One step forward, two steps back: Coalition Changes to Sentencing for Murder

The vexed question of sentencing murderers returned to the headlines yesterday. A review under the Home Office and Policing Minister Damien Green is examining the idea of adopting American style sentencing in response to the Grand Chamber’s judgment in Vinter v UK [2013] ECHR 66069/09. In Vinter the Grand Chamber of the European Court held that a whole life tariff imposed without the possibility of a periodic review enabling the consideration of early release for those who had made exceptional progress infringed Article 3 ECHR.

According to the BBC under the proposals judges will no longer impose whole life tariffs but instead sentences of ‘hundreds of years, [and this] would potentially allow offenders to have their sentences reviewed and reduced.’ On first inspection it seems that murderers will no longer receive life sentences but these new hundred plus year terms. The case of Ariel Castro the Cleveland kidnapper who received a 1,000 year sentence for his crimes was cited in the media by way of example. Under Damien Green’s proposals only a murdering Methuselah might live to see the end of his sentence.

On reflection US style sentencing proposal has little to do with complying with the judgment of the European Court and more to do with creating Blairite ‘eye catching initiatives’ before the European elections. The ECHR requires that life sentences are de jure and de facto reducible. In other words there must be a legal mechanism that enables an offender the possibility of review and release, even if that possibility is a very remote one; hence the requirement for a review fixed at the outset of the sentence. Thus it was not the length of the sentence in Vinter that was the problem. Rather, the focus of concern was the fact that the whole life sentence was irreducible. It would have been compatible had the old Home Office policy of reviewing the progress of ‘lifers’ been placed on a statutory footing; but it was instead dropped in 2003. Thus arguably all that needs to be done to restore English law’s compatibility with Article 3 ECHR is for Parliament to enact a review mechanism; something that the Coalition seems to be considering much to the furry of some Conservatives.

However, this does not exhaust the applicability of the Convention in this area. The European Court has consistently said that sentences must not be ‘grossly disproportionate’ at the point they are imposed (Vinter v UK [2012] ECHR 66069/09, paras 88-89). In the absence of specific detail it is difficult to know how the proposed changes would work in practice. But murder is an offence of considerable variety and culpability. And if all murderers are to be sentenced to extremely long sentences then there would inevitably be cases where this was grossly disproportionate.