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Whole Life Orders – The Balance of Justice

About The Author

Thomas Horton (Former Writer)

Thomas studied Law at the University of Birmingham, and graduated with a 2:1 in July 2013. In the elapsed time, Thomas has worked for law firm HowardKennedyFsi LLP as a paralegal in the property department. Thomas has also been awarded a Major Scholarship by the Honourable Society of the Inner Temple and will begin the BPTC with City Law School in September 2014.

On 18th February 2014, the Court of Appeal delivered its judgment of the Attorney General’s reference of Ian McLoughlin, and the appeal of Lee William Newell; the decision concerned the validity and imposition of whole life orders.  Since this decision, the sentences of Fusilier Lee Rigby’s killers have been handed down. The decisions demonstrate the legal validity of whole life orders in consideration of Human Rights obligations.

Lord Thomas CJ delivered the judgment of the court in the appeals of McLoughlin and Newell. As his Lordship began his judgment, so shall I begin this article:

The appeals by McLoughlin and Newell challenged this scheme. McLoughlin, who had a history of serious offences, robbed a former fellow prisoner he befriended following his release from prison for a minimum sentence of 14 years for murder. During this robbery he murdered a neighbour by slitting his throat.1 The trial judge ordered a minimum term of 40 years; despite an early guilty plea, the Attorney General submitted that this sentence was unduly lenient, and that a life order should be imposed. Newell, whilst serving a life sentence, alongside another lifer, murdered a fellow prisoner by tying him up and utilizing improvised weapons. Newell used the deceased’s tracksuit bottoms to strangle him to death. It is understood that Newell and his accomplice considered the deceased worthy of this punishment for his conviction of killing a young child. The trial judge sentenced Newell to a whole life sentence for his second murder. Newell appealed against this sentence, submitting that he should not be deprived of all hope of atonement.

To determine the outcome of these appeals, the Court of Appeal had to determine whether the scheme, as set out above, was compatible with Article 3 of the European Convention of Human Rights (ECHR) (as applicable under the Human Rights Act 1998):

No one shall be subjected to torture or to inhuman or degrading treatment or punishment. 

The prevalence of this contention has created considerable developments to its jurisprudence. In 2008, the Grand Chamber of the European Court of Human Rights (ECtHR) decided in Kafkaris v Cyprus that life orders would be in violation of Article 3 should there be no possible prospect of release. In 2009, the Court of Appeal held in R v Bieber that the Secretary of State’s power under Section 30 of the Crime (Sentences) Act 1997 made the scheme compatible with Article 3 ECHR. The Grand Chamber of the ECtHR again decided on this matter in 2013 in Vinter v United Kingdom; this time it was held that Article 3 had been violated by the sentencing scheme for whole life orders as set out at the beginning.

In consideration of the convention compatibility of Section 30 of the 1997 Act, Lord Thomas CJ stated:

Although there may be debate in a democratic society as to whether a judge should have the power to make a whole life order, in our view, it is evident, as reflected in Schedule 21 [of the Criminal Justice Act 2003], that there are some crimes that are so heinous that Parliament was entitled to proscribe, compatibly with the Convention, that the requirements of just punishment encompass passing a sentence which includes a whole life order.

This opinion echoes those referred to in Lord Thomas CJ’s judgment (see paragraph 16), such as those of Lord Bingham and  Lord Steyn in R v Home Secretary ex p Hindley, and Lord Judge CJ in R v Oakes. The challenge, in application of the United Kingdom’s courts’ obligation under Section 2 of the Human Rights Act 1998, arose from the aforementioned decision of the Grand Chamber of the ECtHR in Vinter, where it was held:

… [T]he 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 than 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

The decision in Vinter, therefore, represents an acceptance of whole life orders where there are “legitimate penological grounds”; the decision in Vinter requires there to be a legal regime for review during the sentence when the sentence is passed. The Grand chamber, at paragraph 122 of their judgment, more succinctly stated:

A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought.

The Grand Chamber therefore of the opinion that Section 30 of the 1997 Act was in breach of Article 3 ECHR for being uncertain, and providing an inadequate prospect of atonement. The absence of a certain test, in their opinion, for determining when the Secretary of State would exercise its discretion under s. 30 of the 1997 Act did not satisfy the United Kingdom’s Article 3 ECHR requirements.

The Court of Appeal disagreed with this opinion. In R v Bieber, Lord Phillips CJ at paragraph 48 held that when the Secretary of State exercises their discretion under s. 30 of the 1997 Act, ‘particular regard [shall be given] to the requirement to comply with the Convention’. The requirement of the prisoner to demonstrate that exceptional circumstances have arisen since their sentence is of itself ‘sufficiently certain’ (Lord Thomas CJ McLoughlin and Newell at paragraph 31). The duty of the Secretary of State to consider policy set out in the Lifer Manual, the particular circumstances of the prisoner involved, as discussed in R v Home Secretary ex p Hindley, alongside the wording of s. 30 of the 1997 Act, provides an holistic approach to the determination of the prisoner’s release based on compassionate grounds. Moreover, as Lord Thomas CJ states at paragraph 33

…[T]he term “compassionate grounds”… is a term with a wide meaning that can be elucidated, as is the way the common law develops, on a case by case basis.  

A decision that will be made upon such considerations, which is subject to judicial review, and in such circumstances was held to provide the offender with the possibility of release; the absence of rigidity in the determination of release ‘provides for that possibility and hence gives to each such prisoner the possibility of exceptional release’ (Lord Thomas CJ at paragraph 36).

Upon this determination, the Court of Appeal proceeded to allow the appeal by the Attorney General, and dismiss the appeal by Newell, in particular based upon the considerations posited by Schedule 21 of the Criminal Justice Act 2003.

An immediate ramification of this decision has been Justice Sweeney’s sentencing of Fusilier Lee Rigby’s murderers, Michael Adebolajo and Michael Adebowale, who were handed a life sentence and a 45-year sentence respectively. The case, in a similar fashion to that of McLoughlin and Newell, is an ‘exceptional and rare’ (McLoughlin and Newell paragraph 59)  case, as the circumstances enunciated by Justice Sweeney demonstrate.

In a fashion similar to that seen by the Supreme Court when deciding on prisoners’ voting rights, the Court of Appeal have provided a deliberative discussion of the law in light of the opinion of Strasbourg. Similarly, there has been an acceptance of the opinion of Strasbourg, i.e. that there should be a scheme compatible with Article 3, which has been read into the way that the scheme has been previously applied and the wide-scope it encompasses for determining release on compassionate grounds. The decision provides a welcome clarification on the validity of whole life orders to provide the right balance between punishment and atonement for those who have committed the most heinous of criminal acts.

Edited 11:09, 03/03/2014 - correction as per comment from John below.

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Tagged: Criminal Law, Human Rights

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