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On 9 July 2013, the Grand Chamber of the European Court of Human Rights ruled that the United Kingdom's failure to provide a mechanism by which prisoners serving whole life sentences could seek a review of the continuing justification of their detention was in breach of Article 3 of the European Convention on Human Rights.
The Court's judgment highlights the gap between the UK position that punishment and retribution can sometimes properly be the sole aim of a sentence, and the emergence of a clear move towards a rehabilitative penological theory in Europe and internationally.
Background - the applicants and the current law
The applicants are all currently serving whole life orders for murder. Mr Bamber and Mr Moore were originally sentenced to life imprisonment, with a whole life tariff imposed by the Secretary of State after considering recommendations from the respective trial judges and the Lord Chief Justice. Following the entry into force of the Criminal Justice Act 2003, pursuant to which Mr Vinter was sentenced to a judicially imposed whole life order, the second and third applicants were entitled to have their tariffs reviewed by the High Court. Both mens' tariffs were transferred to whole life orders. Under both the pre and post 2003 regimes, tariffs and minimum terms were imposed on the basis of the seriousness of the offences committed.
The effect of a whole life order is that the subject can only be released from prison at the discretion of the Secretary of State, as set out in section 30(1) of the Crime (Sentences) Act 1997. This permits the release of a prisoner on licence where the Secretary of State is satisfied that there are exceptional circumstances which justify release on compassionate grounds. According to issued policy, in Prison Service Order 4700, the discretion will only be exercised where a prisoner is terminally ill or significantly incapacitated. A number of other conditions must also be satisfied.
The applicants all sought reviews of their sentences in the domestic courts. Mr Vinter's appeal against sentence was dismissed by the Court of Appeal, which also dismissed Mr Bamber's appeal against the High Court's imposition of a whole life order following the transition to the 2003 legal framework. His application for a certification that the case concerned a point of law of general public importance in order that it could be brought before the House of Lords was rejected. Mr Moore was refused permission to appeal to the Court of Appeal.
The three men made applications to the European Court of Human Rights on the basis that the whole life orders violated their right to be protected from ill treatment pursuant to article 3 of the European Convention on Human Rights (ECHR). The Chamber found that there was no violation of article 3, and the case was thereafter considered by the Grand Chamber.
The Grand Chamber's assessment
The Grand Chamber endorsed the Chamber's finding that grossly disproportionate sentences would violate Article 3, but that this test would rarely be met . It was common ground that the sentences imposed on the applicants did not fall within this category.
It also noted at the outset of its assessment that penal policy is an area where Contracting States must be allowed a margin of appreciation, and that the imposition of a life sentence is not incompatible with the Convention (Kafkaris v Cyprus, application no. 21904/04 cited).
However, the Grand Chamber considered that two aspects of its previous finding that the imposition of an irreducible life sentence may raise an issue under Article 3 required further emphasis . These related to the preliminary question of whether a sentence can be considered to be irreducible, and the linked issue of whether an irreducible sentence is incompatible with the Convention.
The UK relied on domestic case law in support of its contention that some crimes are so serious that an irreducible sentence can be properly imposed for the purposes of punishment, deterrence and retribution.
However, the Grand Chamber found that ‘[t]here are a number of reasons why, for a life sentence to be compatible with Article 3, there must be both a prospect of release and a possibility of review' .
It held that a review was necessary to ensure that there continued to be legitimate penological grounds for depriving an individual of their liberty. Whilst punishment and deterrence would be significant and legitimate aims at the point of imposition of the sentence, the balance between those goals and others such as rehabilitation may shift over time and a review is the only way of monitoring progress in that regard .
The Court also noted that the absence of the possibility of review or release would present a risk that the punishment would increase the longer the prisoner lived, and so could become disproportionate in time.
The Grand Chamber further observed that the absence of any possibility of release would not afford adequate respect for human dignity. It cited case law from Member States, as well as from various European and international instruments in support of its conclusion that ‘there is also now clear support in European and international law for the principle that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved' . In her concurring opinion, Judge Power-Forde described this approach as protecting prisoners' ‘right to hope', an ‘important and constitutive aspect of the human person'.
In addition to considering the compatibility of irreducible sentences, the Grand Chamber also had to address the question of whether the whole life orders imposed on the applicants did actually constitute irreducible sentences. The UK had argued that the sentences did not fall within this category. It submitted that the Secretary of State's discretion to release prisoners serving whole life orders pursuant to section 30(1) of the Crime (Sentences) Act 1993 could be exercised in circumstances beyond those set out in PSO 4700, and would have to be done so in accordance with the Convention and principles of public law decision-making. It contended that this power would provide the necessary opportunity to consider whether imprisonment continues to be justified, and so constituted an adequate review mechanism.
The Grand Chamber stressed that States have an obligation to detain those individuals that present a danger to the public. The fact that this may lead to someone serving a life sentence in full, does not make the sentence irreducible .
However, it shared the concerns raised by the Chamber about the extent to which the Secretary of State's discretion offered a sufficient prospect of review and release. It found that the combined effect of section 30(1), the policy set out in the PSO and the ruling in R v Bieber  1 WLR 223 (that any violation would occur only when detention was no longer justified on grounds of punishment and deterrence) was to create a lack of certainty for prisoners about if and in what circumstances they would be able to seek a review of their sentences.
The Grand Chamber also shared the Chamber's view that the UK's explanation for not maintaining a right to review in the 2003 Act was unconvincing. If, as claimed, the aim had been to judicialise decision-making, the new Act could have provided for reviews to be determined by an independent, judicial body, rather than the Secretary of State.
In the light of these findings, the Grand Chamber held that a sentence which offered no possibility of a review, or prospect of release, would be irreducible and would not satisfy the requirements of Article 3 of the Convention.
Timing of the violation
The UK argued that the Chamber had been correct to find that there could be no violation until the prisoners concerned could demonstrate that there was no longer any legitimate penological interest being served by their continued detention. It argued that the gravity of the applicants' offences was high, and would not reduce over time, so the review mechanism would only provide a ‘tenuous hope', which the UK did not consider was what the Convention required. Instead, the UK submitted that the Convention required Member States to provide a mechanism by which a prisoner can seek vindication in cases where continued detention itself becomes incompatible with the Convention. Accordingly, any violation would only arise at the point where the prisoner could demonstrate that their detention was no longer justified. As none of the applicants in the present case was able to do so, there was no violation.
The applicants' submitted that the violation had occurred at the point when the whole life orders were imposed, as the prospect of no review or release in itself constitutes ill treatment. It could not be foreseen how long it would take for the balance of penological interests to shift.
The Grand Chamber agreed that having to wait an indeterminate time to raise a complaint did not provide sufficient legal certainty. It was a violation of dignity to ask prisoners to work towards rehabilitation if they may not even be entitled to a review of their sentence, and they must be told what is required of them at the outset of their sentence. It concluded, therefore, that the incompatibility would arise at the moment of that the whole life order was imposed . Judge Mahoney, in his concurring opinion, said that the prohibition on irreducible sentences was a ‘preventative requirement', and so came into play at the point of sentencing .
The Grand Chamber found that the applicants' sentences were not reducible, and so not compatible with Article 3. However, it was careful to stress that its judgment did not offer any prospect of imminent release, as there had been no attempt by the applicants to establish that their detention was no longer justified on legitimate penological grounds.
In a partly dissenting opinion, Judge Villiger cast doubt over the majority's finding that the irreducible life sentences violated Article 3 at the point of imposition. In addition to criticising the absence of a full analysis of the standards and requirements of Article 3 in the Court's reasoning, Judge Villiger also considered that the prospective and generalised view of the potential impact of a whole life order on all prisoners subject to the sentence ran counter to the Court's usual approach of considering a potential breach in all the circumstances of an individual case, and did not afford an appropriate margin of appreciation. He also queried if the treatment complained of met the minimum level of severity required to establish a breach of Article 3.
In finding that the absence of a clear mechanism to review a whole life order rendered the sentence irreducible and so incompatible with Article 3 of the Convention from the point at which the sentence was imposed, the majority of the Grand Chamber sought to make the protection offered by Convention effective by allowing it to be used in a preventative way. The Court recognised that human dignity and the aim of rehabilitation could be undermined by a lack of certainty as to the possibility of release.
The Court was careful to stress that its ruling offered no immediate prospect of release; suggested that the UK could remedy the breach by introducing increased certainty into the current provisions applicable to whole life orders; and emphasised that the form and mechanism for review was a matter for the UK and not the Court. Whilst a shift towards the emerging European and international consensus on rehabilitation as a key aim of life sentences is unlikely in UK policy, it remains to be seen whether the Government will decide to make the changes required to provide a review mechanism for the small number of whole life orders in force, or use the outcome of this case as another argument for distancing itself from the European Convention on Human Rights.
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