Whole Life Tariffs – Hutchinson v UK – victory in Europe?

Whole Life Tariffs – Hutchinson v UK – victory in Europe?

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Introduction

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“.

 

Background

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.

 

Judgment

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.

 

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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

6 COMMENTS

  1. Thanks for your outline of the judgment. For what it’s worth, I think the key part of the judgment is in para 23: “Any decision by the Secretary of State would have to be reasoned by reference to the circumstances of each case and would be subject to judicial review, which would serve to elucidate the meaning of the terms “exceptional circumstances” and “compassionate grounds”, as was the usual process under the common law.” Reading between the lines, I think the Court accepts that the Secretary of State is unlikely to ever decide in favour of a prisoner, and so goes to some lengths to emphasise that when the domestic courts exercise judicial review, as they inevitably will, they can essentially carry out a substantive review of the prisoners’ claim. They’ll do this by elucidating the meaning of “exceptional circumstances”, rather than just merely reviewing the process by which the Sec of State made her decision.

  2. The UK government have it sewn up, sure in the knowledge that the Administrative Court will simply repeat their arguments at judicial review and present them as “the judgement” – in the same way as that court protects the Criminal Cases Review Commission however preposterous its reasoning.

    In the event that it should become mandatory to review all whole-life sentences after a fixed period, the government would not lose any sleep: they would simply provide for a “review” after something like 40 years (whole-life for many), fully intending that the review process would yield no “exceptional circumstances”. It’s the same principle with the Sex Offenders’ Register: Mrs May was forced to put in place a review process for getting off the register, setting a minimum period before review at 15 years. Although it hurt her pride, she knew she could rely on the police and other agencies to “assess” most if not all registrants as too high a risk to the public ever to be released from it – regardless of the nature of their alleged crimes.

    With the UK’s added weapon of bullying and threats to leave the EU (which many are now accepting is likely to involve withdrawal from the Convention as well – thus rendering the ECtHR redundant – this cruel, unforgiving, nasty little regime circumvents moral principles once more.

    Who said schadenfreude was a German word?

    • @tony frost

      I see you seem to be one of our lefty liberal progressive types who think these people are deserving of some sympathy. Let me assure you your views are in the minority fortunately. Some crimes are so horrendous that the perpetrators deserve whole life imprisonment. For once even LES is talking more sense than you……and believe me that takes some doing.

      • Well it appears you’ve let your emotions get the better of you on this occasion, Captain Sensible, causing you to imagine things said that were not said in my post. You could have simply said “I don’t agree” and offered mature argument as to why you think I am wrong. In the event you have said very little of substance.

        My post was a commentary on the way our administrations get round Human Rights in order to harvest votes from an unthinking, vengeful public that gains pleasure from the suffering of others. I made no reference to the political colour of those administrations or to any political affiliations in respect of myself.

        It seems to me that the average Brit isn’t interested in how convictions were obtained; whether sentencing was fair; whether a witness may have lied; or whether the Court of Appeal, the Criminal Cases Review Commission or the Administrative Court upheld the sentence or conviction honestly. All he sees is that the person has been convicted and that is his and society’s excuse to visit the most vindictive revenge imaginable on the alleged perpetrator: “put ‘em up against a wall and shoot’em!”; “lock ‘em up and throw away the key!” – these are the battle cries of a mindless, uncivilised public.

        That attitude is clearly advantageous to vote-harvesting administrations of whatever political colour. It explains, among many other things, the present government’s bullying of the European Court of Human Rights, and its threats eventually to pull out of the Convention .

        I did not express an opinion as to whether there should be whole-life sentences. But it seems fair to me that the prisoner should have the opportunity, within a reasonable time, to persuade an honest tribunal that his circumstances are exceptional. I think the error you have made is a common one, Captain, namely that you would deny justice to someone because you don’t like him. The moral position has to be that everyone – nice or not – has a right to justice: don’t forget that justice, honestly sought, can go either way.

        Unfortunately, when Human Rights have disappeared altogether in this country, “Law Abiding Citizen” will get a rude awakening as deliberate miscarriages of justice meted out by corrupt courts come closer to home.

        Is it a forlorn hope to expect a response that is not an ad hominem attack?

  3. Whatever the ins and outs of the law regarding whole life tarriffs . I am thankful it keeps the man, who committed these monstrous crimes against three wholly innocent people, away from the rest of civilised society.

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