Whole life imprisonment reconsidered
By Dirk van Zyl Smit
The sentences of those who murder more than one person, or who kill in particularly gruesome circumstances are naturally the stuff of headlines. So it was again on 18 February when a specially constituted bench of the Court of Appeal, headed by the Lord Chief Justice, ruled that there is no legal bar on whole life orders for particularly heinous offences. In such cases, judges can continue to order that offenders deserve to remain in prison for the rest of their lives.
The case arose because in July 2013, the Grand Chamber of the European Court of Human Rights found in Vinter and others v United Kingdom that even offenders on whom whole life orders had been imposed had to have a prospect of release. To deny them this hope meant that the punishment was inhuman and degrading, thus infringing the prohibition of such punishments in Article 3 of the European Convention of Human Rights. It had to be clear to offenders at the time of sentencing that if circumstances changed and there was no further justification for continuing their imprisonment, there was an appropriate procedure in place for reconsidering continued detention. English legislation allowing for the release of prisoners facing whole life sentences only on compassionate grounds was deemed insufficient to give prisoners hope as the Secretary of State for Justice had stated in the ‘lifers’ manual’ that he would only consider the release on compassionate grounds of prisoners who were terminally ill or seriously incapacitated. In the view of the European Court, allowing someone out of prison only when they are at death’s door was not ‘release’ in the full sense of the term. This judgment left some English courts uncertain about whether they should impose whole life sentences, particularly as the UK government declared that it was reluctant to change the law or policy in terms of which it should be applied.
The Court of Appeal’s finding was presented by a large section of the press as a ruling that prisoners subject to life orders could be denied all prospect of release. Even the BBC led with ‘Court of Appeal upholds whole-life principle’.
The reality is far more complex. The European Court of Human Rights never held that courts could not sentence someone to whole life imprisonment. The confirmation that judges could continue to impose this sentence was therefore unsurprising. What the European Court had established was the principle that, even where such sentences were imposed, there still had to be a prospect of release for the offender who could demonstrate that his continued detention was no longer justified, because, for example he no longer posed a risk to society.
Close reading of the judgment shows that the Court of Appeal accepted this principle. It disagreed with the European Court only on whether the powers of the Secretary of State for Justice were so limited that he might not be able to release someone when required to do so. According to the Court of Appeal, the European Court had been misled by the lifers’ manual, which wrongly purported to limit the release powers of the Secretary of State. The Court of Appeal explained that as a matter of law, the Secretary of State was required to exercise his powers in conformity with the European Convention on Human Rights and the common law. This meant that in every case where a prisoner claims that there are exceptional circumstances that justify his release from a whole life sentence, the Secretary for State will have to consider the claim and give a reasoned decision for allowing or rejecting it.
This outcome is rich in irony. Chris Grayling, the Secretary of State for Justice, has been scathingly critical of the European Court of Human Rights’ decision in the Vinter case, and saw the decision of the Court of Appeal as restoring whole life sentences. He will now be responsible in his official capacity for the procedure which is designed to ensure prisoners subject to whole life orders retain a prospect of release, something which he resisted by declining to amend the lifers’ manual. Nor will the Secretary of State be able to allow his antipathy to the release of such prisoners to influence his decisions, which, the Court of Appeal emphasised, will be subject to the rigours of judicial review as required by the common law.
Together with Pete Weatherby QC and Simon Creighton, I argued in a recent article in the Human Rights Law Review that the consequences of the European Court’s judgment in the Vinter case are far-reaching. In order to ensure that prisoners serving whole life sentences have a hope of release, prison regimes will have to provide them with opportunities to prepare themselves to lead a crime free life; they must have an opportunity to rehabilitate.
Moreover, these release procedures must meet the requirements of due process. We recommend that the Secretary of State refer the release applications of prisoners serving whole life sentences to the Parole Board. Although current law, as interpreted by the Court of Appeal, would allow him to take the final decision in such cases, we propose that he should give the Parole Board the power to decide for it is fundamentally wrong for a politician to have the final say over whether someone should be released.
Finally, we suggest that the Secretary of State announces as a matter of urgency when whole life sentences will be reconsidered routinely. We suggest that this should happen after no more than 25 years have been served and at regular intervals thereafter.
In the end, what matters is that even the worst and most reviled offenders are treated fairly. Justice requires that regard be had for their rights too. It should not have required Europe to spell out that it was necessary to do so. The Court of Appeal has now gently reminded the Secretary of State of his common law duties in this regard too. One can only hope that misplaced opposition to European intervention does not lead to a failure to act.
Dirk van Zyl Smit is Professor of Comparative and International Penal Law at the University of Nottingham. He is the author of “Whole Life Sentences and the Tide of European Human Rights Jurisprudence: What Is to Be Done?” (available to read for free for a limited time) in the Human Rights Law Review. His most recent OUP book is Principles of European Prison Law and Policy: Penology and Human Rights (written with Sonja Snacken). He is currently leading a research project on Life imprisonment worldwide.
Human Rights Law Review promotes awareness, knowledge, and discussion on matters of human rights law and policy. The Review publishes critical articles that consider human rights in their various contexts, from global to national levels, book reviews, and a section dedicated to analysis of recent jurisprudence and practice of the UN and regional human rights systems.
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