a tribunal’s consideration.
Noteworthy as well, as noted previously, is Chapter 3, “The view from Europe”. In particular, one finds quite rare guidance on the influence in sentencing of continental practices and jurists, including the importance of a parole system not being established in such a way as to “set people up to fail” (see p. 51).
Readers interested in the subtle interplay (and the obvious politics) involving evaluations of risk are directed to pages 92-94 of Chapter 5 “DLP’s in practice”, to page 111 of Chapter 6 “Release procedures compared”, and to pages 128, 146-148 of Chapter 7, “The spirit of Weeks/Thynne and the reality”. The discussion makes plain that evaluations of risks are fraught with dangers and fears of over-inclusion.4
Finally, the discussion on pages 152-153 touching upon the potential for a disproportionate sentence in cases of indeterminate detention is valuable for Canadians interested in the application of long term and dangerous offender legislation.
This is a splendid book, which should prove invaluable to those vitally interested in the specific subject but also of significant assistance to those researching sentencing issues in general.
Ontario Court of Justice
1. I commend the scholarly discussion of this subject in Regulatory and Corporate Liability, by Todd Archibald, Ken Jull and Kent Roach, [Canada Law Book: Aurora, On., 2004] reviewed by the writer in (Summer 2005), Vol. 28-1 Provincial Judges’ Journal, at p. 53.
2. A usuful and recent discussion of this issue is found in Professor Roberts’ text, The Virtual Prison [Cambridge University Press: Cambridge, 2004], reviewed by the writer in (June 2005), Vol. 50(3) Criminal Law Quaterly 349-356.
3. I commend the path-breaking article by Professor Adrian T. Grounds “Understanding the Effects of Wrongful Imprisonment” found in Crime and Justice: A Review of Research (Volume 32), edited by Michael Tonry [University of Chicago Press: Chicago, 2004], pp. 1-58.
4. A recent fictionalized account of the May 18th , 1966, attempt to murder the Canadian Prime Minister in Parliament by means of a bomb is quite valuable in making plain how people may act (and react) in ways that seem quite impossible to understand. See The Mad Bomber of Parliament, by James Fontana [Borealis Press: Ottawa, 2005].