Throwing Away The Key – Whole Life Sentences in the Court of Appeal

by | Mar 1, 2014

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About Natasha Holcroft-Emmess

Natasha is a DPhil candidate in the Law Faculty at Oxford University. Her DPhil research focuses on derogation under human rights treaties. Natasha is also a Lecturer in Constitutional Law at Keble College, and she has a strong research interest in international law and human rights. She works part-time as the Research Director at the Oxford Human Rights Hub, prior to which she worked on the Hub's podcast and blog editorial teams.


Natasha Holcroft-Emmess, ‘Throwing Away The Key – Whole Life Sentences in the Court of Appeal’ (OxHRH Blog, 1 March 2014) <> [date of access].|Natasha Holcroft-Emmess, ‘Throwing Away The Key – Whole Life Sentences in the Court of Appeal’ (OxHRH Blog, 1 March 2014) <> [date of access].|Natasha Holcroft-Emmess, ‘Throwing Away The Key – Whole Life Sentences in the Court of Appeal’ (OxHRH Blog, 1 March 2014) <> [date of access].|Natasha Holcroft-Emmess, ‘Throwing Away The Key – Whole Life Sentences in the Court of Appeal’ (OxHRH Blog, 1 March 2014) <> [date of access].

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.

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  1. Rosemary Cantwell

    17 March 2014

    Dear Ms Holcroft-Emmess,

    Thank you very much for this illuminating article. I endorse the Human Rights of everyone.

    How can people be kept “on death row”? Is this not a breach of Human Rights?

    A US prisoner has just been released and yet he was innocent and had been “on death row” for a quarter of a century. His family life has been taken from him.

    If people are to be kept prisoner then it surely must be right for them to have MANDATORY periodic reviews?

    Rosemary Cantwell

  2. Natasha Holcroft-Emmess

    Dear Ms Cantwell

    Thank you very much for your comments and questions.

    I should clarify that there is a difference between sentencing someone to death and giving them a whole life sentence. Keeping someone on ‘death row’ really relates to the former. In the UK, the death penalty has been abolished, but judges are still permitted to make whole life orders in certain circumstances. By contrast, the death sentence is still an available punishment in the US. It is interesting, however, to consider the differences and similarities between the two.

    Sentencing people to death and keeping them on death row is actually lawful under international law. Most international human rights treaties do not prohibit the death penalty, and it is national law which determines whether the death penalty is available.

    Keeping prisoners on death row for many years, as in the US example you give, is not uncommon. This risks causing the prisoner sustained mental and physical anguish at the uncertainty of their fate and would indicate that the death penalty constitutes inhuman and degrading punishment.

    The courts have expressed concerns, however, about regarding the death penalty as lawful per se but concurrently holding that delay on death row is a breach of human rights. (The concern seems to be to ensure that executions are not expedited and to avoid a situation where carrying out a death sentence is not a breach of human rights, whereas failing to do so would (counter-intuitively) constitute a human rights violation).

    It all leads to a very unsatisfactory state of affairs. My view is that the death penalty itself is unacceptable from a human rights perspective and these issues wouldn’t arise at all if the institution were abolished altogether.

    My main point in this post is that surely it does not pay sufficient credence to the inherent value and innate dignity of every human life to lock someone up with no prospect of reprieve. The example of someone who is exculpated after many years is a shocking reminder of the fallibility of our system and the need for appropriate safeguards.


  3. Natalie Smith

    Dear Ms Holcroft-Emmess,
    I was wondering if you could help me. I’m doing a project at school looking at whole life sentences in the UK, and whether they breach human rights. I’m looking for information and an opinion. From what I have read, I see Article 3 bans “inhuman or degrading treatment or punishment”. I understand that to comply with ECHR there needs to be a possibility of review or release, but I recently read that by law, or the Criminal Justice Act in schedule 21, if court decide that the offence is serious enough (and if the offender is over 21), the punishment should start with a whole life order. This of course follows with several conditions, such as the victim was also abducted or the murderer was previously convicted of murder. This is the case with whole life sentence servers, Ian McLoughlin, for example. When McLoughlin committed both his murders, he violated his right to life when he took someone else’s. So why should he be defended? When he murdered, he treated two others degradedly, and still expects to keep his right. Is there any reason why he should keep this right?

  4. Natasha Holcroft-Emmess

    Dear Natalie,

    Thank you for your message.

    You are correct that Article 3 ECHR prohibits inhuman and degrading punishment. The European Court of Human Rights has interpreted this as requiring a review of the justification for continued imprisonment.

    You are also right that currently English law gives guidance on when a whole life sentence is deemed to be appropriate (including in the circumstances you set out with reference to Schedule 21 of the Criminal Justice Act 2003). If these circumstances are made out, the courts may impose a whole life sentence.

    You said that when McLoughlin committed both murders, he violated his right to life by taking someone else’s. I understand why many people think this (it is based on ideas of retribution, ‘an eye for an eye’, etc.). But I don’t find the argument that you can forfeit your own human rights an attractive one. The point of human rights is that they are minimum standards of treatment which we owe to each other by virtue of our common humanity. They are owed to every human being, including prisoners. They can be limited to some degree, if there is sufficient justification, but they cannot be extinguished altogether. Forfeiture of rights arguments are not compatible with the idea behind human rights.

    No one can deny that these crimes are terrible. The perpetrators can and should be locked up for a very long time, even indefinitely if they are still considered dangerous when the justification for their imprisonment is reviewed. The problem really is the lack of substantive review. This risks treating prisoners as hopeless cases with no prospect of reprieve. I don’t think that this adequately satisfies the human rights standards that we set for ourselves when we signed up to the European Convention on Human Rights.

    I hope that is helpful. Best of luck with your project. If I can be of any further help, do feel free to let me know.


  5. Segun Fakeye

    I agree with you the current “compassionate ground” condition for a release for whole lifers is hardly fit for purpose. But is that enough argument against having whole life terms? I think not.
    I believe we really do need, in some exceptional cases and with some exceptional (??? more like unusually invidious) characters, to keep whole life orders. Take Ian McLoughlin as an example. He had a second chance and a second chance! He misused both second chances at great cost to the society in general and in particular to Jerry Hall and Graham Bucks, both of who had to satisfy McLoughlin’s insatiable appetite for violence with their lives.

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