The newspapers gave extensive coverage to the ECHR’s decision in the case of Vinter v UK (see the Daily Mail for one few and the Guardian for a more measured response). We meant to look at this earlier, but life got in the way.
What did the Court decide?
The news reports were confused as to what had happened. The first point to note is that the European Court of Human Rights has less power than the Courts in the UK. They are not able to quash a conviction or allow an appeal against sentence, they can only look at whether a Convention right has been breached. If they find that that has happened, then the individual will have to go back to the UK Court to seek redress there (the ECHR does have a power to order compensation, although they did not in this case).
So, the argument for the ECHR was whether a ‘whole life’ tariff (it was often referred to as an ‘irreducible life sentence’) was a breach of Art 3 of the Convention (the prohibition against “torture or to inhuman or degrading treatment or punishment”).
The Court looked at the practice across Europe as well as various International instruments and concluded that the overwhelming practice was not to impose sentences where there is no chance of release (paras 59-81). The UK accepted (para 83) that any sentence that was ‘grossly disproportionate’ would be ill-treatment that was incompatible with Art 3 and therefore unlawful.
The Court concluded that a ‘whole life’ tariff, where there was no effective review mechanism, fell into that category (paras 119-122) and was therefore unlawful.
Although that seems the case with a UK ‘whole life sentence’ (actually not the UK, as Scottish law does not allow for whole life tariffs), the Government argued that s30 Crime (Sentences) Act 1997 meant that even a whole life sentence did not have to mean that an individual spent the remainder of their life in the prison because it allows the Secretary of of State to, “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.”
Whilst the English Court of Appeal bought that argument, the ECHR did not, pointing to the fact that the police that was in place states that “release will only be ordered in certain exhaustively listed … circumstances, namely if a prisoner is terminally ill or physically incapacitated and other additional criteria can be met (namely that the risk of re-offending is minimal, further imprisonment would reduce the prisoner’s life expectancy, there are adequate arrangements for the prisoner’s care and treatment outside prison, and early release will bring some significant benefit to the prisoner or his or her family”.
This was considered to be too restrictive. For that reason, a sentence of life imprisonment with a whole life tariff is a breach of Art 3 and therefore unlawful.
The ECHR noted that since whole life tariffs were introduced in England and Wales in 1983, it was always the case that the sentence would be reviewed after the prisoner had served 25 years to see if the whole life tariff was still justified, bearing in mind all the circumstances of the individual case. This was removed by the Criminal Justice Act 2003 for political reasons.
The ECHR stated that there must be a review mechanism and, whilst they did not proscribe the time frame (or the mechanism) for this, “the Court would also observe that the comparative and international law materials before it show clear support for the institution of a dedicated mechanism guaranteeing a review no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter”.
It seems clear that if the UK were to respond with a review longer than 25 years then they will be back in Court again and will, eventually, lose that fight.
What happens now?
This emphatically does not mean that any of those prisoners will be released. The UK has an obligation to do something to ensure that our law is compatible with Art 3.
There are various options. The ‘lightest touch’ would be to issue revised policy guidance under s30 Crime (Sentences) Act 1997 that allows an application to (presumably) the Home Secretary for a review of the sentence. This would be undertaken and, if the whole life tariff remains, then can be Judicially Reviewed. An option on the other end of the spectrum would be to repeal s4(1) Sch 21 Criminal Justice Act 2003 that permits a whole life tariff to be imposed. That may well be the cleanest and most sensible option (not least that it will save money in future litigation) but is likely to be politically unacceptable, especially given the initial responses from the Government.
Whatever happens, it is important to stress the practical impact of this judgment – almost none. There are about 50 people serving whole life tariffs and the result of any review for them is likely to be that a whole life tariff is still appropriate. Even where it is concluded that a whole life tariff is no longer necessary, it means that a fixed term tariff will be set, which is longer than 25 years. In any event, however long the tariff will be, this is still a minimum term and someone cannot be released until the Parole Board says it is safe to release them.
So, the conclusion is – don’t believe the hype. This will make almost no difference to anyone.
Does this apply to people serving a fixed term tariff over 25 years?
To my mind, the answer is no. The judgment only applies to whole life tariffs and not to people who are serving determinate tariffs longer than 25 years. From this, it could be noted that the ECHR may well be (at this stage at least) relatively sanguine over tariffs of 30 or 40 years.
This does give another possibility – that Parliament could set a maximum tariff of say 50 years which would (or at least they would argue would) comply with the letter of the ruling whilst being an effective whole life sentence. This was the route taken by Terry Branstad (the Governor of Iowa) who reacted to the US Supreme Court ruling in Miller v Alabama that outlawed mandatory life without parole for juveniles in America. He commuted all the life sentences to 60 years (without parole), a fine example of how to undermine a Court judgment.
The reaction to the judgment in the UK provides a good example of how politicians and commentators (either through ignorance or malice) twist the truth to plug their own world view. By way of an example, one MP, Martin Vickers, was apparently taking to the airways stating that this may mean that Ian Huntley will be released early. This is completely wrong, partly because the judgment does not say anything of the sort about anyone being released, but also because Mr Huntley is not serving a whole life tariff.
In the piece last year I suggested that whole life tariffs were in breach of Art 3 and would be ruled so, so this is not a surprise to me. While the judgement has been very controversial, it seems to me to be plainly correct.
As to where the government will go, I think that it is likely that they will go down the policy route to retain as much control over the process as possible. This will tide them over for a while, but I would stake a lot of money on the fact that that will end up back in the ECHR who will eventually require a more transparent and judicial process.