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?

LawScape’s First Year

LawScape was first published precisely one year ago today. It set out with the shortly stated, but difficult to achieve, aim of digesting law and legal news in an accessible way.

The law is often complex and difficult. Legal reporting is frequently inaccurate or insufficiently precise. Moreover there are boundless misconceptions about what the law is and what it ought to be. LawScape set out quite simply to make the law understandable to those who have no legal background. In attempting to do so, it has covered the major criminal trials of the year, such as the Philpott trial; significant human rights decisions, such as the one on whole life sentences; and even philosophical issues related to the law, such as whether rape is always (equally) serious. It has also seen the start of a series of articles on the English Legal System generally, aimed at those with no experience of the law. I hope that LawScape has contributed in some small measure to your understanding of the law. If it has, it is succeeding in its aim. If it has not, then, as always, I welcome your comments and suggestions.

I confess myself surprised and humbled by the scale and diversity of readers this year. LawScape has had significant worldwide readership. This should not really be a surprise since the English legal system is the world’s leading legal system. Other countries rightly look to the example we set.

This coming year will see LawScape continue to digest law in an accessible way. Until then, I wish you all a happy and healthy new year.

Best wishes,

Daniel Setter 

Understanding Murder Sentences: When Does ‘Life’ Mean Life?

Last week Mark Bridger was jailed for life for the murder of five year old April Jones. The attack was sexually motivated.

Bridger had said that he accidently ran April over and that he could not remember where he had put her body. He was convicted unanimously by the jury. He was sentenced to life in prison and will remain in prison for the rest of his life.

A number of people I spoke to afterwards expressed confusion about life sentences, saying that others who receive a life sentence are told they may be released in future, even though they were sentenced to life imprisonment. So how does sentencing for murder work?

The Sentence for Murder

Section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 abolished the death penalty for murder. It provides that convicted murderers will instead be sentenced to life imprisonment. There is no other sentence: all murderers receive a life sentence.

Setting the ‘Tariff’

The Criminal Justice Act 2003 (section 269) provides that when a court is sentencing an individual to life imprisonment for murder it must set a ‘tariff’. This is a fixed minimum period that the offender will serve in prison.

The court must fix the tariff by reference to the seriousness of the murder. The more serious the murder is the higher the tariff will be. Schedule 21 of the 2003 Act provides guidelines for what the tariff will be in certain cases. For example, the murder of a police officer ordinarily attracts a tariff of 30 years. A murder with no especially bad features will ordinarily attract a tariff of 15 years.

However, in certain cases, if the court decides the seriousness of the murder is exceptionally high then it can make a ‘whole life order’. A whole life order is where an offender is sentenced to imprisonment for the rest of their life and will never be released. Schedule 21 suggests that whole life orders are appropriate in cases such as the murder of a child which involves sexual motivation and murder for the purpose of advancing a political, religious, racial or ideological cause (terrorism).This is the order that was made in the case of Mark Bridger. He murdered a child with a sexual motivation. In these circumstances ‘life’ means life.

The Early Release Provisions

In all cases where a whole life order is not imposed the court must order that the ‘early release provisions’ apply as soon as the offender has served the period of their tariff. The early release provisions are found in Chapter 2 of the Crime (Sentences) Act 1997. They provide that once an offender has served their tariff they must be released once the Parole Board recommends their release. The Parole Board will recommend the offender’s release if it is satisfied it is no longer necessary for the protection of the public to continue to detain the offender.

Therefore once a life prisoner has served their tariff they may be released if they are no longer a danger to the public.

After Release

When a life prisoner is released they are released on licence. They must comply with any conditions set out in the licence. The life sentence still hangs over the offender for the rest of their life. If they commit a further offence, breach their licence conditions, or otherwise become a danger to the public, they can be returned to prison under their life sentence. They will only be released again when the Parole Board recommends it.

Conclusion

A sentence of life imprisonment only means life in prison when the offender receives a whole life order. All other life prisoners have a chance to be released at some point in the future. However, the life sentence will remain with them for the rest of their life. It can be reactivated in certain circumstances and they can be returned to prison.