• Crime and Society
    • On Good Authority
    • Announcements
  • IASOC
    • Discounts
    • IASOC Announcements
    • IASOC Prize Nominations
    • Tokens Manual
  • About Us
    • Staff
  • IASOC Dinner RSVP
  • Global and Transnational Crimes Conference

The Whole-Life Sentence, Article 3 ECHR Compatibility Conundrum

1/28/2014

 
by Andrew Jenkins 

The UK is currently engaged in a dispute with the European Court of Human Rights (ECtHR) over the Strasbourg court’s ruling that whole-life sentences of imprisonment, without the possibility of release, breach Article 3 of the European Convention on Human Rights (ECHR) in that it amounts to inhumane or degrading treatment.

The case was brought by three prisoners currently serving such sentences, Jeremy Bomber, Peter Moore, and Douglas Vinter. The ECtHR ruled in July 2013 that:

“For a life sentence to remain compatible with Article 3 there had to be both a possibility of release and a possibility of review.”

Therefore the sentence currently used by the UK is in breach of its obligation to abide by the ECHR. However the ECtHR did make it clear that those prisoners need not be released following a review if a reason is found to justify their continued imprisonment. The judgment states:

“[T]he finding of a violation in the applicants’ cases should not be understood as giving them any prospect of imminent release. Whether or not they should be released would depend, for example, on whether there were still legitimate penological grounds for their continued detention and whether they should continue to be detained on grounds of dangerousness. These questions were not in issue.”

Following this ruling it is such that those sentenced to life imprisonment may never be released and that no objection is taken to whole-life sentences in themselves, so long as a mechanism is in place to review the continued detention of those subjected to them.

The Criminal Justice Act 2003 very helpfully sets out five purposes of sentencing in s.142: the punishment of offenders; the reduction of crime; the reform and rehabilitation of offenders; the protection of the public; and the making of reparation by offenders to persons affected by their offences.

It appears, provided that whole-life sentences are only handed out to the most serious of offenders that three of the five apply rather well in justifying their continued imprisonment. One can see why the ECtHR has ruled that to imprison a person for the remainder of their life without the possibility of even a review would breach Article 3, but the ruling may prove to be rather impotent, even if adopted.

The ruling has left a loophole whereby compliance can be achieved by way of a review and yet a whole-life sentence always imposed. In saying release is dependent on whether there are still legitimate penological grounds for their continued detention, the UK can review, thus complying with Article 3 of the ECHR and never release a whole-life prisoner.

Say a review is held. From the outset two of the five purposes of sentencing can be dismissed as they do not apply in these cases: the reform and rehabilitation of offenders; and the making of reparation by offenders. Two of the remaining three are very similar so can be dealt with together, if either, the person is thought to still pose a danger to the public, they should not be released, or alternatively they may not be considered dangerous but it is thought they would commit further offences upon release, so they should not be released.

However the previous two grounds may in fact never be needed to justify the continued detention of a whole-life prisoner because, as written in statute, a purpose of sentencing is the punishment of offenders. At each review it would be a legitimate penological justification to conclude that the length of time currently served is insufficient to amount to the adequate punishment of the offender for their crime. This would allow whole-life sentences to continue in practice uninhibited.

Who would be responsible for conducting such reviews is another matter of some contention. The situation previous to the implementation of the Criminal Justice Act 2003 was that life sentences were automatically reviewed after 25 years by the Executive under judicial supervision. The 25 year review and the role of the Executive was completely abolished by the 2003 Act, although the opinion of the ECtHR, contained in the judgment, is that it would have been preferable if the role had been passed solely to the Judiciary.

The UK has issued a response to the ECtHR stating:

“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.”

However a more telling indication of the Government’s attitude to the ruling is present in the Court of Appeal hearing wherein, on the 24th January 2014, the case has been argued on behalf of the Attorney General that two men found guilty of murder should receive whole-life sentences on the basis that domestic UK law already meets the requirements for review called for by the ECtHR.

It was argued that under s.30 of the Crime (Sentences) Act 1997 the Secretary of State may release a prisoner on licence at any time, if satisfied that exceptional circumstances exist which justify release on compassionate grounds. The law is currently too restrictive to satisfy the ECtHR but if the Court of Appeal were to reinterpret the law so as to suggest that s.30 require regular reviews of whole-life prisoners to determine whether they meet the requirement for release on compassionate grounds the issue could be resolved, if that review were carried out by the Judiciary.

The issue is of course conveniently presented as one of parliamentary sovereignty, not as one of criminal justice and the appropriateness of the punishment, thus clouding the debate and presenting a bias in favour of whole-life sentences simply because Strasbourg appears to be interfering with domestic law by claiming the sentences are illegal (in their present form).

There is growing anti-EU sentiment in the UK signalled by the growth in popularity of the UK Independence Party and the Conservatives’ promise of a referendum on membership of the EU should they be elected in 2015. David Cameron recently dismissed the ECtHR ruling by suggesting that 100 year sentences would be employed to counteract the ruling and Lord Judge has also question the legality of European intervention in domestic law as a breach of the primary principle of the UK constitution, parliamentary sovereignty.

What is certain is that the UK Government will want to appear to have made a stand against the apparent interference of the ECtHR in domestic law, while subtly finding a means by which to comply.

Mark Duggan: Lawfully Killed?

1/14/2014

 
by Andrew Jenkins  

On the 4th August 2011 Mark Duggan was in a minicab in Tottenham, London, when it was stopped by armed police who believed Mark Duggan to be in position of a firearm. Mark Duggan got out of the minicab and was lethally shot twice in the chest by a police marksman codenamed V53.

V53 testified that he saw a gun in Mark Duggan’s right hand and believed that he intended to use it against the officer or his colleagues, thus arguing that the shooting occurred in an act of self-defence. A second officer, W70, also testified to seeing a gun in Duggan’s hand.

Although no gun was found in Duggan’s possession after the shooting, a gun wrapped in a sock was recovered three to six metres away from where the fatal shooting took place.

It is widely accepted that the shooting of Mark Duggan acted as a catalyst for the riots which began in London and subsequently spread to other parts of the UK in the nights after the 4th August 2011. Whether the behaviour of the rioters had any connection to the shooting of Mark Duggan is a matter for debate and in my opinion the connection was severed once the disorder transferred beyond the initial clashes with police in Tottenham, to widespread looting and vandalism across other parts of the capital.

Given the controversial nature of Mark Duggan’s death on the 9th January 2013 His Honour Judge Cutler CBE was appointed to chair a jury inquest into the events of the 4th August 2011. The jury returned their verdict on the 8th January 2014, deciding with a majority of eight to two, that Mark Duggan had been lawfully killed despite also finding that he was unarmed at the time the shooting took place.

The decision has not been accepted without criticism, Mark Duggan’s family; understandably believe the decision to be unjust, whilst Diane Abbott MP said on twitter that she was “baffled” by the decision.

The criticism has arisen out of the jury’s finding that Mark Duggan was unarmed at the time he was shot, therefore raising the question: how could he have been lawfully killed if he were unarmed?

I do not think that this decision is perverse, in fact given the step by step decision making process adhered to by the jury, one suspects that this decision may in fact be far more reasonable than many decisions made by juries in criminal trials, who are, admittedly advised, but not forced to adhere to the same strict decision making process and guidelines.

I intend to briefly address the decisions made by the jury at each stage of their deliberations, beginning with whether in the period between midday on the 3rd August and the shooting on the 4th August 2011 MPS and SOCA did the best they realistically could to gather and react to intelligence about the possibility of Mark Duggan collecting a gun from Mr Hutchinson Foster.

The jury unanimously found that the relevant agencies had not done all they could, suggesting instead that there was not enough intelligence and information on Mr Hutchinson Foster, and there was a lack of emphasis on exhausting all avenues, which may have had implications on subsequent events. Also there was insufficient information on intelligence gathering between 9pm on the 3rd August (after surveillance had lost Mark Duggan) and the 4th August when new intelligence which led to his location came in.

These findings indicate that there were operational failures in intelligence gathering and the use of that intelligence, but that does not mean that Duggan was unlawfully killed.

 The second question: was the stop conducted in a location and in a way which minimised to the greatest extent possible recourse to lethal force? Was answered as a unanimous yes, thus finding the officers involved did not act improperly in the way they stopped the minicab.

In response to the third question, crucially all ten jurors concluded that Duggan had the gun in his possession whilst in the minicab immediately before being stopped by the police.

Question four asked how the gun came to be on the grass where it was later found by police. Nine jurors reached the conclusion that the gun was thrown by Mark Duggan (eight believe from the minicab, one from the pavement after exiting the minicab), whilst one juror found that there was not enough evidence to reach a conclusion.

 The fifth and final fact-finding question was whether Mark Duggan had the gun in his hand at the time he was fatally shot. Eight jurors were sure that he did not, one thought it more likely than not that he did not, and one thought it more likely than not that he did.

 The burden of proof does not rest with the officer (V53), rather the jury had to be sure that the actions were unlawful. Furthermore the actions of V53 must be judged from his perspective; whether he believed an attack was imminent and was the response reasonable in all the circumstances as V53 believed them to be. Or alternatively was V53 acting to prevent a crime and were his actions reasonable? Only if the answer to both points is no can a verdict of unlawful killing be reached.

Given V53’s testimony that he saw a gun in the hand of Mark Duggan, his response was not unreasonable and disproportionate, even if that belief was mistaken. This is where the failure of the intelligence services may have played a vital role, if V53 was under the impression that Duggan was in possession of a firearm (which arguably he was until moments before the incident took place) then his actions at the time a split second decision had to be made are arguably more understandable.

Eight jurors concluded that Mark Duggan was lawfully killed, whilst two returned an open conclusion as they believed there was insufficient proof to the required standard.

It is regrettable that a young man has lost his life in this incident and that the incident itself may have been avoided, but the verdict of this inquest is by no means unjust, perverse, or baffling. Mark Duggan was in possession of a gun until moments before he was fatally shot, and the officer was right to assume that Duggan was armed as he did not see him dispose of the gun. There were mistakes made by the police but none so serious as to label the events of the 4th August 2011 an execution.

The only available recourse for Mark Duggan’s family is a judicial review, which one strongly suspects will find no fault with the inquest, but may be worthwhile if only to put this matter to rest.

    Contemporary Criminal Debates

    RSS Feed

    Picture

    Andrew Jenkins

    Andrew Jenkins is a lawyer, criminologist and playwright. 

    Contact Andrew

    Recent Posts

    Archives

    January 2016
    November 2015
    October 2015
    August 2015
    May 2015
    March 2015
    February 2015
    January 2015
    December 2014
    November 2014
    October 2014
    September 2014
    August 2014
    July 2014
    June 2014
    May 2014
    April 2014
    March 2014
    February 2014
    January 2014
    December 2013
    November 2013
    October 2013
    September 2013
    August 2013

    Categories

    All

© 2013-2017 The Judicalis Group.  All Rights Reserved. 
Home |Copyright and Authorship |About Us | Contact Us | Terms of Service | Privacy | Join Us | Contribute | Opportunities | RSS | Report an error 
Judicalis Contributor Wiki | M4 Corridor Consortium