There was (no) outrage in the tabloids at the latest highly political judgment from the ECHR that was released on 3rd February 2015. This is because in the stand off between the UK and Strasbourg, Strasbourg has blinked first (the full judgment is available here).
The case involved Arthur Hutchinson. If whole life tariffs are lawful, then it is harder to think of a better candidate – “In October 1983, the applicant broke into a family home, stabbed to death a man, his wife and their adult son and repeatedly raped their 18 year-old daughter, having first dragged her past her father’s body. He was arrested several weeks later and charged with the offences“.
Mr Hutchinson was convicted of the offences by a jury and sentenced to life imprisonment. The Judge suggested a tariff (the procedure was different then) of 18 years, which was upped to a whole life tariff by the then Lord Chief Justice, which was upheld by the Home Secretary.
When the Criminal Justice Act 2003 came into force, the whole life tariff was upheld. So, eventually, off to Europe Mr Hutchinson went.
The ECHR set out the issues, and the fact that the English Court of Appeal had responded to the judgment in Vinter by issuing a 5 Judge decision in McLoughlin where they decided not to follow the ECHR.
They reiterated the point that a whole life tariff without a form of review is incompatible with Art 3, but set out the issue for their consideration “whether the Secretary of State’s discretion to release a whole life prisoner under section 30 of the 2003 Act … is sufficient to make the whole life sentence imposed on the applicant legally and effectively reducible” (para 22). If you want more information on this, then the links above contain a bit more analysis.
Then the Court said this (at para 25) “In the circumstances of this case where, following the Grand Chamber’s judgment in which it expressed doubts about the clarity of domestic law, the national court has specifically addressed those doubts and set out an unequivocal statement of the legal position, the Court must accept the national court’s interpretation of domestic law (see, mutatis mutandis, Cooper v. the United Kingdom [GC], no. 48843/99, § 125, ECHR 2003-XII). Further, as the Grand Chamber observed in Vinter and Others, the power to release under section 30 of the 2003 Act, exercised in the manner delineated in the Court of Appeal’s judgments in Bieber and Oakes, and now R. v. Newell; R v. McLoughlin, is sufficient to comply with the requirements of Article 3 (and compare, also, the review mechanisms accepted by the Court to be Article 3-compliant in Kafkaris, cited above, §§ 100-105 [and] Harakchiev and Tolumov, cited above, §§ 257-261“.
It seems that Court accepted that because there is a power to release a prisoner in exceptional circumstances, and because that would have to be done through the prism of Art 3, this is sufficient to uphold the lawfulness of whole life tariffs.
Is that it then for the argument on whole life tariffs?
This is, to my mind, a surprising result (see what I said on Magyar v Hungary as to why). The ECHR seemed to have a settled view and there was nothing in the judgment in McLoughlin that seemed to me to be remotely persuasive the other way.
One issue is that it is hard to see that s30 is sufficiently clear, given that there is no guidance issued on it. What counts as exceptional circumstances? A real concern here is that it would appear that it is the Secretary of State for Justice who will be making the decision. Whilst he will get advice of course, it is unacceptable for a politician to make this decision.
A further problem is that it also does not tackle the problem that a breach of Art 3 arose at the point of sentence if a prisoner did not know what he needed to do in order to get a reduction in due course.
This will (probably) go to the Grand Chamber, where (and it is obviously dangerous to predict – I got the last call wrong) it would not surprise me if the previous line of ECHR authorities were upheld, and this seen as a slight aberration.
Even if it does not (or it does, and is refused) then the next flashpoint will be when someone applies to have their whole life tariff considered and is refused. Either way, it is unlikely that this is the end of the arguments.
As stated previously, all of this time, energy and money could have been spared if the Government had just reverted to the policies of Margaret Thatcher – hardly the biggest burden for a Eurosceptic Tory, and offered a review.