Throwing Away The Key – Whole Life Sentences in the Court of Appeal
Flouting the judgment of the European Court of Human Rights (ECtHR) in Vinter v UK, the UK Court of Appeal has held that whole life sentences do not violate Article 3 ECHR (R v McLoughlin – see Neil Shah’s blog post from earlier last week). This post explains why the Court of Appeal decision is wrong and why it matters.
Article 3 ECHR prohibits inhuman and degrading treatment and punishment. The ECtHR held that UK sentencing law permitting whole life orders violates Article 3 because it does not allow for any real possibility of review. As the law currently stands, the only prospect of release for a whole life prisoner is ‘under compassionate grounds in exceptional circumstances’. In reality this means only if such a prisoner is severely physically incapacitated or terminally ill.
Does this fit with the requirement of a review of imprisonment to determine whether it continues to serve a legitimate penological purpose? No. In such circumstances, would allowing a prisoner to die on the outside, rather than behind prison walls, constitute a meaningful prospect of release, sufficient to satisfy the prohibition on inhuman and degrading treatment? No. Does the current UK law, as recently upheld by the Court of Appeal, comport with the basic standards of respect for human dignity which underlie the spirit of the human rights obligations accepted by the UK under the ECHR? No.
For these reasons, the Court of Appeal’s decision to flout the ECtHR jurisprudence on whole life sentences is wrong. It denies minimalist procedural protection for a substantive right of fundamental importance.
To be entirely clear: people still can, and should, be imprisoned for a very long time for very serious crimes. That imprisonment can and, in many cases, will last until the end of such prisoners’ lives. All that Vinter said was that imprisonment must be reviewed after lengthy periods. We cannot throw away the key. To do so constitutes inhuman and degrading treatment. The availability of review does not deny the seriousness of the crimes which these people committed. All it does is preserve the bare minimum of the basic rights afforded to all human beings.
Some in the media have argued that such decisions, which bring the ECtHR into conflict with the UK politically, actually undermine human rights, because protecting prisoners’ rights discredits the ECtHR’s judgments and gives human rights a ‘bad name’. But these are in fact exactly the cases in which human rights protection is most needed.
UK laws are, and should be, made by a sovereign Parliament. But these laws are instigated and supported by governments and parliamentarians who are keen to please the voting majority. They are therefore susceptible to the views of this majority. The majority often either takes no interest in, or effectively suppresses, the interests of minorities. Prisoners are a minority group which the majority actively dislikes. As a result, their interests are marginalised, and little account is taken of them in the laws which the representatives of our majoritarian democracy enact. Yet, just because these people are subject to the criminal law does not mean that they forfeit the rights which are afforded to everyone by virtue of their humanity. It is well established in domestic UK law that prisoners retain their human rights.
It is in these situations that human rights are most needed. They are not discredited where they protect the interests of unpopular minorities in society. On the contrary, such situations show that human rights are achieving their most difficult and important objective: protecting the basic rights of the marginalised from suppression by the prevailing majority.
That is why getting it right matters. That is why we cannot throw away the key.