A specially constituted five-member Court of Appeal has ruled unanimously in R v McLoughlin that the imposition of a ‘whole life order’ for murder not does violate Article 3 ECHR. The case is particularly noteworthy given the contrary position reached by the European Court of Human Rights (ECtHR) in Vinter.
The case concerned appeals brought by three persons convicted of murder and given whole life orders and one reference by the Attorney General under section 36 of the Criminal Justice Act 1988 that a minimum term of 40 years was ‘unduly lenient’. In the latter case the trial judge considered, in light of Vinter, that he was prohibited from passing a whole life order and thus imposed the lighter sentence. One appellant abandoned his appeal and it was confirmed that another had not in fact received a whole life order; as such only the cases of McLoughlin (the AG’s reference) and Newell, two persons convicted of murder for a second time, were determined.
English law mandates that those convicted of murder receive a sentence of life imprisonment. The trial judge sets a minimum term that must be served before the prisoner can be considered for release by the Parole Board; in some cases the judge may determine that the minimum term is the offender’s whole life. The statutory scheme governing such decisions is found in section 269 and schedule 21 of the Criminal Justice Act 2003. Further, section 30 of the Crime (Sentences) Act 1997 gives the Secretary of State the power to release a life prisoner in exceptional circumstances on compassionate grounds.
In Vinter the ECtHR held that for a sentence to be compatible with Article 3 there must be a “prospect of release and a possibility of review” as detention always had to have a legitimate penological purpose and the original justification could shift over time. The Court stated that a review mechanism must exist at the time the sentence is passed and that a life prisoner should know what to do to be considered for future release and not have to serve an indeterminate number of years before being able to complain that his sentence was no longer justifiable. In finding a breach of Article 3 the ECtHR stated that English law lacked clarity and certainty as despite authority indicating that section 30 should be interpreted broadly the Prison Service Order was drafted in extremely restrictive terms (providing, essentially, for release on compassionate grounds only when a prisoner was terminally ill).
The Court of Appeal expressly disagreed with Strasbourg on this point. The fact that the Order had not been changed was of “no consequence” because English law was “clear” as to the possibility of release in exceptional circumstances and the Secretary of State in exercising that power (a decision subject to judicial review) would have a duty to act in a Convention-compliant manner and could not be restricted by the Order. There was therefore no incompatibility between Article 3 and existing English law and courts could continue to hand down whole life orders. In the present case McLoughlin’s sentence was thus increased to a whole life order and Newell’s appeal was dismissed.
The Court of Appeal’s judgment is certainly a victory for the government, yet it does leave questions unanswered. Thus, what constitutes ‘exceptional circumstances’ has been left open with the Court expressly noting that it was difficult to specify what these might be. Individual offenders may still therefore remain unclear as to what they need to demonstrate and when in order to be considered for compassionate release (both points of issue for Strasbourg). It could of course be argued that it is impossible to specify a ‘when’ at the time of incarceration (notwithstanding Vinter) as the very point of a whole life order is that, at the time of sentencing, it is seen as the only just order. As for the ‘what’ the simplest solution might be to revise the Prison Service Order. In fact it seems nonsensical not to when on the face of it the policy stated therein is not Convention-compliant. Indeed, had the government done this in the first place the need to go back to the Court of Appeal might have been avoided entirely.