Whole Life tariffs unlawful – Vinter v UK in the ECHR

Introduction

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.

We gave the background here.

 

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.

 

Comment

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.

Advertisements

15 thoughts on “Whole Life tariffs unlawful – Vinter v UK in the ECHR

  1. Captain sensible

    I watched the interview on TV with Vinters lawyer. He struggled to explain why this case had even been brought in front of the ECHR. He was your typical liberal progressive who treats the British public view with utter contempt, as does the human rights industry in general.

    Vinter is a man who murdered and then was released on license only to murder again. Quite rightly the public think that this man should be behind bars forever and die in prison. Only some twisted leveraged logic would think otherwise, and of course human rights lawyers provide us with that very logic.

    When the death penalty was abolished it was said life sentences would mean life. As you point out, and as Vinter demonstrates, this is clearly not the case. Liberal progressives and general do-gooders will always try to circumvent the system in favour of the guilty, whilst the victims can go to hell.

    Shame on you all.

    Reply
    1. Dan Bunting Post author

      Not true I’m afraid. See here for the Hansard debate and Callaghan (who was Home Secretary and responsible for the Bill and release of lifers at the time) clearly saw the tariff as being around 10 years. Since then, sentences have gone up and up and up. Don’t forget that whole life was not an option until 1983. Even then, a right of review after 25 years was in place in such a case until 2005.

      No lawyer, ‘human rights’ or otherwise has suggested that Mr Vinter be released.

      I haven’t seen the interview you are talking about (and will happily comment further if you post a link) but it’s quite clear why the case was brought – the question for the court was whether it is correct to have a sentence with no possible chance of ever being released. The Court answered in the negative and in that they were quite clearly correct I would suggest.

      Reply
      1. Captain sensible

        Dan

        Firstly I can’t provide a link to the clip of Vinters lawyer as it was on an ITV news bulletin, but accept it from me that he could not justify when questioned the need to bring this case.

        Secondly I’m intrigued as to why liberal progressives, probably like yourself, feel the need to challenge everything? Do you not realise that in attempting to link everything to human rights you are actually doing human rights a disservice and more importantly provide the public with more ammunition to fire at politicians who want out of the ECHR.

        I’m positive the founding fathers who drafted the original act would be appalled at the current distortion of the process. I understand from an H R lawyer that the act is a living document and therefore subject to a wider interpretation, which seems obvious when you see the goal posts being moved to suit the applicants case. I can see the clear frustration of the government and the public when this happens.

        This is why the use of human rights needs to be justified and cases like Vinter should get nowhere near a court.

        The alternative according to your comment is to say murderers get 10 years and then released. How did that work out for Vinters victims?

      2. Dan Bunting Post author

        1. I’m not doubting you, but he is a top-notch criminal silk and would know why the case needed to be brought – it maybe the way that it was edited?

        2. It’s not a question of ‘challenging everything’, the question of whole life tariffs is a classic example of a Human Rights question. The idea of rights as being in anyway a bad thing is a very recent idea, and a very worrying one (to my mind). The ‘Founding Fathers’ of the ECHR (many of whom were Conservative lawyers from the UK) would have well understood the need for the Courts to develop. The rights protected relate to liberty and freedom, personal integrity and autonomy, and respect for the rule of law – classic ‘Conservative’ and British values. The Vinter case is all about the extent to which the state can take control of someone’s life for the rest of their life, it’s harder to imagine an issue that is more suitable for a Human Rights Court to consider than that.

        Bear in mind that the UK wins 98% (or whatever it is) of the cases that go to the ECHR, the problem in the media is a manufactured one. It could also be resolved by having a British Constitution, but that’s a different argument …

        You could say that if the Government (and a lesser extent the public) are frustrated by a Court’s decision, then it’s cworking. It sounds flippant, but the essence of a constitution is to protect unpopular minorities from the will of the majority (or 35% of those voting in the case of the UK system).

        I’m not saying 10 year tariffs is right. I’m just trying to squash the idea that somehow ‘life was supposed to mean life’ – it never was. The ‘Founding Fathers’ in Parliament who abolished the death penalty would consider the current sentencing regime far, far too harsh rather than be horrified at their leniency.

  2. Captain Sensible

    Dan

    I was waiting for (and hoping you wouldn’t) trot out the old canard of the ECHR decisions going in favour of the UK. Unfortunately the ones the courts seem to decide against the UK are the ones which seem to fly in the face of common sense and public opinion. I’m aware that most most HR lawyers see public opinion as the “lynch mob ” as they were described on one HR blog.

    In the spirit of trotting out canards I will ask what about the rights of the victims – is inot the most fundmental right the right to life ? Unfortunately HR lawyers conveniently ignore this part of the equation.
    Dont get me wrong Im generally in favour of human rights but bringing cases such as Vinter which seem to be no more than “points scoring” and agitating do nothing for the reputation of of human rights and those who seek to protect human rights. .

    Reply
    1. Dan Bunting Post author

      Well, glad I’m predictable :) I get the feeling that most people’s objections (or at least the medias objections) are more about the politics of Europe than the individual decisions.

      On any view, the Vinter case makes no difference to anyone. There are 50 people who will now have the same rights as they had under thatcher, namely the ability to ask for a review of their whole life tariff after they have been inside for 25 years. None of them will go free after 25 years, but maybe they will have their tariff re-fixed at 40 or 50 years or whatever. Realistically, none of them will be getting out until they’re too old to do much.

      When you look at it, it is a judgement that makes so little difference that if you disagree with it then the best thing to do is say ‘so what’. It’s hard not to look at the storm created and think its been whipped up by the media for political purposes.

      As for the victims point, it’s clear a victim has rights as we all do. If executing Vinter would bring back his victim then go for it.

      The ECHR is a contract between states and controls state actions. If there was evidence that a whole life tariff deterred murderers and lowered the murder rate, then the argument as to whether a failure to implement that can violate the potential victims Art 2 rights begins to take shape. There isn’t any evidence of that and so victims rights is a red herring.

      The state didn’t kill the victim, Vinter did. The state is locking him up and so the ECHR bites on that.

      Crime is pretty low in Europe generally, but is lower in the countries with a low incarceration rate. Those aren’t linked causally necessarily, but maybe it’s worth considering.

      Reply
  3. Captain Sensible.

    Dan

    You made my point for me in the reply above. It’s a “so what” decision, which is exactly why I ask the question why would HR lawyers challenge it other than points scoring and general anti government sentiment? This I think is the real reason. Most HR lawyers are probably left of centre politically and the constant challenges with “so what” cases are more political posturing and gestures rather than any real contribution to human rights. This it brings the whole HR issue into disrepute and puts HR lawyers on par with journalists and estate agents in the publics “most disliked” list.

    As for victims rights. According a news report recently murder rates in the UK are falling and have been for a few years. This may indicate that tougher sentencing is actually working so an Art 2 case may be taking shape after all. I look forward to how you will build and go forward on this 8-))

    Just imagine one of the highly paid HR lawyers taking up a case against the criminals – now that would be something. I can hear HR lawyers choking on their champaign at their Hampstead dinner parties even as I write this.

    Reply
    1. Dan Bunting Post author

      Well, it’s ‘so what’ for the general public. It’s of great interest to those serving whole life sentences and to Prison Officers (it is easier and safer to manage someone who has a chance for release for obvious reasons).

      I’m not so sure it’s a left-wing thing. Ideas of individual freedom and limited government are, if anything, right-wing ideas.

      There is no evidence that sentencing has any real impact on offending rates (see a post I wrote here about it), it’s more complicated than that. As I said, the places with the ‘softest’ sentencing regimes in Europe tend to have the lowest crime rates. That’s not to say reducing prison sentences reduces crime (obviously), but to say that there are a huge variety of factors that filter into it.

      With ‘victims rights’, I don’t think that there’s any chance of increasing sentences because of that because, as I said, there’s no evidence that sentence lengths makes a difference. But HR lawyers frequently act against ‘criminals’.

      Reply
  4. Captain sensible

    Dan

    You are correct limited government and individual freedoms are generally right of centre politically but I think you will find this definition more applicable when it concerns the vast majority of law abiding citizens. To apply it to a small contingent of crims and HR lawyers is it a bit of twisted logic I think.

    In fact I think the logic in your argument is being twisted each time. You say it’s a “so what” case and means nothing in reality. I agree with you and say well why bring it in the first place? You then say its important to the crims, but acknowledge that those on whole life sentences won’t suddenly get a 25 year revue and be let out. If they know this, which has been acknowledged by their lawyer, and we know this, then what really is the point of challenging in the ECHR ? Lets be honest it’s the leftist educated elite that want to give a Conservative government a bloody nose.

    You also say that evidence of stiffer sentences (whole life) reducing crime may start to build a art 2 case for the victims, then you flip flop back to the left wing argument that countries with lower sentences have less crime when its pointed out that our murder rates are falling. This is too simplistic anyway as there are multiple cultural and social factors associated with criminal behaviour on a country to country basis.

    So Dan you’ve left me a little confused on where you stand on all this. Was this case important or not ? If it was, then who benefits ? Will it really make any difference to the whole life sentence ? Do you think it’s yet another waste of public money ( I assume here that we the tax payer are fitting the bill as usual) ? Will the crims get a reduced sentence ?

    My view, for what it’s worth, is that nobody really benefits except the lawyers. The crims have no chance of getting a shorter sentence, it’s been a colossal waste of public money and the public get the impression yet again that the ECHR is a bunch of Leftards with no grasp on reality or the wishes of the British public and government.

    Reply
  5. Pingback: Two more whole life tariffs – Smith and Newell | UK Criminal Law Blog

  6. Pingback: Mark Bridger to appeal against sentence | UK Criminal Law Blog

  7. Pingback: Review of 2013 | UK Criminal Law Blog

  8. Pingback: Whole Life Tariffs – the saga continues | UK Criminal Law Blog

  9. Pingback: Anwar Rosser – the last whole life tariff? | UK Criminal Law Blog

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s