Court of Appeal Rules Whole Life Orders Do Not Breach Human Rights

The Court of Appeal has this week ruled that the current regime of whole life prison sentences do not breach human rights, notwithstanding a ruling from the European Court of Human Rights finding otherwise.

Background

The Court of Appeal was asked to consider the legality of whole life sentences after challenges to them were mounted based on the ruling of the European Court of Human Rights in Vinter v United Kingdom (2013). In that case the Court held that whole life sentences – or whole life orders – amounted to inhuman and degrading treatment, and therefore breached article 3 of the European Convention on Human Rights (ECHR), because there was 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 concerned two individuals. The first was 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, appealed the 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 did not prevent whole life sentences being ordered.

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

The Government’s Argument

In short, the Government argued that whole life orders did 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 and there is no longer justification for their imprisonment. This would then lead to the review that the European Court had said was necessary to avoid breaching article 3.

This argument 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.

The Government argued in the Court of Appeal that the European Court had misunderstood English law. It argued that when the Secretary of State considers an application for release under section 30, they are required to act compatibly with human rights under section 6 of the Human Rights Act 1998. Therefore the Secretary of State would be required to order the release of a prisoner whenever the continued detention of the prisoner would breach article 3 – where there is no longer any justification for the detention – even if the prisoner did not satisfy the terms of Prison Service order 4700. In essence, section 30 would have to be read as requiring release of a prisoner whenever continued detention would violate article 3. This reading is permissible under section 3 of the Human Rights Act. The Court of Appeal had previously contemplated this in a case called R v Bieber (2008).

The Judgement of the Court of Appeal

The Court of Appeal accepted the Government’s argument. It held, firstly, that the decision in Vinter did not dispute that some crimes are so horrific that imprisonment for life is justified. Secondly, it accepted that section 30 must be read in a way which is compatible with the article 3, and that the Secretary of State must use the power in section 30 in a way that is compatible with article 3 and is not entitled only to take into account the policy in the Prison Service Order. Therefore, a prisoner would be entitled to be released under section 30 whenever their continued detention would breach article 3, namely, where there is no longer any justification for the detention. Accordingly, since there is a right of review, English law was compatible with article 3 and the European Court was wrong to find otherwise. Whole life orders can continue to be imposed.

McLoughlin’s sentence was increased to a whole life order and Newell’s whole life order was confirmed.

Comment

This is an unsurprising decision. The Court of Appeal essentially confirmed its earlier decision in Bieber. The Court could have taken a considerably stronger position and held that the European Court was wrong to say that whole life sentences must be reviewable. 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. If an offence is so serious that the only acceptable form of punishment is imprisonment for life, then there is no need for a review since the offender will not have been adequately punished until they end their life in prison. It is difficult to see what could change to justify releasing the prisoner when punishment alone demands a whole life sentence. The Court of Appeal appeared to recognise this.

Had the Court of Appeal accepted this the issue would have been whether this approach is justified. To that question I would argue that the correctness of that approach – whether punishment alone can justify imprisonment for life – is not 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.

That would have been a valiant but controversial decision. It would almost certainly be appealed to the European Court again. Indeed, the Court of Appeal’s decision may yet be appealed.

The judgment is known as R v McLoughlin and can be found here.

What are your thoughts on the decision?