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When can life mean life?


Written by  Fraser Simpson, recent graduate of Glasgow University Law School and now an LLM student at Lund University studying International Human Rights Law

In the latest ruling to exasperate Westminster figures, the European Court of Human Rights (ECtHR) in Vinter and Others v The United Kingdom, considered whether whole life tariffs were in contravention of the European Convention on Human Rights (ECHR). These whole life tariffs state that an individual shall be incarcerated for the rest of their life. They have no hope of release unless the Secretary of State chooses to exercise its discretionary power to release on compassionate grounds. The tariffs are clearly a great restriction on the liberty of an individual but they are generally rarely used. Currently, within England and Wales, only 49 prisoners are serving such sentences. Three of these prisoners argued that the tariffs amounted to treatment that was incompatible with Article 3 of the ECHR and that a whole life tariff, which affords no real possibility of release, should be considered “inhuman or degrading treatment”.

The Grand Chamber, the highest chamber of the supranational Court, published its decision on 9th July 2013 and upheld these arguments by a crushing majority of 16 to 1. Although there appeared to be little doubt as to the illegality of the tariffs according to the Strasbourg Court, the situation was the complete opposite back in London.

On the same day that the judgment was announced, disdain for the decision was expressed by many Westminster figures. Chris Grayling, Justice Secretary, described the situation as “a terrible day for British justice” and called for a review of our relationship with the European Convention of Human Rights. And with the Prime Minister stating that he was “very, very, very, very disappointed”, it was clear, and emphatically so after the use of repeated adverbs, that the decision did not have the backing of many Conservative politicians. Even the former Labour Home Secretary, David Blunkett, who was part of the Government that implemented these particular tariffs back in 2003, also disagreed with the decision. He added that the law was originally changed so that “life really meant life”.

The Strasbourg Court held that Article 3 requires any sentence imposed to be “reducible”. This element of “reducibility” results in States having to provide some method of review in order to assess whether the continued imprisonment of the individual is suitable or not. However, this does not require the individual to actually be released. The Court and the applicant’s representatives were quick to reinforce that the decision did not result in the individuals being released, nor the need for any review to result in the release of prisoners currently serving a whole life tariff. The decision simply requires a review to take place. Therefore, some may ask why so many in Westminster were angered? The possibility of an individual being imprisoned for life has not been removed; they just need to review this tariff at set intervals.

However, even as a generally liberal individual, I can’t help but empathise with those that are left with a feeling of disappointment in Westminster. Not because I share their same feelings about re-evaluating our relationship with the ECtHR, but because the reasoning of the Court was not convincing to me. Not only was the reasoning not wholly convincing but (and I almost feel some form of embarrassment in saying this) I can see the benefits of whole life tariffs.

In order to ascertain whether various actions violate Article 3, a personalised assessment of the situation is required. The Court will generally have regard to specific characteristics of the individual, including their age, sex, mental state etc. in order to assess whether a violation has occurred. However, in this decision, the Court says that all prison sentences with no form of review equate to Article 3 treatment. There is no consideration of any specific characteristic. Irrespective of the crime committed by the individual, the mental state of the individual or any other relevant factor, being imprisoned for life without review is incompatible with Article 3.  The reasoning of the Court appears to be out of line with the ways in which previous cases have been considered under similar provisions.

Thus, this leads to the idea that imprisoning an individual and removing the hope of any release (other than on compassionate grounds at the discretion of the Secretary of State) is always going to be in violation of Article 3. As the Court and lawyers emphasised, there is no need to reduce the sentence of the individual, but just a requirement to review the sentence. So should it be fair to consider the removing of the hope of release a flagrant and automatic violation of Article 3?

In my opinion, the removal of any hope of release could be considered an aspect of punishment that is reasonable and suitable in such extraordinary cases where whole life tariffs currently apply. Is this harsh? Yes, undoubtedly, but with serious crimes come serious punishments. The Court failed to convince me at any point that removing this hope always results in a violation of Article 3. The domestic judge only considers such tariffs if the crimes committed are particularly horrific, generally including multiple murders (as was the case with the three applicants in the case). When passing down such a harsh sentence, the domestic courts do not do so lightly. Many considerations are taken into account by the domestic judge in deciding whether such a tariff is appropriate or not. I wouldn’t hesitate in saying that the domestic courts consider the situation more fully that the Strasbourg Court! To me, this full consideration of circumstances eradicates any form of disproportionality.

Irrespective of my lowly views, the United Kingdom Government have six months to decide how best to comply with the ECtHR decision. The Court suggested that reviews should take place at least every 25 years, but the form of this review was to be set by domestic authorities. However, I wonder whether a further compromise could be found. Instead of allowing set reviews at the end of a certain time period, I feel developing the discretionary power of the Secretary of State would be a better way in order to protect the true essence of Article 3. The Secretary of State can release a prisoner on compassionate grounds and I would suggest that this should be extended to include the power to release if the prisoner establishes that continued detention would be in violation of Article 3. This not only allows certain individuals to be denied the hope of release, but also upholds the protection afforded by Article 3. This stems from my belief that removal of hope of release isn’t automatically a violation of the protections within the ECHR. I admit practical difficulties with this solution, including the probability that all prisoners would continue to appeal on the basis that their detention was incompatible with Article 3. But at least with such a solution the United Kingdom domestic authorities would have first opportunity to consider the compatibility of Article 3 with the situation; which would further satisfy the need for domestic bodies to be the principal protectors of human rights.

Therefore, in conclusion, life should mean life in the majority of cases. There are no set reviews on this sentence, but if the individual prisoner is able to show a parole board that their treatment is incompatible with Article 3, then they may be released. This solution, I feel, establishes the best balance between the need for serious punishment and the need to uphold the protection contained in Article 3. Until someone is convincing in establishing that the removal of hope of release will always equate to treatment that falls foul of Article 3, I shall, for once, side with Westminster.

(The full case is available here)


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