The Court of Appeal today (21st November) ruled that whole life tariffs were legal in principle – in other words, to subject someone to a life sentence with no minimum term set, so that they will die in prison, is not a breach of the European Convention of Human Rights. Unusually, the Court sat in a panel of 5 Judges. This is only done in exceptional cases where there is a point of principle at stake.
A guide to life sentences (including whole life tariffs) can be found here.
History and facts of the cases
The Courts heard various linked cases. A summary of the offending is here. The murders were brutal, the exact details being perhaps not so important, as the issue is one of principle – is it lawful for the Court to impose a sentence that excludes any possibility of release?
It is important to reiterate that the issue is not whether those individuals should be released, either now at the expiration of their tariff. Very few people subject to a life sentence are released when their tariff expirse, many people are detained far belong the minimum period that they have been ordered to served. In all cases, an individual will not be released until the Parole Board are satisfied that they are safe to be released.
Why did five judges hear this case?
The arguments raised by this case, that a ‘whole life’ tariff is unlawful, has not come out of the blue. There have been various challenges to such tariff over the years, and all have effectively failed. A brief summary starts with Bieber  EWCA Crim 1601 – a whole life tariff will be lawful under Arts 3 and 5, provided that it is a result of a Judge’s decision that the crime is so heinious that the element of punishment required necessitates a whole life tariff.
In that case, the Court of Appeal took heart from the ECHR decision in Kafkaris v Cyprus  ECHR 143 which reached, effectively, the same conclusion.
Earlier this year, the ECHR 4th Section gave judgment in three cases heard together under the name of Vinter v UK  ECHR 61. This involved three British prisoners who were serving whole life tariffs. Here, the Court upheld the whole life tariffs (and there is also a good review of what other countries do in relation to sentencing). This was however by a 4-3 majority. The case will be heard by the ‘Full Court’ of the ECHR in the next week or so.
If the ECHR are going to hear the case on this, why should the English Courts get involved? Officially, it is because this give the ECHR the benefit of hearing what the English Court of Appeal has to say and having a five court panel allows the best input. A similar procedure was done in relation to the hearsay arguments last year (I have written more about that in a personal capacity here). Some might say, however, that the real reason is to make it clear that the UK is of the view that whole life tariffs are appropriate in certain cases, and the ECHR should be careful to overrule that.
The Court issued a summary of their judgment which sets out, in brief, why the appeal was dismissed. In analysing Art 3, the Court noted that the existence of whole life tariffs were due to the “settled will of Parliament” (para 12). Further, looking at the European cases mentioned above, the ECHR permits member states to make a discretionary whole life tariff (para 22).
Putting those two together, the Court of Appeal therefore concluded that the making of a whole life tariff, provided that the conditions of seriousness are met, does not breach Art 3.
What happens next?
The ECHR will no doubt take on board the UK’s comments. The ping-pong over hearsay is an interesting comparison – here, on one view, the ECHR expressed great deference to the UK whilst substantially upholding their previous judgment.
Although this will effect only a small number of people, the ECHR jurisprudence (the court’s way of thinking) seems to be going down a one way liberal street. This has implications for whether the mandatory life sentence (and other mandatory sentences) are lawful.
It is certainly one to watch.
Disclaimer – this is just my personal view. I think that ‘whole life tariffs’ are unlawful and will eventually be ruled so. It is unlawful because it is arbitrary . By way of example, one of the people affected, Jeremy Bamber, was 24 when he was arrested. This could mean that he serve 50, 60 or more years in custody, but whatever the exact length of his life, there is no attempt to define the punishment aspect on the sentence, or assess how long it may be necessary to detain someone. It also allows no hope and no chance of redemption.
The case comes just one week after the Supreme Court seemed relatively willing (and on one few surprisingly so) to read words in to a statute in the case of Waya. Here, one criticism is that the Court of Appeal is too ready to defer to Parliament on this matter, without properly grappling with the questions that arise.
The argument against a whole life tariff has been put best by Laws LJ in the extradition case of Washington, where he said:
“The abolition of the death penalty has been lauded, and justified, in many ways; but it must have been founded at least on the premise that the life of every person, however depraved, has an inalienable value. The destruction of a life may be accepted in some special circumstances, such as self-defence or just war; but retributive punishment is never enough to justify it. Yet a prisoner’s incarceration without hope of release is in many respects in like case to a sentence of death. He can never atone for his offence. However he may use his incarceration as time for amendment of life, his punishment is only exhausted by his last breath. Like the death sentence the whole-life tariff is lex talionis. But its notional or actual symmetry with the crime for which it is visited on the prisoner (the only virtue of the lex talionis) is a poor guarantee of proportionate punishment, for the whole-life tariff is arbitrary: it may be measured in days or decades according to how long the prisoner has to live.
It is therefore liable to be disproportionate – the very vice which is condemned on Article 3 grounds – unless, of course, the death penalty’s logic applies: the crime is so heinous it can never be atoned for. But in that case the supposed inalienable value of the prisoner’s life is reduced, merely, to his survival: to nothing more than his drawing breath and being kept, no doubt, confined in decent circumstances. That is to pay lip-service to the value of life; not to vouchsafe it.”
To me, that sums it up eloquently and persuasively. Reading the facts of the cases that have lead to a whole life tariff being imposed, it is hard not to be revolted, as well as feeling an instinct for revenge. However, to deny hope, or the possibility of redemption, is to deny those prisoners their humanity, which diminishes us all. There is no penalogical reason for a whole life tariff, it is based on revenge (as stated, protection of the public is ensured by the life sentence and the involvement of the Parole Board prior to release, and to set no period of time for punishment makes it arbitrary), and revenge is no basis for a legal system.