Government Argues Whole Life Sentences Can Be Imposed Despite Ruling by European Court of Human Rights

Introduction

The Government has argued in the Court of Appeal that whole life sentences can be imposed for the most serious crimes, despite a ruling by the European Court of Human Rights that whole life sentences are unlawful in their current form.

In July last year, the European Court of Human Rights ruled in Vinter v United Kingdom (2013) that whole life sentences – or whole life orders – amount to inhuman and degrading treatment, and therefore breach article 3 of the European Convention on Human Rights (ECHR), because there is no option for them to be reviewed and so no possibility of release for the offender. For more information on the Court’s judgment, see this article.

The case in the Court of Appeal concerns two individuals. The first is Ian McLoughlin, 55, a convicted double killer. McLoughlin was not given a whole life sentence when he was sentenced for his second murder last year because of the European Court’s ruling. Instead, he was given a life sentence with a minimum term of 40 years (for more information on sentences for murder, see this article). The Attorney General, Dominic Grieve, is appealing this sentence, arguing that the sentence passed was ‘unduly lenient’ under section 36 of the Criminal Justice Act 1988 and that a whole life order should have been imposed. He argued that the European Court’s ruling does not prevent whole life sentences being ordered.

The second individual is Lee Newell, 45, also a convicted double killer. He is appealing against a whole life sentence imposed in him last year, arguing that it was unlawful because of the European Court’s ruling.

It is for the Court of Appeal to determine whether whole life sentences remain justified. The appeal was heard on Friday (the 24^th).

The Government’s Argument

The Government argued that whole life orders do not breach article 3, despite the European Court’s ruling, because of section 30 of the Crime (Sentences) Act 1997. This provides that the secretary of state may release a life prisoner if there are exceptional circumstances to justify the release on compassionate grounds. The Government argued that whole life prisoners could use this section to apply for their release because, for example, they have rehabilitated. This would then lead to the review that the European Court has said is necessary to avoid breaching article 3.

It might be thought surprising if this argument is successful: it was rejected by the European Court in Vinter. It was rejected because the power in section 30 is only exercised in restricted circumstances. Prison Service Order 4700, chapter 12, provides the power of release will only be used where, amongst other things, a prisoner is suffering from a terminal illness or is bedridden or similarly incapacitated. Therefore the European Court was not satisfied that this provided a general right of review where a prisoner was claiming that their imprisonment was no longer justified because, for example, they had rehabilitated. This is seemingly powerful reasoning.

However, it is open to the Court of Appeal to read section 30 in a way that requires a general review where a prisoner is claiming there are no longer any grounds – such as punishment or deterrence – to justify their continued imprisonment, so that English law is compatible with article 3. It is entitled to do this under section 3 of the Human Rights Act 1998, which requires all legislation to be read compatibly with the ECHR so far as it is possible to do so. The Court of Appeal has previously contemplated this option, in a case called R v Bieber (2008).

An Alternative Argument

An alternative argument for the Government, and one which I believe was more appealing, was simply to contend the judgment in Vinter was wrong and that in those exceptional circumstances our courts should decline to follow it, an approach adopted in R v Horncastle (2009), a case concerning hearsay evidence.

Why was the decision wrong? In Vinter the European Court of Human Rights considered that reviews were necessary because it would violate human dignity not to allow an individual the chance to rehabilitate. However, as I pointed out in this article, this missed the point. Whole life sentences in England and Wales are imposed when the seriousness of an offence is exceptionally high. We have adopted the policy that some offences are so serious that the only suitable punishment is imprisonment for the remainder of the offender’s life; the offender forfeits their right to rehabilitate. Punishment of the offender and, to a lesser extent, deterring others from committing similar crimes justifies the sentence alone. There is no issue of rehabilitation since we have determined that the severity of some offences warrants a punishment where there is no prospect of rehabilitation. The real issue, then, is whether that approach is justified.

Whether that approach is correct or not – whether punishment and deterrence should trump rehabilitation – is not, I do not believe, a question suited to determination by a court. It is an unresolved philosophical question which legislators should decide until society is settled on how far punishment can justify prison sentences. If the Court of Appeal takes this option, and rules that whole life sentences can continue to be imposed on the basis that the judgment in Vinter misunderstood the nature of English law, then the issue can doubtlessly be revisited in due course by the European Court of Human Rights.

Conclusion

This is an important case. It was heard by five judges rather than the normal three: the Lord Chief Justice, Lord Thomas, sat alongside Lord Justice Leveson, president of Queen's Bench Division; Lady Justice Hallett; Lord Justice Treacy, who heads the sentencing council; and Mr Justice Burnett. If the Government loses the appeal it will strain the United Kingdom’s relations with the European Court even further.