Today the Court of Appeal is expected become the latest, in a long succession of courts, to consider whether murderers can continue to be sentenced to life imprisonment without any prospect of release.
Several test cases have been selected for the hearing. The most likely to get an ‘airing’ relates to Ian McLoughlin, who was sentenced, last year, to serve a minimum of 40 years before being considered for parole. The Attorney General, feels that this 40-year tariff was “unduly lenient”, despite being the equivalent of a fixed term of 80 years. He argues that a whole-life order was the appropriate sentence under schedule 21 of the Criminal Justice Act 2003 in the case of someone who, like McLoughlin, was a murderer who had previously been convicted of murder.
Whilst it is clear that there is power under domestic law (Scottish law does not allow for whole life tariffs), the issue that the Court of Appeal will have to address is whether Schedule 21 is compatible with article 3 of the European Convention, which bans “inhuman or degrading treatment or punishment”.
European Court of Human Rights and Vinter
Grayling’s favourite judicial body gave judgment in the case of Vinter v UK  ECHR 61 last year around how whole life tariff’s operated in England and Wales.
The Court looked at the practice across Europe, as well as various international instruments, concluding that the overwhelming practice was not to impose sentences where there is no chance of release (paras 59-81). As regards whole-life tariffs the court said:
“Hope is an important and constitutive aspect of the human person. Those who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change. Long and deserved though their prison sentences may be, they retain the right to hope that, someday, they may have atoned for the wrongs which they have committed … To deny them the experience of hope would be to deny a fundamental aspect of their humanity and, to do that, would be degrading.”
The UK government had indeed accepted that any sentence that was ‘grossly disproportionate’ would be ill-treatment that was incompatible with Art 3 and therefore unlawful. However they argued that s30 Crime (Sentences) Act 1997 provided an effective review of a whole life sentence because it allowed the Secretary of State to release a life prisoner at any time, on the basis of there being ‘exceptional circumstances’ existing which might ‘justify the prisoner’s release on compassionate grounds’.
However the court’s grand chamber was not convinced. There needed to be “both a prospect of release and a possibility of review” for a life sentence to be compatible with article 3. Section 30 of the 1997 Act was so restrictive, and not truly independent, that it could not, in the eyes of the court, amount to a proper review mechanism. In stating that the human rights of the three lifers who had taken their cases to Strasbourg: Douglas Vinter, Jeremy Bamber and Peter Moore had been breached, the judges were keen to stress that their ruling gave the three prisoners no prospect of imminent release.
Vinter, has certainly thrown a spanner in the work of those tasked with sentencing on the most serious cases. Mr Justice Sweeney, the judge in McLoughlin, certainly felt he was unable to impose a whole life sentence in that case because it would breach article 3, as did Mr Justice Flaux in a subsequent case last year involving Anxiang Du. However Mr Justice Wilkie had felt able to make a whole life order in the case of Jamie Reynolds, deciding that he was bound by earlier rulings of the English courts which had upheld the whole-life tariff.
What might the Court of Appeal decide?
The Court will certainly reiterate that the UK only needs to ‘take into account’ Strasbourg rulings, unless it is impossible to interpret then in a way which is compatible with the Human Rights Act. Given current judicial murmurings around the ECtHR, and a noted judicial reluctance to uphold the ECtHR rulings on prisoner voting, I personally doubt they will make any declaration of incompatibility.
They may decide to duck the issue, by simply upholding the lengthy sentences imposed on the basis that a whole life tariff was not required in these particular cases. However I suspect that is also unlikely, not least because they will be aware that this is an issue that is not going to go away and that the Supreme Court and ECHR awaits.
They might read down in the statute and section 30, a requirement for a prisoner’s detention to be reviewed on a regular basis to see whether there were grounds for compassionate release on licence. However my guess, is that they will follow a Court of Appeal decision back in November 2012 concerning a number of applicants including David Oakes.
In that case the Court of Appeal highlighted that the whole life minimum term was incorporated in express legislative terms in the 2003 Act and as such reflected the settled will of Parliament. Whilst simultaneously removing the possibility of imposing a whole life term from the executive and placing it full-square in the hands of the judiciary, whole life terms were a discretionary element of sentencing. Schedule 21 was not prescriptive and no statutory provision required a judge to impose the order if the interests of justice did not require it.In these circumstances the provisions of Schedule 21 of the 2003 Act, and paragraph 4 in particular, which enabled the court to make a whole life order in a case of exceptional seriousness were deemed not to have been incompatible with or to contravene Article 3 of the Convention.
How might the Government comply with the Vintner ruling?
The UK government could, with minimum fuss and without the need for wholesale changes to Section 30, comply with the ruling by reviewing whole-life orders after prisoners have served, say, 25 years (in Vintner the ECHR said that comparative and international law materials before it showed clear support for the institution of a dedicated mechanism guaranteeing a review no later than twenty-five years)and regularly thereafter.
However nothing with this Lord Chancellor is likely to be so straightforward and sensible. Grayling’s default position is always seemingly to distrust Europe, and the Council of Europe in particular, and so he is likely to dig his heels in, hoping the Supreme Court eventually backs him up. I hope they don’t.
There is no penalogical reason for a whole life tariff, it is based on revenge, and revenge is no basis for a legal system. As Laws LJ said in the extradition case of Wellington a whole life tariff follows the death penalty logic, a crime so heinous that it can never be atoned for. However this reduces the supposed inalienable value of a prisoner’s life merely “to his survival: to nothing more than his drawing breath and being kept, no doubt, confined in decent circumstances. That is to pay lip-service to the value of life; not to vouchsafe it.”