Lifers

by Geoffrey Wansell

  Had those psychiatric reports been conducted after Roberts’s conviction in 1995 the possibility that he was indeed the ‘Bermondsey Rapist’ might have been considered, but as it was, no such examinations took place. But one aspect of his 1995 arrest and conviction did come back to haunt him – his DNA.

  Not long after Roberts’s conviction in 2005, the ‘cold case review’ discovered that his DNA matched that found at the crime scenes in Bermondsey and, as a result, officers visited Roberts at Wandsworth Prison in south London where he was beginning his life sentence.

  When they arrested him for the ‘Bermondsey Rapist’ attacks, Roberts told them, ‘You are having a joke, aren’t you?’

  But it was not until December 2011 that Michael John Roberts finally stood trial for the four attacks that took place twenty years earlier. He was charged with three counts of rape, four counts of burglary, two counts of indecent assault, two counts of causing grievous bodily harm, and one count of buggery. But he denied them all, protesting his innocence repeatedly from the dock. Tragically, none of his elderly victims had survived to see him brought to trial.

  Roberts was still proclaiming his innocence after the jury convicted him on all counts on 20 December 2011 at Southwark Crown Court, and he was shouting in protest at Judge Stephen Robbins when he started to pass sentence on 12 January 2012. That did not prevent the judge reaching a firm conclusion.

  ‘I’m quite satisfied that you are a danger to society, therefore I do sentence you to imprisonment for the rest of your natural life,’ Judge Robbins told him. ‘Your utter depravity knows no bounds, these are very grave offences.’

  Roberts became only the second person ever to be given a whole life term of imprisonment without having committed a murder. The other was a man named Stephen Ayre in 2006, whose case we shall come to.

  ‘You terrified a whole community of south London,’ Judge Robbins went on. ‘People in south London had been living in fear that they might be your next victim.’

  As for the four victims, the judge concluded: ‘Your actions blighted the remaining years of their lives. Their homes should have been their safest refuge, where they could expect to live their lives undisturbed and in peace. You must have distilled complete terror and fear that one can only imagine.’

  It was a view shared by the son of one of the Bermondsey victims, who made an ‘impact’ statement to the court, in which he described his mother’s reaction. ‘My mother was once a cheerful and kindly person who never used to worry about anything,’ he explained. ‘That was until the night when she was brutally assaulted. She said later that she thought that night was going to be her last. How anyone can attack a defenceless female in her own home, who is disabled, words fail me.’

  The Metropolitan Police knew that only too well. Detective Inspector Nathan Eason, who led the ‘cold case’ investigation, said forcefully, ‘Michael Roberts is a sexual predator who preyed on vulnerable women in the late eighties and early nineties. ‘Unfortunately none of his victims lived to see him being brought to justice today but the family members of the victims have expressed deep satisfaction with the judgement handed down today. They take huge satisfaction from the fact that he will never devastate other lives.’

  But Michael Roberts’s whole life sentence was not destined to last. At the same specially convened hearing of the Court of Appeal just nine months later, in October 2012, he launched an appeal against his whole life term.

  The then Lord Chief Justice, Lord Judge, on behalf of the Court, acknowledged the seriousness of Roberts’s crimes, and the brutal effect his attacks had had on his elderly victims, pointing out that he had shown no pity or remorse. ‘These offences,’ Lord Judge said, ‘together with some of his earlier convictions, confirm that he was cruel and ruthless and a real and continuing danger, especially to vulnerable people.’

  But Lord Judge went on to point out that among the cases where whole life orders had been imposed, ‘none could be found in the context of sexual crime where one or more of the victims had not been murdered.’ That meant, he explained, that without seeking to trivialise the ordeals of Roberts’s four elderly victims, his being handed a whole life order was a mistake, as that sentence should be ‘reserved for cases where the criminal went even further’.

  ‘It is regrettably possible to envisage, and there have been cases,’ Lord Judge explained, ‘where dreadful sexual assaults have been followed by murderous violence.’ The central issue, he added, was that a whole life order should be ‘reserved for the most exceptional cases’. The Lord Chief Justice then revealed that the Court was not suggesting that a defendant could now be subject to a whole life sentence only if he or she had been convicted ‘of at least one murder’.

  Given the circumstances, he concluded, the Court had decided to quash the whole life sentence, and in its place substitute a life sentence with a minimum term of twenty-five years – meaning that Roberts could not even be considered for release until he was at least seventy. But Lord Judge added, finally, ‘On the evidence before us at the moment it seems highly improbable that he will, after the expiry of twenty-five or thirty or more years, or indeed ever, be safe for release.’

  The fact that Roberts had never been convicted of murder brought him at least the possibility of release, no matter how remote that possibility might be. Yet the irony is that Scotland Yard suspected, but could not prove, that he was linked to the 1990 murder of sixty-eight-year-old Irene Grainey in south London, who was sexually attacked and stabbed to death with a kitchen knife on 31 May 1990. Her body had lain undiscovered for six weeks at her council maisonette in Rotherhithe, and her murder remained unsolved.

  Only too aware of the possibility that he might be linked to the Irene Grainey murder, Michael Roberts has remained studiously silent ever since his appeal against his whole life sentence succeeded.

  But Roberts was not the only whole life prisoner to be treated more leniently by the specially convened Court of Appeal in their judgement published on 21 November 2012.

  David Martin Simmons was aged forty at the time of his appeal eight years after sentencing. The delay was attributed to the confusion over whether a whole life sentence had ever been specifically designated by the judge in his case.

  On 17 February 2004 Simmons had pleaded guilty to two charges of rape and false imprisonment and on 9 December 2004 Judge Foley sentenced him to life imprisonment on each of the two counts, but did not add a fixed ‘whole life’ term.

  Shortly after he was sentenced, Simmons was transferred from prison to Broadmoor Special Hospital, where he spent the next six years before being transferred back to Bristol Prison in 2010. When he got to Bristol, however, he was told, allegedly for the first time, that in the absence of any specific term of life sentence, he was now being regarded as a whole life prisoner. Not surprisingly this came as a profound shock to Simmons, and he asked for leave to appeal against a sentence he did not know he had.

  Like Roberts, Simmons had not committed murder, although he clearly presented a grave danger to women, and to prostitutes in particular. This may have influenced the judge’s decision to give him a life sentence, while not indicating that it should be a whole life term. Nevertheless, the details of Simmons’s case certainly justified his life imprisonment.

  Just after midnight on 25 August 2003 Simmons, who was then aged thirty-one, offered a young prostitute a lift in his car, which she accepted. But almost immediately after she had climbed into the passenger seat he produced a knife and held it to her throat. Simmons then drove to an industrial e
state. He tied her hands behind her back and blindfolded her, before pushing the passenger seat right back so that she was forced to lie almost flat. He then removed her shoes, her jeans and her knickers, before putting his fingers inside her. Then, using a condom, Simmons climbed on top of her and unsuccessfully attempted to penetrate her without achieving any kind of climax.

  Frustrated, Simmons then used great force to penetrate her vagina and ejaculated inside her. He removed her from his car, washed her vagina and anus with wine, before putting her jeans back on, tying her to the passenger seat and driving her, still blindfolded, to another industrial estate. There Simmons pulled her out of his car and put a jumper over the back of her head, using part of it in her mouth as a gag and then securing it there with a rope. He then told his young and helpless victim that he was going to ‘slit her throat’, but had to get a bigger knife to do so. She was utterly terrified and in desperate fear for her life, but Simmons never returned, and eventually she managed to attract the attention of a security officer on the industrial estate and the police were called.

  Simmons had something of a reputation for attacking prostitutes and, as a result, was interviewed several times by the police after this attack. He told them that he had indeed been with a prostitute that night and had agreed a price for certain sex acts, before adding that he had ‘lost the plot’, although he did not remember exactly what had happened. But he denied that he had ever threatened her or done anything against her will.

  In fact Simmons had a number of previous convictions for assaulting women, including two in 2000, one for an indecent assault and one for robbery. Those offences had many similarities to this new case. In one, the victim was a working prostitute when he forced her to perform oral sex on him and then masturbate him. He also threatened her with a knife to her throat, and inserted his fingers into her vagina. In the other case, Simmons grabbed another woman in the street from behind, told her that he had a knife and that he would kill if she did not shut up. He then robbed her.

  On 17 February 2004, when Simmons finally arrived in Court over the attack in the previous August, he pleaded guilty to the charges of rape and false imprisonment, and on 9 December 2004 Judge Foley sentenced him to life imprisonment on each count. But Simmons had refused to communicate with the prison authorities or to attend any interviews between pleading guilty and his sentence, which may have led the judge to pass a life sentence.

  In his sentencing remarks, the judge said he was satisfied that Simmons posed ‘a significant risk to women’, and added that it was the wish of the Court that he ‘could not be released until (he) ceased to be such a risk’, because he was a man of ‘unstable character likely to commit similar offences’ and ‘a danger’.

  Judge Foley added that the Court was not required to specify a period ‘if it is of the opinion that no period should be specified’, and said he was satisfied that a life sentence was appropriate because of the seriousness of the offences and Simmons’s history of offending.

  The prosecution in Simmons’s appeal in the autumn of 2012 accepted that the whole life sentence he had ended up with was inappropriate, and the specially convened Court of Appeal agreed. Lord Judge explained on behalf of the Court, ‘As it seems to us, profoundly disturbing as this offence certainly was, it was not an offence of the extreme level of seriousness to justify a whole life order.’

  The Court substituted a minimum term of just ten years for Simmons’s whole life sentence, although they were at pains to point out that by quashing the whole life term they were ‘not suggesting for one moment that Simmons will be safe to be released at the conclusion of the ten year period’. Lord Judge went so far as to conclude, ‘We note that it has been necessary for him to spend time in Broadmoor Hospital, and we suspect that his release is most unlikely.’

  Nevertheless, it represented a remarkable turn of events for a man who could have been facing another thirty or more years in prison without a realistic possibility for release. Whether David Martin Simmons will ever see life beyond a prison cell or a secure hospital ward is a matter for the prison or hospital authorities – but there is now at least the possibility that he might.

  Throughout their lengthy judgement on 21 November 2012 about the cases of Oakes, Restivo, Roberts and Simmons, the Court of Appeal went to considerable lengths to point out that each man was dangerous, before adding, ‘on the available evidence, likely to remain dangerous for the indefinite future. At present it is difficult to see how it will ever become safe for any of them to be released from custody.’

  They also took pains to explain their views about the concept of a ‘whole life term’ using case law in England and Wales that had been built up over the previous decade. It is a judgement worth reading in full, for it presents the finest and most coherent argument on both sides of the debate, while still coming down firmly in favour of the principle of a ‘whole life term’ remaining in force.

  In particular, Lord Judge went to considerable lengths to represent the views of many senior judges on the issue. He explained, for example, that every civilised country embraces the idea encapsulated in Article Three of the European Convention of Human Rights, which says, ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ But he went on to add that every civilised country also ‘embraces the principle that just punishment is appropriate for those convicted of criminal offences’. Lord Judge concluded that the issues that related to ‘just and proportionate punishment’ should be the subject of ‘rational debate and civilised disagreement’.

  The Lord Chief Justice pointed out that one of his senior colleagues, Lord Justice Laws, had expressed his doubts about whole life terms of imprisonment in a 2007 judgement, in which he said: ‘… a prisoner’s incarceration without hope of release is in many respects … a sentence of death. He can never atone for his offence. However he may use incarceration as time for amendment of life, his punishment is only exhausted by his last breath … The supposed inalienable value of the prisoner’s life is reduced, merely to his survival: to nothing more than his drawing breath and being kept, no doubt, confined in decent circumstances. That is to pay lip-service to the value of life; not to vouchsafe it.’

  That was a similar view, he went on, to that expressed in the European Court of Human Rights in the case of Gary Vinter, but, on the other hand, there were certainly some eminent judges who took a fundamentally different view.

  An earlier Lord Chief Justice, Lord Bingham, certainly did. In passing judgement on the Moors murderess Myra Hindley’s appeal for release from prison in 1998, Lord Bingham stated firmly, ‘I can see no reason, in principle, why a crime or crimes, if sufficiently heinous, should not be regarded as deserving life-long incarceration for purposes of pure punishment.’ He then concluded, ‘Successive Lord Chief Justices have regarded such a tariff as lawful, and I share their view.’

  Myra Hindley’s appeal was dismissed in the Court of Appeal, and was also dismissed in the House of Lords – then the highest Court in England and Wales, though it has since been succeeded by the Supreme Court.

  In the House of Lords, Lord Steyn agreed with Lord Bingham that some crimes ‘would be sufficiently heinous to deserve life-long incarceration for the purposes of pure punishment’. He added, ‘There is nothing logically inconsistent with … saying that there are cases where the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence.’

  It was a fierce judgement, but one widely subscribed to by a succession of the most
senior judges in the country, a fact which Lord Judge pointed out in the November 2012 Court of Appeal judgement on Oakes and the others.

  In particular he pointed to a 2009 judgement by Baroness Hale, now Deputy President of the Supreme Court, in which she observed, ‘I do understand the philosophical position, that each human being should be regarded as capable of redemption here on earth as well as hereafter. To those who hold this view, the denial of the possibility of redeeming oneself in this life by repentance and reform may seem inhuman. I myself was brought up in that tradition. But … that is not the only tenable view of the matter. … there are many justifications for subjecting a wrongdoer to a life in prison.’

  Lord Judge concluded by saying that the judges were, after all, only carrying out the ‘settled will of Parliament’ which removed the possibility of imposing a whole life sentence from the politicians and placed it in the hands of the judges as a ‘discretionary element of sentencing’. There was no escaping the fact, he concluded, that the Court of Appeal in England and Wales had persistently argued in favour of the whole life term for the most heinous offences, no matter what the European Court of Human Rights might say.

  Yet the Court of Appeal can make controversial decisions – even where the most heinous of crimes are involved. It certainly did so in the case of American David Francis Bieber, who killed a serving police officer and attempted to murder two others on 26 December 2003 in Leeds, Yorkshire. The incident lasted for just eight seconds, but it reverberated throughout the criminal justice system for several years and came to epitomise the complexities of the argument about whole life terms.

  The case of David Bieber was the very first time that a judge rather than the Home Secretary imposed a whole life term of imprisonment, but to understand its significance we need to go back to the beginning.