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?

UK Government Seeks to Defy European Court of Human Rights on Whole Life Sentences

The UK Government has indicated that it will defy the European Court of Human Rights over the issue of whether the United Kingdom can impose whole life sentences for the most serious crimes.

Background

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 the release for the offender. For more information on the Court’s judgment, see this article.

The United Kingdom is obliged to remedy the human rights breach by article 46 of the ECHR, which provides that the parties to a judgment agree to be bound by it and abide by it.

The Response

The Government was required to respond to the judgment within six months. In a formal note sent to the Council of Europe – the body responsible for the ECHR – the Government said: ‘Consideration as to what steps may be necessary as a result of the judgment is currently under way. No final decisions on those issues have yet been taken’.

The note also referred to four upcoming appeals in the Court of Appeal, where the Government is expected to argue that there is no obligation to follow the ruling because section 2 of the Human Rights Act 1998 provides that British courts need only ‘take into account’ decisions of the European Court of Human Rights, and the Vinter decision was wrong. Accordingly in those limited circumstances the British courts can decline to follow the ruling of the European Court. The United Kingdom has previously agreed with this approach, in the case of R v Horncastle (2009), a case concerning hearsay evidence.

In a separate statement, the Ministry of Justice said: ‘The Government remains firmly of the view that whole-life [orders] are wholly justified in the most heinous cases, and that they should continue to be available to the courts. We will be strenuously arguing in the Court of Appeal [in other related cases] that a judge can and must impose a whole life order [in the most serious cases]’.

Comment

The Government’s statement shows that it intends for whole life orders to continue to be available to sentencing judges. This will not ease relations between the Government and the Council of Europe. The current Conservative-led government believes that the European Court of Human Rights has excessive power over member states. It is particularly irritated by the ruling in Hirst v United Kingdom (2005), which held that a complete ban on prisoners voting in the United Kingdom was unlawful.

The statement is also interesting because it is at odds with comments made by Prime Minister David Cameron last week, where he supported 100-year reviewable sentences which would comply with the European Court’s ruling, as discussed in this article.

Nevertheless, it seems to me that this is a decision that needs to be challenged. As I noted in this article, the European Court appear to have misunderstood our law. Perhaps it would decide differently if it has the opportunity to reconsider the decision with a full appreciation of our law.

What are your thoughts?

100-Year Prison Sentences for England and Wales?

This week it has been reported that whole life prison sentences in England and Wales might be replaced with 100-year prison terms.

It comes in response to a ruling from the European Court of Human Rights which declared that 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 the release for the offender.

Background

The whole life prison order is imposed for exceptionally serious crimes. A whole life order means the offender will be imprisoned for the remainder of their life: life means life. Theoretically, a whole life order can be imposed whenever a life sentence is imposed, irrespective of the offence. However, whole life orders are almost always imposed for murder. Schedule 21, paragraph 4, of the Criminal Justice Act 2003 provides that a whole life order is appropriate for the offence of murder if the sentencing court considers that the seriousness of the offence is ‘exceptionally high’. For more information on murder sentences, see this earlier article.

In the case of Vinter v United Kingdom (2013) the European Court of Human Rights held that whole life orders breach the right in article 3 ECHR not to be subjected to inhuman and degrading treatment. In essence, this was because there is no review of whole life sentences and so no prospect of release ever for the offender. The court did not object to individuals spending the remainder of their lives in prison, it objected to the lack of a review. The reasons for the judgment are dealt with in detail in this earlier article.

In order to comply with article 3, the Government is considering replacing whole life orders with reviewable 100-year prison sentences.

So how would these differ? And is the change justified?

100-Year Prison Sentences

How would 100-year prison sentences differ from whole life sentences? Not a great deal. Owing to the length of 100-year prison terms they would be whole life sentences in all but name. But, crucially, the 100-year terms would be reviewable so that they are human rights compliant.

If 100-year terms would essentially be reviewable whole life orders, why not just make whole life orders reviewable? Presumably it is because it seems absurd to call the sentence a ‘whole life’ order if it may in fact not last for the remainder of the offender’s life owing the possibility of it being reduced upon review.

However, in attempting to avoid the absurdity of whole life sentences which are not for the whole of the offender’s life, the proposal is to introduce the similarly absurd notion of 100-year sentences. There is little possibility of an offender living long enough to serve a 100-year sentence. To impose such sentences is ridiculous. In America last year, Ariel Castro, who abducted three women and held them captive for more than a decade, was sentenced to life imprisonment without the possibility of release, plus 1,000 years. This sentence was self-evidently nonsense. Passing a sentence that cannot possibly be served in full is hollow. If a sentence for the remainder of an offender’s life is intended then that should be the sentence.

This leads us neatly to the question of whether it is justifiable to impose a whole life sentence.

Are Whole Life Sentences Justifiable?

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 the earlier 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 a philosophical question which legislators should decide. Perhaps, then, our courts should continue to impose whole life sentences when it is thought such sentences are justified on the basis that the judgment in Vinter misunderstood the nature of English law. The issue can then be revisited in due course by the European Court of Human Rights.

What are your thoughts? Are whole life sentences justified? Should we move to 100-year prison sentences?

The Conservatives and Human Rights: Are they Right?

In recent weeks the news has reported that the Conservative Party has pledged to reform human rights law if it wins the next election in 2015. Theresa May, the Home Secretary, has said that the Conservatives will scrap the Human Rights Act 1998 (HRA). Chris Grayling, the Justice Secretary and Lord Chancellor, has said that the UK will withdraw from the European Convention on Human Rights (ECHR) if it is necessary. The Conservatives say that it will allow the UK to make its own decisions about human rights, rather than being dictated to by the European Court of Human Rights.

So what exactly does all this mean? And are the Conservatives right to say that we must reform human rights law drastically?

The ECHR and the HRA

The ECHR (‘the Convention’) was produced by the Council of Europe in 1950 to set down common human rights so that the horrors of the Second World War could not be repeated. For the avoidance of doubt, the Council of Europe is not part of the European Union; it is an entirely separate body comprising 47 member states. Winston Churchill, a Conservative Prime Minister, was a driving force behind the creation of the Convention. The Convention was drafted in large part by David Maxwell Fyfe, a Conservative lawyer and politician. The UK was instrumental in the drafting of the Convention and was in fact the first country to sign it on the very first day it opened for signature: 3 September 1950.

The primary rights it guarantees to citizens are:

• the right to life (Article 2);
• the right not to be tortured or subjected to inhuman or degrading treatment (Article 3);
• the right not to be forced into slavery or servitude (Article 4);
• the right to liberty (Article 5);
• the right to a fair trial (Article 6);
• the right not to be criminalised for acts that were not criminal when they occurred (Article 7);
• the right to private and family life (Article 8);
• the right to freedom of thought, conscience and religion (Article 9);
• the right to freedom of expression (Article 10);
• the right to freedom of assembly and association (Article 11);
• the right to marry (Article 12); and
• the right to not be discriminated against in respect of the other Convention rights (Article 14).

Ultimately the Convention allowed an individual to complain to the European Court of Human Rights (again, this is not related at all to the European Union) if they believe their human rights have been breached by their own country. If the Court agrees it can order the country to rectify the problem. For example, if the UK routinely tortured people, an individual could complain to the Court and, if it finds there has been torture, it could order the UK to no longer breach this human right. The rights could not, however, be enforced in this country. Although we had signed the Convention it was not actually part of our domestic law. British courts could not therefore enforce the rights.

In 1997, the Labour Government introduced the Human Rights Bill into Parliament which subsequently became the Human Rights Act 1998. The Act simply brought the Convention rights into our domestic law so that British courts could enforce the rights directly. An individual can complain to a British court that a public body had breached their human rights. If the court agrees it can, to put it simply, declare that the public body has acted unlawfully. If an individual feels that the British courts have got it wrong they can still apply to the European Court in Strasbourg. If the European Court disagrees with the British courts then the decision of the European Court is final because the UK has agreed not to breach human rights as interpreted by the European Court.

The Conservatives and Human Rights

In some cases the European Court has made decisions that the Conservatives disagree with especially. For example, the European Court has said we must give prisoners the right to vote (Hirst v United Kingdom (2005)) and we cannot deport dangerous terrorists and terror suspects if they are likely to be tortured in their own country or placed on trial where evidence obtained by torture will be used (Othman v United Kingdom (2012) – the Abu Qatada case. You can read here for more information on this case). In both these cases the British courts had said there were no breaches of human rights. The European Court disagreed and its decision was binding.

The Conservatives do not believe that the UK should have to listen to the Strasbourg Court, so it plans to scrap the HRA. If necessary, they have said they would withdraw the UK from the ECHR itself, which would mean leaving the Council of Europe.

So what implications would this have? Firstly, scrapping the HRA alone would have little effect. It would simply stop human rights claims being brought in the UK; it would not stop individuals complaining to the Strasbourg court, whose decisions would remain binding. The only effective way to stop the Strasbourg court being the final source of authority would be to withdraw from the ECHR and leave the Council of Europe (you cannot be a member if you are not signed up to the Convention).

So should we withdraw from the ECHR? In my opinion we should not, for six reasons.

Firstly, the reality is that leaving the Convention would have little practical effect. Most of the rights in the Convention have their roots in English law. English law has a proud tradition of protecting human rights and most of the convention rights would still be protected by British courts even in the absence of the Convention.

Secondly, and related to the first point, British courts would still likely look to the decisions of the European Court when deciding about human rights because it is a high authority on human rights. The influence of the Strasbourg court would not just disappear.

Thirdly, the Strasbourg court does simply ignore the views of the UK. It has occasionally accepted that it has made an incorrect decision because it did not sufficiently understand our law. This was seen recently in a case concerning hearsay evidence (Al-Khawaja v United Kingdom (2011)). The court is willing to engage in a dialogue with the British courts to ensure the correct decision is reached.

Fourthly, the majority of people agree that the Strasbourg court makes the right decisions almost always, even if they seem to protect an unpleasant minority of people in society. It just so happens that the human rights of unpleasant groups are breached more often and so they have a need to enforce them. And that is a key point. Human rights protect everyone regardless of who they are. They belong to everyone and are not subject to popular opinion.

Fifthly, and related to the fourth point, although British law would protect human rights to an extent, the ECHR remains the strongest source of human rights. If we ask ourselves, honestly, which of those rights would we be content to lose, what would the answer be? I suggest none.

Finally, and importantly, to withdraw from the ECHR would very badly affect the reputation of the UK. The UK is rightly recognised as a beacon of justice and fairness. That reputation is also economically beneficial to the UK, since foreign litigants choose British courts to decide their disagreements, at great profit to the UK economy. Leaving the ECHR would damage our reputation enormously and damage our fragile economy.

Conclusion

It appears that the Conservative party wildly misunderstands human rights law and the damaging effect it would have to withdraw from the ECHR. The UK has been at the forefront of human rights from as early as the Magna Carta in 1215. We should continue to be at the forefront in the future.

What are your thoughts?

The Abu Qatada Saga: Have Human Rights Gone Wrong?

Last week saw the end of the Abu Qatada saga, with him being deported back to his native Jordan.

The tabloid press were overjoyed that this individual had finally been removed from the country. And, they said, he would have gone a lot sooner had it not been for human rights. Some of the Conservative members of the Coalition Government agreed with this. They are determined to change the influence of human rights law so we can deport people as and when we like.

So what really was the issue and do human rights deserve to be criticised?

The Relevant Facts

The Abu Qatada saga is a long and complex one. For these purposes the following facts are sufficient. Abu Qatada is a dangerous terrorist. He has been convicted twice in his native Jordan for serious terrorist offences, both times in his absence. He was sentenced to life imprisonment with 15 years hard labour.

The UK Government wanted to deport Qatada back to Jordan because he is dangerous. It started the process of trying to deport him in 2002. He has spent most of the intervening time in prison awaiting deportation.

So what prevented the Government from deporting Qatada?

Human Rights Law: Torture and Fair Trials

Article 3 of the European Convention on Human Rights (ECHR) provides that ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment’.

This means that in any country which has signed the Convention an individual cannot be tortured. In a number of cases the question arose of whether an individual could be sent to a country where they would likely be tortured. After all, if it is unacceptable to torture an individual why should it be acceptable to send an individual to a country where we know they are going to be tortured?

In the case of Chahal v United Kingdom (1996) the European Court of Human Rights held that, even in the case of a suspected terrorist, an individual cannot be deported from a country if there are substantial grounds for believing there is a real risk of them being subjected to torture. So, when an individual is likely to be tortured when they are returned home, we cannot remove them.

The Government knew that this case would be problematic in its attempt to remove Qatada, because it was widely accepted that torture was used in Jordan. If there was a real risk Qatada would be tortured then he could not be removed on human rights grounds. To avoid this, the Government signed a ‘Memorandum of Understanding’ (MOU) with the Jordanian government, an agreement that Qatada would not be tortured if he was deported.

Armed with this MOU the Government sought to deport Qatada. However, he appealed arguing that he would be tortured. He also argued that to deport him would breach his right to a fair trial under Article 6 of the ECHR. He said that this right would be breached because any trial he would face in Jordan would allow evidence to be used against him that was obtained by torturing others. The argument was similar to the argument under Article 3. If we would not allow evidence obtained by torture to be used in a country that has signed the Convention then why should we allow an individual to be sent to a country where exactly this might happen?

The House of Lords (the highest court in the UK at the time) agreed that deporting someone in these circumstances could potentially breach Article 6. It held, in RB (Algeria) v Secretary of State for the Home Department (2009), that to deport someone where there are substantial grounds for believing that the individual would be exposed to a real risk of being subjected to ‘a flagrant denial of justice’ would violate Article 6. While it accepted that being subject to a trial which admitted evidence obtained by torture could satisfy this test, it found there was no risk of this happening on the facts. It therefore said Qatada’s deportation would be lawful.

Qatada appealed to the European Court of Human Rights (Othman v United Kingdom (2012)), making the same arguments about Articles 3 and 6. The Court dismissed the appeal on Article 3; it held that the MOU was a sufficient assurance that Qatada would not be tortured if deported. Therefore there was no breach of Article 3 by deporting him.

However, for the first time in the Court’s history, it held that deporting Qatada would breach his right to a fair trial under Article 6 because there were substantial grounds for believing that evidence obtained by torture would be used in the trial against him and this would be a flagrant denial of justice. Qatada’s deportation was therefore blocked.

Following this the Government sought further assurances from Jordan that it would not use evidence obtained by torture. Once it had done this it tried again to deport Qatada again. This time the Special Immigration Appeals Commission (a UK court) ruled that there was still a real risk of evidence obtained by torture being used, so deportation was blocked on Article 6 grounds. The Government appealed to the Court of Appeal and lost. It then looked to appeal to the Supreme Court (the House of Lords’ replacement).

However, in May, Qatada surprised everyone and announced that he would leave the UK voluntarily if a treaty was signed by the UK and Jordan guaranteeing him a fair trial that would not use torture evidence. Unsurprisingly, the treaty was enacted rapidly, and, on 7 July, Qatada left the UK for Jordan, where he is to now face terror charges.

Human Rights Gone Wrong?

Having examined the decisions then, the question is have human rights gone wrong? Did they wrongly protect Qatada? The answer must surely be no. Few are likely to argue that we should subject people to torture, or the product of it. Aside from striking at the core of a democratic society, it often produces evidence of negligible value; who would not say what they thought their torturer would want them to say to stop the torture?

Human rights often protect disliked minorities in society. But that is the whole point of them. They protect anyone who is in danger of being subject to inhuman treatment. The UK is rightly regarded as the pinnacle of justice, fairness and democracy. We set the highest standards in the world that other countries are judged by.  We should be proud of that. I accept that over a million pounds of public money in legal fees to remove an individual is a huge sum, but it is a small price to pay for justice. If you disagree, I trust you would be prepared to face a Jordanian trial?

European Court of Human Rights Rules Whole Life Sentences Breach Human Rights

The European Court of Human Rights (ECtHR) has ruled that ordering prisoners to serve the rest of their lives in prison without the prospect of release breaches their human rights.

Three murderers, Douglas Vinter, Jeremy Bamber and Peter Moore, all had a whole life sentence imposed on them for their crimes. They could never expect to be released, apart from in exceptional circumstances, such as on compassionate grounds.

They argued that never having the option to be released back into the community breached their right under Article 3 of the European Convention on Human Rights not to be subject to ‘inhuman and degrading treatment’.

The Court agreed, although it noted that the prisoners did not have the prospect of imminent release.

Before commenting on the decision I shall explain the Court’s reasons (available here).

The Judgment

Firstly, the Court was keen to stress there is nothing in principle wrong with a prisoner serving a whole life sentence, so long as there is the prospect of it being reviewed and potentially reduced. It said, for example, there was nothing wrong with detaining a prisoner for life if they posed a danger to society, so long as the sentence could be reviewed.

However, the Court held that a whole life sentence must be capable of being reduced (and therefore reviewed) for four reasons.

1) the reasons for detention are not static and can change over time. For example, if a whole life sentence is imposed to punish a prisoner and because they are a danger to society this may change if the prisoner alters their life and can show they are no longer a danger to the public;

2) a prisoner can never ‘make up’ for their offence if they have no prospect of ever being released. Instead the punishment becomes worse over time the longer the prisoner lives;

3) it is against human dignity for the State to deprive a person of their freedom indefinitely without at least providing some chance of freedom in the future; and

4) the emphasis in European penal policy is now on rehabilitation, returning people to useful life.

Therefore any sentencing regime that does not allow for the review of a life sentence will breach an individual’s right not to be subject to inhuman and degrading treatment. Reviews are necessary; it was suggested after 25 years might be appropriate. Essentially then, whole life sentences are unlawful.

English law does not allow a review of a whole life sentence. It only provides that the power to release a prisoner can be used in exceptional circumstances, such as on compassionate grounds. It therefore breaches the Article 3 right of whole life prisoners not to be subject to inhuman and degrading treatment.

From this it becomes clear why the applicants in this case cannot expect imminent release. Life sentences are not wrong in principle, but refusing to review, and potentially reduce, them is.

Comment

I personally find this decision a difficult one to agree with. I do not disagree agree at all with the notion of a review. After all granting a review merely demonstrates our compassion, compassion which an offender will have denied their victim. It differentiates society from the offender.

However, I am not sure the decision makes logical sense. Under current law (found in Schedule 21 of the Criminal Justice Act 2003) a whole life sentence can be imposed when the court considers the seriousness of the offence is ‘exceptionally high’. The order is imposed because the offence is so serious that our law judges it to be deserving of a whole life sentence. This assessment of seriousness, assuming it is correct, is unchanging: something that is exceptionally serious will remain exceptionally serious 25 years from now (presuming that murders do not become so much worse in the future that past murders appear less serious). So while a review may be necessary, what exactly will it achieve? If the assessment of the gravity of the offence remains the same then there will be no cause to reduce the sentence ever. It seems that any review will only be a formal process to satisfy the requirements of Article 3.

Our law on whole life sentences does not directly focus on the dangerousness of the offender or other related factors. It focuses only on the gravity of the offence. It makes the policy decision that those murders which are of exceptional gravity should be punished without the prospect of release. The real question therefore is not about the necessity to review any sentence. Instead, it is whether pure punishment alone can justify a whole life order? The UK Government would doubtlessly argue that it is our sovereign right to decide on which basis to sentence convicted individuals. Are we obliged to consider other factors, such as the rehabilitation of offenders?  I am not sure that a court is best placed to decide these inherently philosophical questions. Nevertheless, I believe that the European Court missed that this was the real point in this case.

It will be interesting to see how the Government decides to react to this judgment. It certainly is not pleased with it.

For more information generally on the European Convention on Human Rights, see this article.

What are your thoughts? Should we have whole life sentences? And should they be capable of review?