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.