Back in February we had a look at the case of McLoughlin as the Court of Appeal turned to the question of whether whole life tariffs are lawful and it was concluded that they were. In it, we opined that it was not the end of the argument, but just (yet) another step along the way.
Well, on 20th May 2014 the ECHR had another look at the issue in the case of Laszlo Magyar v Hungary  ECHR 491.
Mr Magyar was convicted of three murders committed during the course of numerous burglaries of elderly people – the sort of case that might well attract a whole life tariff her. For this he received a life sentence where eligibility for parole was excluded.
The only possibility for release was by a Presidential Pardon. The Court re-iterated their conclusions in Vinter v UK saying (para 50) –
“in determining whether a life sentence in a given case can be regarded as irreducible, the Court has sought, for the reasons outlined in Vinter (cited above, §§ 110-118), to ascertain whether a life prisoner can be said to have any prospect of release. Where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3 (see Kafkaris, cited above, § 98). Article 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds (see Vinter, cited above, § 119).”
Further (para 53) in terms of when the breach arises “A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration“.
The Court held that as the Presidential Pardon did not require consideration of whether the “continued imprisonment is justified on legitimate penological grounds. Although the authorities have a general duty to collect information about the prisoner and enclose it with the pardon request (see section 597(5) of the Code of Criminal Procedure, cited in paragraph 21 above), the law does not provide for any specific guidance as to what kind of criteria or conditions are to be taken into account in the gathering and organisation of such personal particulars and in the assessment of the request“.
Because the law did not “allow any prisoner to know what he or she must do to be considered for release and under what conditions.” there was a breach of Art 3.
The Court confirms what they said in Vinter. There is no consideration (unsurprisingly) of McGloughlin. The difficulties thrown up by the ECHR was resolved in a carefully worded compromise by the Court of Appeal relying on s30 Crime (Sentences) Act 1997.
We know that Mr Newell applied for permission to appeal to the Supreme Court, this being refused in April. It is anticipated that he will shortly be putting an application in to the ECHR.
What will Strasbourg make of it? Whilst of course s30 is different to a Presidential Pardon, we would suggest that the fundamental problem with s30 is (as stated previously) it does not give sufficient clarity or certainty. To say that this provides a sufficient safeguard because somebody can be released if the continued detention is a breach of Art 3 is to beg the question.
What does a prisoner, sentenced today to a whole life tariff, have to do to get considered for release in due course? The answer is ‘we don’t know‘. For this reason, it seems pretty clear to me that the UK’s system of sentencing with respect to whole life tariffs is contrary to Art 3.
The Lifer Manual has not been rewritten and, contrary to what the Court of Appeal think (para 31), it is highly doubtful that ‘exceptional circumstances’ is sufficiently clear. It may be that there could be sufficient clarity so as to make it compatible, but I imagine that even if this happens there will still be problems ahead that it is a decision of the Executive not an independent Judiciary.
What happens now? Further Comment
If (or when) the Courts in England and Wales come to reconsider this, I imagine that they will try to uphold the current position based on the difference (that undoubtedly exist) between s30 and a Presidential Pardon. It may be that greater clarity will be given to the Life Manual.
Will this work? I suspect that the answer will be, in the long run, no – the answer to the Court of Appeal’s conclusion in McLoughlin will be ‘close but no cigar’. They have staved off the ECHR, but this is a temporary reprieve rather than a permanent victory for the UK.
Of course, the UK could save us all a lot of money and time by allowing for a judicial review after 25 years or anyone with a longer tariff. The refusal to do this smacks of childishness on the part of the Government.