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)
