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?

Court of Appeal Rules Whole Life Sentences Are Justified

The Court of Appeal has ruled that whole life prison sentences are justified, despite a ruling to the contrary by the European Court of Human Rights.

The court concluded English law is in fact compatible with human rights law and therefore there is nothing precluding the imposition of whole life orders.

More to follow.

Lee Rigby Killer to Appeal Conviction

One of the two men found guilty of the horrific murder of solider Lee Rigby is to appeal against his conviction. What is the law on appeals?

Introduction

In December 2013, Michael Adebolajo and Michael Adebowale were found guilty of murdering the solider outside his army barracks in Woolwich, south London. The pair is yet to be sentenced. The judge, Mr Justice Sweeney, adjourned sentencing to await the outcome of another appeal which is considering whether whole life sentences are lawful (for more information on that appeal, see this article).

Adebolajo is now seeking to appeal against his conviction. He will be appealing on five separate grounds, one of which is that the judge refused to allow his defence – that he was acting as a soldier – to be determined by the jury. He alleges that the United Kingdom is at war with Muslims and therefore his attack was a military strike. In English law, murder cannot be committed in the heat and exercise of war, so a military strike can theoretically be a defence.

What is the law on appeals against conviction?

Appeals Against Conviction: Permission

Adebolajo is entitled, as are all convicted offenders, to appeal against his conviction under section 1 of the Criminal Appeal Act 1968. In order to appeal, section 1 of the 1968 Act provides that the offender has to obtain permission (or leave) to appeal from the Court of Appeal. Alternatively, the trial court can grant permission within 28 days of the conviction. Ordinarily it is necessary to seek permission from the Court of Appeal. The application for permission to appeal (which identifies the reasons, or grounds, for appeal) must be made within 28 days of the conviction, under section 18 of the 1968 Act.

The grounds for appeal are normally considered by a single judge on the case papers alone; there will be no actual hearing. The judge can grant leave to appeal if they feel there are grounds for an appeal or they can reject the appeal if they find there are no grounds for an appeal. Should the application for permission to appeal be rejected, the applicant can make a renewed application for appeal within 14 days of the refusal under rule 65.5 of the Criminal Procedure Rules 2013. These renewed applications are heard in person, normally by three judges.

Appeal Against Conviction: Grounds for Appeal

In the event that leave to appeal is granted, the question to be determined at the appeal is set out in section 2 of the 1986 Act. That provides that an appeal will be successful if, and only if, the Court of Appeal considers that the conviction is ‘unsafe’.

Any argument can be deployed to contend that a conviction is unsafe. Common arguments focus on evidence that was arguably wrongfully admitted or excluded, alleged errors on the part of lawyers, defects in the indictment and the conduct of the judge.

In the event that the Court of Appeal agrees the conviction is unsafe, it shall quash the conviction under section 2 of the 1968 Act. It may order a retrial under section 7 of the 1968 Act if the interests of justice so require. Otherwise section 2 provides the defendant shall be treated as though they were acquitted at trial – that is, found not guilty.

Comment

I would be surprised if Adebolajo’s appeal is successful. The evidence against him was remarkably strong. It is almost impossible to argue he killed Lee Rigby in the course of a war, and certainly not in the heat of a war. Even if there were errors during the trial, it would be surprising if they were enough to convince the Court of Appeal that Adebolajo’s conviction is unsafe.

Marital Coercion Defence to be Repealed

The abolition of the defence of marital coercion has now been confirmed, after an amendment was agreed to a new law passing through Parliament.

The defence allowed a wife to avoid responsibility for a crime where she could show that she acted under the coercion of her husband. The defence is fully explained in this article.

Last week, I noted the announcement that the defence was to be revoked.

The amendment has been made Anti-social Behaviour, Crime and Policing Bill. Amendment 94EA, which was moved by Lord Faulks, inserts a new clause 163 as follows:

“Abolition of defence of marital coercion

(1) The defence of marital coercion is abolished.

(2) Accordingly, section 47 of the Criminal Justice Act 1925 (coercion of married woman by husband) is repealed.

(3) This section does not have effect in respect of an offence alleged to have been committed before the date on which it comes into force.”

It is important to note sub-clause (3), which provides the defence will still be available in those cases where an alleged offence occurs before the date the defence is abolished, even if the trial occurs after the defence is revoked.

Lord Pannick, who initially tabled the amendment, said: ‘I am delighted that this truly idiotic provision of English is at long last to be abolished’.

Meanwhile, the Government has confirmed it is dropping plans in the Anti-social Behaviour, Crime and Policing Bill to replace antisocial behaviour orders (ASBOs) with new injunctions to prevent nuisance and annoyance (IPNAs). It follows widespread concern that they could criminalise any nuisance or annoying behaviour, including peaceful protest, street preachers and even church bellringers and carol singers. Instead, the original test for imposing an ASBO will continue to apply.

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.

Defence of Marital Coercion to be Abolished

It has been announced that the defence of marital coercion is to be abolished.

The defence was notoriously used unsuccessfully by Vicky Pryce last year, who sought to use the defence to avoid responsibility for accepting speeding points for her ex-husband, the former Secretary of State for Energy and Climate Change, Chris Huhne. Both were subsequently imprisoned for perverting the course of justice. For more information on that story, see this article.

The Defence of Marital Coercion

As I explained in this article, the defence of marital coercion is based on an old legal presumption that any crime committed by a wife in the presence of their husband was under coercion. The presumption was abolished by section 47 of the Criminal Justice Act 1925, but a defence remained. Section 47 provides that in any case apart from treason and murder it is a good defence for a wife to say an offence was committed in the presence of their husband under their coercion. The wife has to show on the balance of probabilities (that it is more likely that not) that their will was overcome by the coercion of the husband to commit the offence.

The defence is widely thought of as out of place in the 21^st century. It can only be used by a woman married to a man. The Law Commission has said the defence is not appropriate to modern conditions. Moreover, we are all protected by defence of duress if we commit an offence (not murder, attempted murder or treason) because of a threat of serious harm.

Abolishing the Defence

The Home Office minister Lord Taylor of Holbeach has indicated the Government’s support for the abolition, which will be achieved by an amendment to the Anti-social Behaviour, Crime and Policing Bill.

The amendment was tabled last year by the eminent lawyer, Lord Pannick QC. In response to the decision to abolish the defence, he said: ‘I welcome the Government’s decision to remove an absurd law that should have been abolished a long time ago’.

Conclusion

Abolishing this defence is, in my opinion, the entirely proper thing to do. It is plainly out of date in modern times.

What are your thoughts?

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?