Agency Workers - Case Comment: Tilson v Alstom Transport

The case of Tilson v Alstom Transport demonstrates the near-insurmountable difficulties faced by agency workers seeking to establish an employment relationship. Even long-serving agency workers who are deeply integrated into the client business are unlikely to acquire rights under the Employment Rights Act 1996 equal to those of an employee in the same role.

Tilson v Alstom Transport

The application of the ordinary tests of employment is not simple when it is the status of an agency worker in question. The case of Tilson v Alstom^[1] serves to demonstrate that the approach currently taken by the judiciary in determining the status of an agency worker is to apply the same tests of employment as for an ordinary worker, but to give different weight to the results. This approach is motivated on wide grounds of public policy, and leads to the treatment of agency workers as a separate ‘species’ of workers, in order to facilitate the modern framework of agency work.

In this case the services of agency worker, Mr Tilson, were supplied through two intermediary parties in a complex quadripartite agency arrangement involving three contractual relationships:

The first was an arrangement between the worker and Silversun Solutions Ltd, which was described by the employment judge as a “payment mechanism, nothing more”^[2].

The second contract was between Silversun Solutions and the agency, Morson Human Resources Limited, for the provision of Mr Tilson’s services by Silversun Solutions to the agency. Clause 3.1. states that:

“neither the company [Morson] nor the client [Alstom] shall be entitled to or seek to exercise any supervision, direction or control over the contractor [Silversun] or the operatives [Tilson]  in the manner or performance of the project”.

The third contract was between the agency and client for the provision of a range of services, including that of Mr Tilson.

Subsequent to his engagement, and contrary to the provision of clause 3.1. (above), Mr TIlson was subject to the control of his line manager and, in return, exercised control over subordinate employees. He worked for Alstom for two years, attaining a managerial position and by doing so achieved a considerable degree of integration within the client company.^[3]

After some time, Mr Tilson was offered a permanent position of employment at Alstom which he declined.

The question before the Courts was whether the relationship between Alstom and Mr Tilson created, either expressly or by its implication, a contract of service. The case turned on two points: (i) should the intention not to create an employment relationship contained within clause 3.1 be upheld by the court?; and (ii) if the express contract does not create an employment relationship is it possible to imply one?

(i) Analysis of the express contractual relationship

The court had to consider two submissions by counsel for Mr Tilson. Firstly, the wording of clause 3.1., promising no exercise of control over the worker, was argued to be a sham on grounds that it diverged from the reality of the arrangement and was intended solely to avoid creating an employment relationship.

Secondly, and if the first imputation was correct, counsel argued that the effect of the sham term would be to render the entire contract void.

The tribunal should “adopt a robust and sensible view in order to prevent the substance of the relationship being undermined by form^[4].

Elias LJ looked at the implications of such a sham term at length. He found that it was a term agreed between the two intermediary parties and was not operative between the parties before the Court. Therefore, Alstom was not at fault for this misrepresentation^[5].

The Court of Appeal decided that, although clause 3.1. might be fictitious, it would not render the remainder of the contract void. It is difficult to see the reason for which the court diverted much of its attention to this point as, whatever the outcome of the analysis, the case would still fall to be decided on the implication of a contract.

(ii) Implication of a contract

Following the principle in James v Greenwich London Borough Council^[6], Elias LJ recognised the narrow scope that exists for the implication of an employment contract: “a contract can be implied only if it is necessary to do so”^[7]. In doing so, the Court of Appeal sustained a strong line of precedent stemming from the judgment of Bingham LJ in The Aramis^[8] in which he observed that a contract could be implied where it is required to give business reality to an arrangement.

The degree of integration of Mr Tilson into the company suggests the existence of more than a simple agency relationship. The Court acknowledged that there was a significant degree of integration of the worker into the organisation, but concluded that this is “not at all inconsistent with the existence of an agency relationship”^[9]. It went on to justify this conclusion by saying that it is not uncommon for agency workers to be heavily integrated into, and subject to the control of, the client business. Indeed, such integration and control is often necessary for the worker to provide any “satisfactory service”^[10]. As a result the court gave little weight to the integration test of employment as developed by Lord Denning in Stevenson, Jordan & Harrison Ltd v Macdonald & Evans^[11].

The fact that Mr Tilson was required to apply to a line manager before taking annual leave was given as an example of this. Once again, Elias LJ concluded that such a degree of control is not necessarily inconsistent with an agency relationship.^[12] By doing so he gave greater weight to the intentions of the parties than to the control test. He said that it would not “be sufficient to imply a contract on the principle of necessity in circumstances where this was inconsistent with the stated intentions of the parties or, in some circumstances at least, one of them”.

In his concluding remarks, Elias LJ summarised that he had considered the above points cumulatively and found there to be no legitimate basis on which he could imply a contract. He therefore dismissed the appeal, after which the other two presiding judges concurred.

The effect of this judgment

This case shows that only in rare cases would an agency worker, even a longstanding one with many hallmarks of a contract of employment, be able to establish an implied contract of employment.^[13]

The court adopted the integration test and the control test as the main tools in its assessment. It was able to answer both tests in the negative by providing an alternative explanation for the results it found. For example, when it found Mr Tilson to be substantially integrated in the client’s business, the court explained this by observing that such an occurrence is not uncommon in agency work. A similar approach was used to explain the degree of control exercised over Mr Tilson.

This approach may be justified in the furtherance of public policy as it supports the current framework of agency work. However, it has the side effect of creating agency workers as a separate species to ordinary workers; a separate species upon whom the tests of employment status act with less tolerance.

Criticism of this approach is that it would not be detrimental to the current framework work if heavily integrated and controlled agency workers do achieve employee status after a significant period of service (after two years for example). If the purpose of the Employment Rights Act 1996 is to provide workers who have devoted a considerable portion of their lives with recourse against an employer then s.230 should be interpreted via the mischief rule to include long-term integrated agency workers and so combat the mischief at which the act is addressed. To maintain the balance of the current framework there would still be a greater proportion of agency workers in ordinary un-integrated agency work who do not achieve employment status.

Finally, the Court of Appeal did not explore the mutuality of obligation test at length. Elias LJ decision omitted analyses on a number of points and therefore he could not have concluded that a jury could only arrive at one result. For this reason the case should have been remitted to Tribunal.

It is very likely that an industrial jury will not find there to be a contract of employment, but the decision of the Court of Appeal in this case sets a precedent rendering it near impossible for any future agency worker to be classed as an employee. A precedent which must be followed by every Employment Tribunal and Employment Appeal Tribunal in the land.

---

^[1] [2010] EWCA Civ 1308

^[2] [2010] EWCA Civ 1308 [18]

^[3] (ibid) [3]

^[4] Protectacoat Firthglow Ltd v Szilagyi [2009] EWCA Civ 98 CA

^[5] Tilson v Alstom Transport [2010] EWCA Civ 1308 [46]

^[6] [2008] ICR 545 Per Mummery LJ: “in order to imply a contract to give business reality to what was happening, the question was whether it was necessary to imply a contract of service between the worker and the end-user”

^[7] Tilson v Alstom Transport [2010] EWCA Civ 1308 [8]

^[8] [1989] 1 Lloyd’s Rep 213

^[9] Tilson v Alstom Transport [2010] EWCA Civ 1308 [44]

^[10] (idem)

^[11] [1952] 1 T.L.R. 101

^[12] Tilson v Alstom Transport [2010] EWCA Civ 1308 [48]

^[13] Ian Smith, ‘A final shot across the bows’ [2010] 160 NLJ 7446, 1737-1739

Life Imprisonment: When Life Means Life

When Life Means Life

A critical review of the circumstances in which a 'whole life minimum term' may be imposed in English law, and the compatibility of that sentence with the European Convention on Human Rights.

What options are available to the Secretary of State in the event that the Supreme Court agrees with the European Court of Human Rights and issues a declaration of incompatibility under section 4 of the Human Rights Act 1998? 

Word Count: 3992

In 1965, life imprisonment became the mandatory sentence for murder.^[1] When passing sentence, the judge sets a minimum term for imprisonment reflecting the seriousness of the offence and taking into account aggravating and mitigating factors^[2]. Starting points are contained in schedule 21 of the Criminal Justice Act 2003 which includes provisions for the “whole life order” at paragraph 4: for an exceptionally serious offence committed by an adult aged 21 or over the starting point is a whole life order.^[3] This minimum term must be served for the purposes of retribution and deterrence. Only after these two penological grounds are met can the prisoner be considered for release on licence, provided that the Parole Board is satisfied with his rehabilitation. With respect to the most heinous offences categorised under paragraph 4 of schedule 21, parliament has determined that the grounds of retribution and deterrence will not be satisfied until the prisoner has served his whole life behind bars.

In the recent decision by the European Court of Human Rights (ECtHR) Vinter and Others v United Kingdom^[4], the Grand Chamber found that the whole-life sentences of three convicted murderers are incompatible with Article 3 of the European Convention of Human Rights (ECHR). The custodial sentences provided no scheme for reducibility and therefore deprived the prisoners of their human dignity and breached Article 3^[5]. This paper will answer the following questions:

i. Is reducibility required for a whole life order to be compatible with Article 3?

ii. Does the current statutory regime in the UK provide such reducibility?

iii. At what point in time is Article 3 breached?; and

iv. What are the options available in the event that the Supreme Court agrees with the ECtHR and issues a declaration of incompatibility?

Irreducibility

In order to comply with Article 3 the ECtHR states that the sentence must have a realistic possibility of being reduced; and that possibility must be founded on conceptually certain legal provisions (de facto and de jure reducible).^[6] The rationale behind creating a ‘reducibility requirement’ is twofold:

a. penological shift

The penological grounds in reliance upon which a whole life order is made (retribution and deterrence) may shift over time and may at some point cease to exist.^[7] In order to assess whether the grounds of retribution and deterrence continue to justify a prisoner’s detention a review mechanism, with the ability to reduce the prisoner’s sentence, must be in place to determine whether the penological grounds of retribution and deterrence continue exist.

The UK’s submitted that any formal review mechanism would offer prisoners a “tenuous hope”^[8] of release: the prisoner may be completely rehabilitated, but the primary requirements of retribution and deterrence would continue to exist. This implies that it is impossible for penological grounds to shift so that a whole life order becomes no longer justified. There is UK case law to support this view. Steyn LJ stated that there is “there is nothing logically inconsistent with the concept of a tariff by saying that there are cases where the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence”.^[9] While it may be possible to envisage circumstances where the need for deterrence will dilute over time, it is more difficult to imagine a circumstance where the desire for retribution would change. Such a change would require a drastic shift in society’s morals or decriminalisation of the relevant offence.

To oppose the UK’s belief that a whole life order is a proportionate punishment one might argue that with the passage of time it becomes a “poor guarantee of just and proportionate punishment”^[10] The whole life order remains fixed at infinity. In effect the punishment becomes greater with time, for the longer the prisoner lives the longer his sentence.^[11] This defies the very object of proportionality. Taken to its logical extreme, if the prisoner is immortal he will be punished for all eternity. It cannot be said that the requirement of retribution is infinite because the moral harm caused even by the most heinous crime cannot be infinite; a more heinous crime can always be committed which would require greater retribution. Retribution for every criminal act must have some finite value expressible in years commensurate with the gravity of the offence. The current practice of imposing whole life orders suggests not that the moral debt can never be paid, but that the moral debt cannot be paid within the prisoner’s lifetime. It follows that if there is a finite value attributable to retribution then that value has the potential to change. Infinity is an absolute concept. However the value attributed to retribution, like the moral outrage upon which it is calculated, is quantifiable and therefore subject to variation. This is because human beings, just as they have the capacity to blame, also have the capacity to forgive.

b. human dignity

The Grand Chamber believes that every criminal should have the opportunity to atone for his offence. Judge Power-Forde advocated what she described as the ‘right to hope’. She believes that all humans retain their “fundamental humanity and carry within themselves the capacity to change.”^[12] Nobody, she continues, should be deprived entirely of such hope, for to do so would be to deny them a fundamental aspect of their humanity and degrade them within the meaning of Article 3.

Respect for human dignity appears to be upheld in English case law, as in Wellington^[13] Laws LJ observed: “The abolition of the death penalty … must have been founded at least on the premise that the life of every person, however depraved, has an inalienable value”^[14] He argues that “a prisoner’s incarceration without hope of release is in many respects in like case to a sentence of death” and retributive punishment is never enough to justify the destruction of life.^[15] The view of Laws LJ is supported by that of Lord Bingham in de Boucherville v Mauritius^[16] but doubted by the Supreme Court on Wellington’s appeal. The Lords found numerous, more pragmatic arguments other than the inalienable value of human life for the abolition of the death penalty (such as irreversibility and lack of deterrent effect). Lord Scott believed that “atonement was achieved by the prisoner serving his sentence.”^[17] His implication, if this view is shared by the Supreme Court in the pending appeal of Attorney General’s Reference (No. 69 of 2013)^[18] is that release is not necessary for the purposes of atonement.

Instead, the judgment in Vinter places great value upon rehabilitation. There is a large body of international case law and statute which provide opportunity for a prisoner’s release once he has been rehabilitated. Indeed, rehabilitation is “emphasised over punishment amongst Contracting States, in international law and within European penal policy.”^[19] In the Life Imprisonment Case^[20] the German Federal Constitutional Court said that it would be incompatible with the provision on human dignity in the Basic Law for the State forcefully to deprive a person of his freedom without at least providing him with the chance someday to regain that freedom.^[21] The Court described a duty for prison authorities to “strive towards a life sentenced prisoner’s rehabilitation and that rehabilitation was constitutionally required in any community that established human dignity as its centrepiece.”^[22] In Vinter, the Grand Chamber considered that the ECHR makes a similar commitment to the preservation of human dignity.^[23] This is in line with the previous decisions of the ECtHR in Pretty v the United Kingdom^[24] and V.C. v Slovakia^[25].

When is Article 3 breached?

The scope of Article 3 is limited to ‘torture’, ‘inhuman’ and ‘degrading’ treatment. It is one thing to say that the ECHR respects human dignity, but does an irreducible whole life order qualify as sufficient ill-treatment to activate Article 3? Judge Villiger in his partly-dissenting judgment disapproved of the court’s generalised method which failed to assess each applicant’s individual situation to determine whether that individual’s treatment qualified as torture, inhuman or degrading.^[26]

To the contrary, Judge Mahoney argued that finding an irreducible sentence incompatible with Article 3 is no significant development in the case law of the ECtHR. It is not a new concept for Article 3 to be invoked at the moment in time when a prisoner’s incarceration is no longer justified on penological grounds. The significant development that comes from the Grand Chamber’s decision is “the moment when an issue may arise under Article 3 as to compatibility of a life sentence with the requirement of reducibility.”

When an irreducible sentence is handed down, is Article 3 breached (a) the moment when the review should take place, (b) at the moment when a review would determine that the prisoner is eligible for release, or is it (c) at the moment of imposition?

The Supreme Court in Wellington was of the view that an issue under Article 3 would not arise until the “the time came when further imprisonment would no longer be justified on any ground - whether for reasons of punishment, deterrence or public protection”^[27].

The difficulty with the judgment in Wellington lies in its implication that the requirement to review a prisoner’s sentence does not manifest until the time when such a review would conclude with the release of the prisoner. Such an argument might sound reasonable in theory, for it would be futile to review a prisoner who is not eligible for review, but in practice it does not work: logically it is impossible to say at what point in time a prisoner is eligible to have his sentence reviewed and be released without such a review first taking place. The mechanism for review cannot be expected to automatically activate at the moment in time when a prisoner is eligible for release, for it does not know that this moment has passed unless there have been previous reviews to determine that this is so. The time lapse between the prisoner’s eligibility for release and the time of the review actually taking place may extend the prisoner’s sentence unjustifiably by a number of weeks, months or even years.

The Grand Chamber in Vinter held that the sentence would breach Article 3 at the moment of its imposition. It reasoned that “a whole life prisoner should not be obliged to wait and serve an indeterminate number of years before he can raise a complaint”^[28]. On this basis an irreducible sentence is said to breach Article 3 ab initio.

Some rationale for this decision is provided in Judge Mahoney’s concurring judgment: he emphasises the preventative responsibilities of Contracting States under Article 3. A State’s Convention obligations, he explains, are not engaged “only for factual violations of Article 3 but also for measures foreseeably entailing potential violations in the future, so as to prevent such future violations occurring”. The case of Soering v United Kingdom^[29], an extradition case, provides authority. In this case it became the UK’s Convention obligation not to deport a prisoner to a country where he might have faced treatment contrary to Article 3. The principle of prevention in Soering can be extrapolated to the penal context: “if it can be said that there is inherent in Article 3 a prohibition on irreducible life sentences, this in itself is a preventative requirement that should logically come into play at the moment of sentencing and not later.”^[30]

It may be argued to the contrary by the UK government that since the penological ground of retribution will never cease to exist the prisoner will never be incarcerated for longer than is justifiable and that there is nothing under Article 3 for the State to prevent. This will counter the first rationale for requiring reducibility (penological shift), but not the second (atonement, human dignity and hope). This argument also relies on the infiniteness of the moral damage caused by a heinous crime; an argument which has been discredited above and so is not very persuasive.

Is the UK’s current statutory regime compliant with Article 3?

Although the Court was cautious to dictate precisely what form the mechanism of review should take, it drew attention again to strong international authority for a dedicated mechanism of review that is guaranteed by law to occur after twenty five years imprisonment including provision for subsequent periodic reviews.^[31] In the interests of legal certainty, and to uphold the rule of law, the review must be mandated by a national law which must be known to the life prisoner already at the moment of imposition of the whole life sentence.^[32]

The Secretary of State may at any time “release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds”.^[33] The UK maintains that this power is sufficient to ensure that whole life sentences provide reducibility. However, there are issues of (i) whether the scope of its application includes providing reducibility for whole life prisoners; (ii) whether the clarity surrounding the conditions in which it will operate; and (iii) whether a prisoner can be certain of its operation at the correct time when penological grounds for imprisonment cease to exist.

(i) Scope

Chapter 12 of Prison service order 4700 provides guidance to the Secretary of State for the exercise of his power of compassionate release. It gives an exhaustive list of circumstances when a life-prisoner can be released which are consistent with release on compassionate grounds and includes considerations as to the prisoner’s state of health but not the penological grounds for incarceration. The lack of reference to penological grounds when considering a prisoner for release raised great doubt as to its applicability in providing reducibility for whole life prisoners. The ECtHR observed that it could “conceivably mean that a prisoner would remain in prison, even if his continued incarceration could not be justified on legitimate penological grounds, as long as he did not become terminally incapacitated”. Furthermore, the Court doubted whether release on compassionate grounds could “really be considered release at all, if all it meant was that a prisoner died at home rather than behind prison walls”.^[34] On these bases the Court concluded that the power of the Secretary of State does not provide an adequate assessment of the penological grounds, nor did it protect prisoners’ human dignity by providing a prospect of release in order to comply with Article 3. Kommers argues in support that the legal provisions relating to the granting of pardons “do not sufficiently guarantee this [prospect of release], which makes the sentence bearable in terms of human dignity…”^[35] Returning once again to the German Federal Constitutional Court, in the Life Imprisonment Case the Court held that release only for those who are infirm or close to death is insufficient to protect human dignity.^[36]

To the contrary, the Court of Appeal in R. v Bieber^[37] gave a broader reading to the section 30 powers, saying that a whole life order is not an irreducible sentence. Section 30 gives the Secretary of State not only the power, but also the duty to release a prisoner when penological grounds cease to exist^[38] and any decision by the Secretary of State to the contrary would be “amenable to judicial review”^[39].

(ii) Clarity

In light of the conflicting nature of the Court of Appeal judgment in Bieber and the continued operation of the Prison Service Order, the scope of the Secretary of State’s power is unclear. Section 30 “passes over in silence the possible avenue of seeking release open to whole life prisoners through reliance on the Human Rights Act”^[40]. Instead the guidelines for release contained in the Prison Service Order can be presumed to be read by prisoners serving whole life sentences, as well as prison authorities, as a primary source of information regarding the sentence. The Order “remains in force and provides that release will only be ordered in certain exhaustively listed, and not merely illustrative, circumstances.^[41]” It does not reflect the wide interpretation of the Court of Appeal in Bieber relied upon by the Government to meet its Convention obligations which means that a prisoner will likely be unaware, or at least unsure, of his prospects for release.^[42]  Given the lack of clarity, the ECtHR was unable to accept the section 30 power as adequate for ensuring reducibility.

The Court of Appeal disagreed with this finding of the ECtHR on the basis that it felt the continued operation of the Prison Service order was of no real consequence as it is “overridden”^[43] by the Secretary of State’s duty to act compatibly with the Convention. Even if this is so, the issue remains that as a matter of legal certainty this information is not made explicit to a whole life prisoner unless they happen to read the Court of Appeal’s judgment in Attorney General’s Reference (No. 69 of 2013).

(iii) Certainty

One further problem with the section 30 power is that there is no moment in time stipulated by the statute when the Secretary of State must review the life prisoner’s sentence. As previously mentioned, the practical effectiveness of a system where the duty to review does not manifest until such a review would result in the prisoner’s release is doubtful. The problem is magnified in the UK where it is for the prisoner himself to apply to the Secretary of State for review, as the criteria of which the prisoner will likely be aware are the restrictive criteria set out in the Prison Service Order.

Conclusion and the options available to the UK Parliament

The whole life order is compatible with Article 3 provided that a review mechanism is available to allow reducibility. The UK argues that such a review mechanism would offer prisoners only a ‘tenuous hope’ of release. However, the ECtHR seems to place a great emphasis on rehabilitation, stating that it is an essential component of human dignity that a prisoner has the opportunity to atone for his crime. This appears to be the driving force behind its requirement for reducibility of whole life sentences.

The previous statutory system in England and Wales provided for review of a whole life order once the prisoner had served twenty five years of his sentence. The UK claims that this provision was omitted from the Criminal Justice Act 2003 in order to “judicialise decisions concerning the appropriate terms of imprisonment for the purposes of punishment and deterrence”^[44]. However, the ECtHR noted, “the need for independent judges to determine whether a whole life order may be imposed is quite separate from the need for such whole life orders to be reviewed at a later stage.”^[45] It would have been more consistent for the twenty five year review to be conducted by the judiciary, rather than the current system where the review is made by an agent of the executive (the Secretary of the State).

Therefore, the first option available to the Secretary of State, if the UK wishes wholesomely to pursue “judicialisation”, is for the judiciary to provide a review mechanism which satisfies the requirements of reducibility, clarity and certainty. The ECtHR did not dictate the precise moment in time when such a review should take place, however in order to achieve certainty a period of time must be stipulated. In view of the international support for a twenty five year review, and a similar provision existing under previous UK legislation which went uncontested, adopting this period of time before review is unlikely to raise any further issues with the ECtHR.

Alternatively, if the UK wishes to proceed with the system currently in place it must make amendments to the statutory regime in order to satisfy its Article 3 obligations. It would require amendments of Prison Service Order 4700 and section 30 of the Crime (Sentences) Act 1997 to expand the prospect of release beyond compassionate grounds by including considerations for the penological grounds of imprisonment.

It is vital to note that neither of the above scenarios would result in whole life prisoners being released before they have received their ‘just deserts’^[46] for it is entirely within the UK’s discretion to decide, upon each successive review, that the penological grounds for incarceration of a prisoner continue to exist until his grave. What is unsustainable is for the UK to argue that penological grounds will continue to exist for an infinite amount of time. To avoid further challenge it may be appropriate for the UK to adopt a sentencing practice similar to that in the United States where sentences far exceeding the life expectancy of the prisoner are often passed. In practice this has the same effect as a whole life order but represents a finite period of years which may be reduced or increased as the penological grounds for detention change over time, hence demonstrating the state’s willingness to accept that there is a minute, even “tenuous”, possibility that a prisoner might be forgiven.

Finally, an option which has attracted considerable publicity in recent months is the repeal of the Human Rights Act thereby removing the Convention from UK statute law. However, the UK would remain a member of the Council of Europe and signatory of the Convention. To absolve itself completely of its Convention obligations the UK must withdraw from the Convention – a move which has vast implications: “the only state wholly within Europe not to be a signatory to the Convention is Belarus, widely agreed to be the least democratic state in the entire continent.”^[47] It would also set in motion the UK’s withdrawal from the European Union (whose membership requires ratification of the ECHR^[48]). This would require the renegotiation of international trade, defence, competition and extradition treaties, all in order to avoid making the aforementioned legislative amendments, amendments which, in all likelihood, would not increase the expectation of a whole life prisoner’s release beyond what is already a tenuous hope.

Bibliography

Legislation

●  Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 3

●  Crime (Sentences) Act 1997

●  Criminal Justice Act 2003

●  European Council Decision 21 June 1993 (Copenhagen)

●  Murder (Abolition of the Death Penalty) Act 1965

●  Prison service order 4700

●  Rome Statute of the International Criminal Court

Case Law

●  Attorney General’s Reference (No. 69 of 2013) [2014] EWCA Crim 188

●  de Boucherville v Mauritius [2008] UKPC 37

●  Lebenslange Freiheitsstrafe 45 BVerfGE 187 (1977) (German Federal Constitutional Court)

●  Pretty v the United Kingdom (2002) 35 E.H.R.R. 1

●  R v Bieber (David Francis) [2008] EWCA Crim 1601

●  R (Hindley) v Secretary of State for the Home Department [2001] 1 AC 410

●  R (Wellington) v Secretary of State for the Home Department [2007] EWHC 1109 (Admin)

●  R (Wellington) v Secretary of State for the Home Department [2008] UKHL 72

●  Soering v United Kingdom 7 July 1989, Series A no. 161

●  V.C. v Slovakia App no 18968/07 (ECtHR, 8 November 2011)

●  Vinter v United Kingdom (2013) 34 BHRC 605

Books

●  Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (Duke University Press 1989)

Articles

●  Coe P, ‘Compatibility of whole life order with the European Convention on Human Rights’ (2013) 77(6) JCL 476

●  Szydlo M, ‘Free life after life imprisonment as a human rights under the European Convention’ (2013) 9(3) ECL Review 501

●  Thomson D, ‘The Implications of Vinter v United Kingdom’ [2013] SLT 233

---

^[1] Murder (Abolition of the Death Penalty) Act 1965

^[2] Criminal Justice Act 2003, s 269

^[3] ibid, sch 21, para 4(1)

^[4] Vinter v United Kingdom (2013) 34 BHRC 605

^[5] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 3

^[6] Kafkaris v Cyprus (2009) 49 EHRR 35, para 98

^[7] Vinter (n 4)., para 111

^[8] ibid, para 93

^[9] R (Hindley) v Secretary of State for the Home Department [2001] 1 AC 410 [416]

^[10] R (Wellington) v Secretary of State for the Home Department [2007] EWHC 1109 (Admin) [39] (Laws LJ)

^[11] Vinter (n 4)., para 112

^[12] Ibid, Concurring opinion of Judge Power-Forde

^[13] Wellington (n 10).

^[14] ibid [39]

^[15] ibid

^[16] [2008] UKPC 37 [19]

^[17] R (Wellington) v Secretary of State for the Home Department [2008] UKHL 72 (Lord Scott)

^[18] [2014] EWCA Crim 188

^[19] P Coe, ‘Compatibility of whole life order with the European Convention on Human Rights’ (2013) 77(6) JCL 476, 480

^[20] Lebenslange Freiheitsstrafe 45 BVerfGE 187 (1977) (German Federal Constitutional Court)

^[21] Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (Duke University Press 1989) 317

^[22] Lebenslange Freiheitsstrafe (n 20). [69]

^[23] Vinter (n 4)., para 113

^[24] (2002) 35 E.H.R.R. 1, para 65

^[25] App no 18968/07 (ECtHR, 8 November 2011), para 105

^[26] Vinter (n 4)., Partly-dissenting Opinion of Judge Villiger

^[27] Wellington (n 10). [81]

^[28] Vinter (n 4)., para 112

^[29]  7 July 1989, Series A no. 161, paras 88 and 90

^[30] Vinter (n 4)., Concurring Opinion of Judge Mahoney

^[31] Article 110(3) of the Rome Statute of the International Criminal Court

^[32] M Szydlo, ‘Free life after life imprisonment as a human rights under the European Convention’ (2013) 9(3) ECL Review 501, 507

^[33] Crime (Sentences) Act 1997, s 30

^[34] Vinter (n 4)., para 127

^[35] Kommers (n 21), 317

^[36] Lebenslange Freiheitsstrafe (n 20)

^[37] (David Francis) [2008] EWCA Crim 1601

^[38] ibid [66]

^[39] ibid

^[40] Vinter (n 4)., Concurring Opinion of Judge Mahoney

^[41] ibid, para 126

^[42] ibid, para 128

^[43] Attorney General’s Reference (n 18), [30]

^[44] Vinter (n 4)., para 124

^[45] ibid

^[46] D Thomson, ‘The Implications of Vinter v United Kingdom’ [2013] SLT 233, 235

^[47] ibid, 236

^[48] European Council Decision 21 June 1993 (Copenhagen)