The question of whole life tariffs has been in the Court of Appeal again today. It has been a long saga – see here for our overview piece on the case today.
So, is this sorted then?
No. Far from it. It’s another step in what may be a long journey …
The full judgment is here and is worth reading.
In brief, the Court of Appeal said that whole life tariffs, as currently in force, are lawful.
The Court sets out a handy analysis of the history of the life sentence (paras 1-8) before turning to the key issues.
The Court asked four questions:
1. Is a whole life tariff compatible with Art 3?
The Court concludes that “there are some crimes that are so heinous that Parliament was entitled to proscribe, compatibly with the Convention, that the requirements of just punishment encompass … a whole life order” (para 15)
This is essentially a political question and is resolved in favour of the 2003 Act. After reciting some further caselaw, the Court concludes (para 18) “no specific passage in the judgment nor the judgment read as a whole in any way seek to impugn the [principle that a Judge can pass a whole life tariff]”.
This is (presumably) implicitly subject to the fact that an irreducible whole life tariff will be a violation of Art 3.
My reading of Vinter is slightly less optimistic than the Courts. Whilst they upheld whole life tariffs, it is not clear to me that they are overly happy with them. For example, in para 122 Vinter it was stated “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”.
2. Does there have to be a review mechanism in place when the sentence is passed?
This is slightly confused, but the Court seem to accept that this is the case (para 22).
3. Does the system of review under s30 make a whole life tariff compatible?
This is s30 Crime (Sentences) 1997. Currently, this provides :
The Secretary of State may at any time release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds
This raises two immediate conditions. Firstly, given that ‘exceptional circumstances’ are needed for a release to be directed under s30 – when are circumstances exceptional? The Court states “the term ‘exceptional circumstances’ is of itself sufficiently clear.” This is almost certainly optimistic – exceptional circumstances is generally a moveable feast. It means what you want it to mean in any particular case. Compassionate grounds are again not entirely clear.
The ECHR thought that this was not sufficiently clear or certain. The Court of Appeal dealt with this swiftly (para 28) and said that they disagreed – the law of England and Wales is clear.
Ultimately the question would appear to be whether the continued detention of any particular prisoner is a violation of his rights under Art 3. Presumably this will be when there is no longer any ‘legitimate penological grounds’ for detention, having regard not just to punishment but also deterrence, public protection and rehabilitation.
4. If whole life tariffs are incompatible with Art 3 what can a sentencing judge do about it?
The Court decides that the legislation is sufficiently clear that even if a whole life tariff is unlawful, a sentencing judge is still obliged to impose one if the circumstances are right (para 23). Given the conclusion of the Court that whole life tariffs are lawful, not much consideration was given to this. I would question whether a Court can ever pass a sentence which it believes is actually unlawful. The only truly mandatory sentence is the life sentence for someone convicted of murder, in every other case there is a ‘safety valve’ for exceptional cases.
What happens now?
The real question is whether the Court’s answer to the third question is right. There will probably be an application by Mr Newell to take the cases to the Supreme Court. This would be very unusual on a sentencing case, but we would imagine that, one way or another, the case will end up back in the ECHR.
Whatever happens, we imagine that the issue will end up back in front of the ECHR one way or another. To the extent that this is a ‘dialogue’, is there anything in paras 29-36 that would cause the ECHR to change its view? On the face of it, it would appear not. The ECHR in Vinter had the benefit of the full analysis in Oakes
We would imagine that the first out of the blocks will be Jeremy Bamber, as he has already served over 25 years in prison. The mechanism suggested is that he applies to the Home Secretary for release under s30. This will be considered in light of all the circumstances and be decided in line with Art 3.
Theresa May does not like the ECHR in general, and Art 3 in particular (unless it’s a case where the public like the beneficiary such as Garry McKinnon), so we would not be surprised that this is refused. There will then be a Judicial Review, and we will see what happens at that stage.
It is not clear whether s30, which deals with the right of release, gives a sufficient right of review. For example someone who is 25 years in to a whole life sentence may not be safe to be released (and it may not be sufficient punishment) but it may be that the appropriate tariff is now considered to be 30 years. An application to the Home Secretary won’t trigger a reduction in the tariff, even if one is required to avoid a breach of Art 3.
Some points that come out of the ruling. Firstly, does this not apply to any life prisoner? Someone who has a tariff of 40 years is able, on this ruling, to apply to the Home Secretary after serving 20 years on the grounds that there are no penological reasons for his continued detention.
Secondly, it must be the case that whilst punishment is appropriate to considering this, it can never ‘trump’ the other factors. It must follow that there are no cases where the circumstances of the offending mean that a whole life tariff is and always will be necessarily a just punishment. To that extent, at least, this may not quite be the victory for the UK that it seems.
Should the Home Secretary be deciding this?
Probably not. This is moving perilously close to setting the tariff which should be done by a Judge, not the Court. If this withstands further challenge then at some point it will have to go off to a High Court Judge to decide.
Does someone have to wait 25 years?
On what the Court of Appeal have said, then yes. This is not entirely free from difficulty.
Generally, a prisoner on a life sentence will have to complete various courses and move through the system. How does this work for someone serving a whole life tariff? We don’t know. The problem is that with someone who is never to be released, they won’t necessarily be doing the courses and other matters needed.
It does not take a great leap of imagination to imagine that someone five, or ten, or whatever, years into a whole life tariff will go to the courts in order to force the prison service to provide the same opportunities to them as to other prisoners.
Bit of a blow for ‘human rights’ and the Europeans eh?
Well, yes and no. The Court of Appeal seem to have shifted their position since Oakes in favour of the ECHR. If (or when) the ECHR say that s30 does not provide a sufficient safeguard, then it will be hard for the Courts to go back to the position that an irreducible life sentence is Art 3 compliant.
But, in relation to the interpretation of s30, it seems that the Europhiles can take a bit of comfort.
In relation to immigration cases, Theresa May is busy passing all manner of policies and executive action telling judges how to deal with Art 8, this is a welcome reminder that that should not succeed. It would be pleasing to any European to see that the Court of Appeal use Art 3 to cut through the ‘Lifer Manual’ with ease and that there is no margin of appreciation to the Executive.
The individual cases
There were two actual people before the Court, let’s not forget about them.
Mr McGloughlin did not resist the application of the Attorney-General. In fact, he sent a letter saying “I believe I deserve the whole life tariff which the AG is seeking and that the family of Graham Buck deserves to know officially that I will never be released”. This is perhaps welcome candour from Mr McGloughlin, but not the best start to opposing it. His lawyer appears to have been told not to oppose the application.
The Court concluded (paras 48-50) that they “must consider the matter afresh” and that “just punishment required a whole life order”. This rendered the 40 year tariff unduly lenient.
I still maintain that a tariff of 40 years to a man of 55 is, in all the circumstances, so akin to a whole life sentence that to say it is ‘unduly lenient’ is absurd.
It may be that the idea of considering the case afresh is a new development. The general view would be to see if the sentence was outside the proper range and then impose the least sentence that could be justified. Here, had Sweeny J decided that he could pass a whole life tariff but a 40 year tariff would be appropriate, would the Court have intervened? Could they? What if there had been David Cameron’s super-tough 100 year sentence imposed instead? Would that be unduly lenient?
The reasons for dismissing the appeal are set out in para 58. The aggravating features are set our and the Court concluded that the Judge was right in making the whole life order. Whilst the reasons could perhaps have been more full, if whole life tariffs are lawful, then the argument that one is not manifestly excessive is a strong one.
So, they we are. As predicted, the principle of whole life tariffs have been upheld. This saga will run and run and will go off to the ECHR again.
This is undoubtedly a modest victory for the Government, but they should be too cautious before celebrating it.
I am willing to bet that before Mr McGloughlin gets to what would have been the end of his tariff, whole life will be a thing of the past. The view across Europe is clear and is set against that form of punishment (there’s not even agreement in the UK, had Mr McGlouglin committed the offence in Scotland he would not have been able to get a whole life tariff).
This has already cost us millions of pounds and, while the litigation is ongoing, will cost us millions more. It is very simple for a review mechanism to be put into legislation. This would not involve a change from any historic ‘British’ justice norms and it can hardly be objectionable for such a mechanism to be in place. A responsible and mature government would have put those changes in place. It’s not too late to happen now.