Life means Life? Whole Life Sentences and the ECHR

Richard A. EdwardsILHRU. UWE Bristol.

Last week the Home Secretary announced to the Police Federation annual conference a proposal that anyone who murders a police officer in the execution of his/her duty would receive a life sentence; a sentence where life would mean the rest of the prisoner’s life. Naturally enough given the forum chosen for its announcement, the detail of the Home Secretary’s proposal is sketchy. ‘Eye catching initiatives‘ are rarely fully formed proposals. Be that as it may, the Home Secretary could either mean that a new mandatory life sentence will be enacted separately, or that the provisions of schedule 21 to the Criminal Justice Act 2003 (CJA) will be amended by order to make provision for the new sentence. In the case of the latter this would mean that the prisoner would in all likelihood receive a whole life tariff rather than a thirty year one presently. (R v Bieber [2008] EWCA Crim 1601)

Punishment for murder is regulated by section 269 and schedule 21 of the CJA 2003. Under these provisions the mandatory life sentence for murder is essentially divided into two phases. The first involves the setting of a minimum term for the purposes of punishment and deterrence. Once this first period is served by the prisoner he/she enters a second phase whereby he/she become eligible for release by the Parole Board. The Parole Board may release the prisoner on licence where he/she is considered not to present a risk to public safety. Thus the first stage is governed by punitive considerations, and the second, by risk. The minimum term is set by the trial judge under the provisions of schedule 21 which provides a starting point for the assessment of the seriousness of the offence. The trial judge will then take into account mitigating and aggravating factors. This as the Court of Appeal has stressed is not a tick box exercise, and the 2003 Act is not a straightjacket (R v Height [2008] EWCA Crim 2500, para 29; R v Oakes [2012] EWCA Crim 2435). Sentencing is par excellence an exercise in judicial discretion.

Naturally, there are cases where the offence can be so serious that a whole life sentence is appropriate. The whole life sentence is nothing new, predating the 2003 Act. In Hindley Lord Bingham LCJ observed that he could ‘see no reason, in principle, why a crime or crimes, if sufficiently heinous, should not be regarded as deserving lifelong incarceration for purposes of pure punishment’ R v Secretary of State ex parte Hindley [1998] QB 751, 769 (Approved later by the House of Lords). This is a draconian penalty that is used as a sentence of last resort for extreme cases. The period set for retribution and deterrence is the whole of the prisoner’s natural life. There is no possibility of release save on compassionate grounds under section 30 of the Crimes (Sentences) Act 1997. This begs the question ‘is this sentence compatible with the ECHR?’

Under both European and comparative case law grossly disproportionate sentences can amount to an infringement of Article 3 (inhuman or degrading punishment) at the point of their imposition. (Ahmad v UK [2012] ECHR 24027/07, para 237). Thus a mandatory life sentence for a trivial offence, such as speeding or possession of a class C substance, would be incompatible with Article 3. These are trivial examples, but the test does have its applications and has developed more fully in other jurisdictions where politicians have peppered the statute book with ill-advised minimum sentences (R v Offen [2000] EWCA Crim 96). However, a life sentence without parole will not be grossly disproportionate when imposed under schedule 21. The sentence is imposed after a careful weighing of mitigating and aggravating factors for the most serious offence. Nevertheless, as the European Court has observed, an issue can potentially arise under Article 3 where the prisoner’s continued ‘imprisonment can no longer be justified on any legitimate penological grounds (such as punishment, deterrence, public protection or rehabilitation) and the sentence is irreducible de facto and de iure.’ (Ahmad, para 241). The European Court also reached similar conclusions with respect to mandatory minimum sentences lacking any discretionary element. Such mandatory minima will be subject to greater Convention scrutiny because of the increased possibility that they are grossly disproportionate. This species of minimum sentence remove any possibly of an individually tailored sentence because they completely deny the sentencing judge any discretion.

Nevertheless, the majority of mandatory life sentences are split into two phases, one punitive and the other preventative. Consequently, these sentences ordinarily do not raise issues under the ECHR. (R v Anderson [2002] UKHL 46; R v Lickniak [2002] UKHL 47). Crucially, however, the whole life sentence is not so divided. It is wholly punitive, and there is no possibility of parole. In Lickniak Lord Bingham noted that ‘if the House had concluded that on imposition of a mandatory life sentence for murder the convicted murderer forfeited his liberty to the state for the rest of his days, to remain in custody until (if ever) the Home Secretary concluded that the public interest would be better served by his release than by his continued detention, I would have little doubt that such a sentence would be found to violate articles 3 and 5 of the European Convention on Human Rights.’ (para 8.) Subsequent case law has tentatively confirmed this view.

In de Boucherville v Mauritius [2008] UKPC 37 the Judicial Committee of the Privy Council held that a mandatory sentence of penal servitude for life without parole is ‘manifestly disproportionate and arbitrary and so contrary to section 10 of the Constitution of Mauritius.’ (para 23. Section 10 guarantees the protection of the law) This stands in contrast to the European Court’s view that the requirements of legality under Article 5(4) ECHR were satisfied by the original sentence of the court when the prisoner receives a whole life sentence. (Kafkaris (No.2) v Cyprus [2011] ECHR 9644/09, para 61) In de Boucherville the Privy Council declined to consider whether the sentence was inhuman or degrading punishment under section 7 of the Constitution as it had not enjoyed full argument on the availability of the prerogative of mercy to mitigate application of the sentence.

However, before the European Court there has been a focus on the irreducibility of the sentence. The leading authority here is Kafkaris v Cyprus [2008] ECHR 21906/04. In deciding ‘whether a life sentence in a given case can be regarded as irreducible the Court has sought to ascertain whether a life prisoner can be said to have any prospect of release.’ (paras 97-98) Where the law provides for the ‘review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner’ a whole life sentence will be compatible with Article 3 (para 99). In other words, the sentence must be de jure and de facto reducible. In Cyprus this requirement was met by either the President ordering the release of such a prisoner under the power of mercy (Article 53(4) Constitution) or by ordering his release on licence under section 14 of the Prison Law 1996. Nonetheless, a point may come during the lengthy imprisonment of a prisoner sentenced under a whole life sentence where that imprisonment no longer serves a legitimate penological purpose. What then?

In Vinter v United Kingdom [2012] ECHR 66069/0 the European Court had further cause to examine the issue again, this time in the context of English whole life sentences. The European Court held that the applications were largely moot, and they were consequently dismissed. Nevertheless the Court made some important remarks that should not be overlooked. First, the European Court noted that the scope for review and release of prisoners under whole life sentences was very limited in English law. More limited in fact than the rudimentary arrangements in Kafkaris. The old Home Office system of periodic review after twenty five years seems to have fallen by the wayside. (R v Secretary of State ex parte Hindley [2001] 1 AC 410) Now a prisoner can only be released by the Home Secretary on compassionate grounds under section 30 (above). Second, the European Court doubted ‘whether the compassionate release for the terminally ill or physically incapacitated could really be considered release at all, if all that it means is that a prisoner dies at home or in a hospice rather than behind prison walls.’ (para 95) And third, there was a strong possibility that under English law ‘a prisoner will remain in prison even if his continued imprisonment cannot be justified on any legitimate penological grounds, as long as he does not become terminally ill or physically incapacitated.’ (para 94) A violation of Article 3 would be inevitable in those circumstances.

Here there is something to be learnt from German constitutional law. In 2BvR 2299/09 the German Constitutional Court heard a complaint from a Turkish national, D, whose extradition to Turkey was sought to face charges relating to a terrorist attack in Kurdistan. On conviction he would face an aggravated life sentence with the possible of parole. Only the presidential prerogative of mercy under Article 104(b) of the Turkish Constitution would offer any hope of release albeit on the grounds of ‘on grounds of chronic illness, disability, or old age.’ There was no other possibility for release. The Constitutional Court held to extradite someone who would be subject to this regime would be incompatible with the principles of the German constitutional order. There needs to be some hope that the prisoner might die free. While under sentence the prisoner should be able to live in hope of eventual release, otherwise he will eventually endure a degree of psychological suffering that is incompatible with his dignity rights protected by Article 1(1) of the Basic Law. The possibility of a presidential pardon is too vague to meet this requirement. Instead, there should be an automatic review of the sentence in order to assess the development of the prisoner. The review ought to offer a practical and effective chance of release. 

English law seems to be deficient in two important aspects. First, there is an absence of periodic reviews for those subject to whole life sentences. Quite why the old Home Office practice was not enshrined in statute is unclear. But its absence is a lacuna that ought to be remedied. And second, if the Home Secretary was considered to be constitutionally incompetent to take decisions relating to the fixing of the tariff of life prisoners because of separation of powers considerations, then the same is true of decisions to release prisoners (V v. United Kingdom [1999] ECHR 24888/94, para 114; Stafford v United Kingdom [2002] ECHR 46295/99, para 78). This is particularly true of the sort of individuals that will attract a whole life sentence, who will undoubtedly be notorious. Politicians are understandably swayed by public opinion, as the Ronnie Biggs case showed. Public opinion, in this sense, can have no place in the administration of justice. The Parole Board would be better suited to the task.

Indeed, it is a desire to court public opinion that drives much of the development of the law in the area. Mrs May’s latest proposal is another example. As Lord Mustill noted ’the mandatory life sentence for murder is symbolic.’ (R v Secretary of State for the Home Department, ex p. Doody [1993] UKHL 8) Not surprisingly, politicians have given it considerable attention. Historically, much of the policy and practice relating to life sentences was developed not by Parliament but by the executive. Yet Parliament’s recent intervention in this area has not been wholly beneficial. This statutory regime has been aptly described by Lord Lloyd of Berwick as an:

‘attempt to control sentencing from the sidelines … [and] has two very great dangers. The first is that you tie the judges down so tight that they cannot do justice in the particular case. The second, which perhaps is even more sinister, is that the level of sentencing will become a sort of political football, with each side wanting to appear tougher on sentencing than the other. That may to some extent have already started but if it were ever to become a reality it would spell an end to the idea of a just sentence for the individual convict.’ 

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