Whole Life Tariffs – the saga continues

Whole Life Tariffs – the saga continues

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Introduction

The Judicial Office twitter account is to be applauded for the way that they keep the public (including us) uptodate as best they can.

As a result of that, we found out on 9th January 2014 what the latest steps in the ‘whole life tariff saga’ will be:

What’s the issue here?

This relates to the question of whether it is lawful for a Court to impose a ‘whole life tariff’ – an order against a defendant who is convicted of murder that they are never released.

The power to do this comes from Schedule 21 Criminal Justice Act 2003 that sets out how a Crown Court Judge should approach sentencing somebody for murder.

Whilst it is clear that there is power under the domestic law (ie, the law as set down by Parliament as it relates to England and Wales), the issue that the Court of Appeal will have to address later this month is whether Sch 21 is compatible with Art 3 European Convention.

The ECHR has ruled that a whole life tariff with no possibility of a review is contrary to Art 3.

So, faced with that, what is a Court to do? Some Judges have passed whole life tariffs since that is still permitted under English law. Others have concluded that the ECHR ruling means that they should not make a whole life tariff.

The Court of Appeal will have to decide (1) whether whole life tariffs are incompatible with Art 3 and, if so, (2) what can be done about it (make a declaration of incompatibility, read down the statute, or some other resolution). It may be that the issue is ducked on the basis that none of the people who are appealing need to have a whole life tariff, but this is unlikely.

Whatever happens on the 24th January, that won’t be the end of the matter. The case may go to the Supreme Court (unusual for a sentencing appeal) but will certainly go to the ECHR. This one will run and run.

Why is the Court of Appeal having five judges to hear this?

This is an indication that the Court think that this is a ‘big’ judgment. The panel of Judges is very high-powered, which just reinforces this (there is an issue as to ‘precedent’ – given that the previous case had five Judges, it would take a 5 person court to overrule that, but I don’t think that that is the real issue).

It also means (in practice) that the Court of Appeal are gearing up for a fight with the ECHR. It’s not called a fight of course, in polite terms it’s a ‘dialogue’. The idea is that the Court of Appeal ‘feeds into’ the ECHR (being a trans-national Court) and the composition of the Court makes it clear that the judgment is carefully thought out to ‘assist’ the ECHR with ‘understanding’ UK law.

In fact, the Court of Appeal did this in November 2012 with the same issue of whole life tariffs (interestingly, two of the Judges who decided that case will be deciding this one). They concluded that whole life tariffs were lawful. The ECHR noted this in their judgment in Vinter, but came to the view that this was wrong.

What then is the point of another five person court? I suppose that it is possible that the ECHR will change their mind. The judgment in Vinter was pretty clear and comprehensive however. Is there more that can be said, or anything that the ECHR did not understand about the way the English and Welsh legal system works? Again, it is hard to think of anything.

It is always possible that the ECHR will change their mind due to the merits of further legal argument, but I think that that is unlikely. It may be (like with hearsay) that the ECHR sees the political danger and tempers their ruling somewhat.

Links

This issue has arisen on plenty of occasions before. We’ve set out here the various pieces that we have done either on the principle or on the individual people that will be in the Court of Appeal:

General Material

Ian McGloughlin

Mark Bridger

Note – Mr Bridger announced that he was abandoning his application for permission to appeal

Lee Newall

Prediction

This is an intensely political issue. The political make up of the Judges in the Court of Appeal is mixed, but I would be very surprised (amazed in fact) if the Court of Appeal did anything other than uphold whole life tariffs.

It’s always dangerous to predict, but it would be wrong of me not to have a bash. My guess is that at least one of the people will leave the Court without a whole life tariff (Mr McGloughlin is the easiest legally as it’s an AG Ref, but Mr Newell is perhaps safest politically).

After that, I think that whilst the Supreme Court would not want to deal with this, they will take it up and (not unanimously) dismiss it. It will go back to the ECHR eventually. Where the ECHR will hold that whole life tariffs are unlawful and the process will start all over again… All the while the Government will do nothing.

Comment

(Disclaimer – this is my own personal view) – My own view is that Vinter is correct and whole life tariffs are unlawful (the links above set out the reasons why).

But, whether that is right or wrong, the wider question is our relationship with the ECHR. To me, it is clear – we have signed up to this and we are bound by it, so rather than complaining, just get on and comply with the Court’s ruling.

There has been much in the press about this, but it is manufactured outrage. All that is required to ensure compliance is to have a provision that after someone serving a whole life tariff has served 25 years there should be a review (which would be best done by a Judge) where the Judge checks to see that a whole life tariff is appropriate.

We are not talking great issues of long-standing principle here. Whole life tariffs without review have only been an option since December 2004. It is not clear whether Parliament even thought about the (then existing) review position when they passed the behemoth that is the Criminal Justice Act 2003.

The impact of allowing a review would be so minimal as to have passed unnoticed had the Government not been determined to make Europe an issue. A sensible and mature government could have dealt with this with a minimum of cost and fuss. It is a pity that this one did not.

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

9 COMMENTS

  1. If this does go to the Supreme Court (and I agree this seems almost inevitable), it is devoutly to be hoped that Lord Sumption will recuse himself, as it seems inconceivable that the woman or man on the Clapham omnibus could possibly see him as unbiased in light of his recent pronouncements on the ECtHR and its doings.

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