The European Court of Human Rights (ECHR) is the centre of attention again at the moment, and no doubt will have increased the fervour with which it is attacked by the political Right in the UK by its decision last week in the case of Jeremy Bamber and others. Bamber was convicted of murdering 5 members of his family in 1985. He was sentenced to life with no prospect of ever being released. He has always maintained his innocence claiming his schizophrenic sister shot and killed the other family members before turning the gun on herself. His recent case challenged the lawfulness of his ‘whole life’ sentence.
Individuals convicted of murder are sentenced to life imprisonment. This is mandatory, and arises from the compromise reached when Parliament abolished the death penalty in the 1960s. Life sentences can also be handed down for some other crimes at the discretion of the trial judge. The list of crimes for which a life sentence is available is limited and is determined by politicians through legislation and guidance.
Contrary to what is often reported in the British tabloid press, a life sentence lasts for the life of the criminal upon whom it is imposed (whether that is for murder or for other serious offences). However, that does not mean that everyone who is sentenced to life imprisonment will never be released. The concept of justice includes within it the possibility that people can change, and that applies as much to those convicted of serious crimes as it does to less dangerous individuals
In order to incorporate the above philosophical truism into sentencing practice, as well as to facilitate differentiation between the severity of the crimes committed by such individuals, each life sentence has attached to it a ‘minimum term’ or ‘tariff’, a period of time that has to be served behind bars before any consideration can be given to release. Historically, the Home Secretary had the power to determine the length of such a term, but this power was removed following previous court cases that eventually went to the ECHR. Broadly, the rationale behind these decisions was that imposing sentence is a judicial task and should not be left in the hands of politicians, who may have other motivations, such as public popularity, when considering the imposition of a tariff.
At this point it must be emphasised that for a prisoner sentenced to life the only significant effect of a ‘minimum term’ is to identify the earliest possible date for an ‘early release’. Whilst there is a set of guidelines that the Parole Board will follow in considering such applications that might, indeed, lead to the prisoner concerned re-joining the community outside the prison walls, it remains a discretionary process; release is not automatic. Furthermore, the life sentence remains in place; it is not commuted to community service! This means that once released a ‘lifer’ is always under the threat of being returned to prison in order to serve out the rest of the original sentence. ‘Life’ does indeed mean ‘life’.
Indeed, in some cases it has been considered appropriate for individuals to never be released, that they should die behind bars. The ability to impose a ‘whole life’ minimum term now rests with the trial judge, who must consider, but not necessarily strictly adhere to, guidelines set down by parliament. They can only be ‘guidelines’, in respect of which the judge is entitled to exercise discretion, because it is now accepted jurisprudence that sentencing individuals cannot be allowed to again become the province of the political opportunist. Whole life orders, as they are known, are reserved, generally but not exclusively, for multiple murderers and those who exhibited a degree of pre-planning in relation to the crimes committed. The result of such an order being made is permanent incarceration.
The decision of the Grand Chamber of the ECHR issued last week relates to the lawfulness of ‘whole life orders’. The legal problem is that apart from very limited circumstances, such orders do not allow for any review whatsoever of the original sentence. They do not allow the contemplation of that optimistic philosophical position that anyone can change and become a better, safer person who might be a more productive contributor to society if released as opposed to kept in prison.
As such, whole life orders have been challenged as being incompatible with Article 3 of the European Convention on Human Rights, which contains an unqualified ban on inhuman and degrading treatment. Inhuman, the argument goes, precisely because they are indeterminate, irreducible and do not allow for that very human capacity for change. It has been stated previously by the ECHR, and accepted by the UK government in this current case, that a criminal sentence has to carry with it the possibility of it being reviewed and reduced in order for it to be compliant with Article 3 of the convention.
The government’s position before the ECHR was that the residual but limited power retained by the Home Secretary to release any prisoner, including a ‘lifer’, in certain circumstances was sufficient to counter the irreducibility argument. Unfortunately, this power is so limited by a policy document issued by the government that it only allows for the release of prisoners subject to a whole life order if very specific criteria are met. A quote from the ECHR illustrates the problem. (In what follows, section 30 is that section in the Crime (Sentences) Act 1997 that allows the Home Secretary to grant early release and the Prison Service Order contains the guidelines as to how that power will be exercised.)
“126. However, the Court must be concerned with the law as it presently stands on the published policies as well as in judicial dicta and as it is applied in practice to whole life prisoners. The fact remains that, despite the Court of Appeal’s judgment in Bieber, the Secretary of State has not altered the terms of his explicitly stated and restrictive policy on when he will exercise his section 30 power. Notwithstanding the reading given to section 30 by the Court of Appeal, the Prison Service Order remains in force and provides that release will only be ordered in certain exhaustively listed, and not merely illustrative, 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).
127. These are highly restrictive conditions. Even assuming that they could be met by a prisoner serving a whole life order, the Court considers that the Chamber was correct to doubt whether compassionate release for the terminally ill or physically incapacitated could really be considered release at all, if all it meant was that a prisoner died at home or in a hospice rather behind prison walls. Indeed, in the Court’s view, compassionate release of this kind was not what was meant by a “prospect of release” in Kafkaris, cited above. As such, the terms of the Order in themselves would be inconsistent with Kafkaris and would not therefore be sufficient for the purposes of Article 3.
Essentially, because the circumstances when a prisoner under a whole life order can be released using these provisions are limited, extremely restrictive and do not allow for any reasonable level of discretion, the ECHR does not consider that this amounts to ‘early release’ at all. Following such analysis, it was inevitable that the ECHR would find against the UK in this case.
I made a prediction that what would follow this decision was likely to include a significant amount of uneducated ranting by politicians and tabloid editors all foaming at the mouth and fighting with each other in order to be seen as the most ‘hard line’, including comments about Europe interfering with ‘our’ judicial system and placing the public at risk as a result of the prospect of the early release of dangerous felons! After the Abu Qatada case we have heard the likes of David Cameron, Theresa May and Chris Grayling pontificating and, in the process, denigrating the role of the ECHR. Most, if not all of the commentary you will have read over recent days was nothing more than right-wing, scaremongering propaganda. You should ignore it and consider the following.
Whilst the crimes committed are heinous, repugnant and have a long-lasting effect on victims and their families and friends, it is inhumane to consign someone to permanent incarceration without the prospect of at some point in the future being considered such a changed person that they could be considered for release. This had already been determined as a breach of Article 3 and was a position accepted and endorsed by the government in this case.
In finding against the UK, the ECHR has done no more than say it is wrong to have a policy that prevents any sentence being reviewed and possibly reduced. It most certainly is not saying anything about ‘lifers’ generally or the specific applicants in this case. It is, always has been and will remain entirely lawful to impose a ‘whole life’ tariff and for any person so sentenced to never see the light of day again. This decision will not, despite what may have been written in its aftermath, lead to a flurry of releases into the community of our most dangerous prisoners. The only effect is that all prisoners, even those the courts initially consider as suitable for whole life orders, will have the right to that sentence being reviewed.
Previously, when the Home Secretary was the person responsible for setting minimum terms of imprisonment following the passing of a life sentence by the court, there was an automatic review after 25 years in relation to those cases where a whole life tariff had been imposed. That provision was not included in the legislation that was passed in 2003 to transfer the whole sentencing process away from politicians to judges and it seems to me that the appropriate response to the ECHR decision is to restore that reviewing process.
‘Life’ does mean ‘life’. It always has. It always will. All that a justice system is required to do is to provide for a fair appraisal of the capacity of a person, any person, to change. It is about preserving what is best about being human, the ability to reflect and, in appropriate circumstances be compassionate. Sometimes, politicians and others with personally motivated agendas need reminding of this, which is why, in the current political climate, the European Court of Human Rights is needed now as much as when it was first constituted.
© The Dolphin’s Brain 2013