The European Court of Human Rights’ recent decision in Vinter v UK will inevitably come under fire for infringing abstract notions of subsidiarity and the Court criticised for meddling in national affairs (see the prediction in Claire Overman’s blog post for the Oxford Human Rights Hub earlier this week). The present post outlines some of the developments in both domestic UK and ECtHR jurisprudence which demonstrate why the Court’s decision – that whole life orders without the possibility of parole violate Article 3 ECHR – is in principle correct.
Firstly, the ECtHR has at last granted official recognition that UK law does not in reality satisfy the requirement of de facto reducibility of sentences, established in Kafkaris v Cyprus. Reducibility requires that prisoners shall be given an opportunity, in law and fact, to have the justification for their continued detention reviewed after a certain amount of time has passed. The UK Court of Appeal in R v Bieber at  suggested that a reconsideration of UK law on this might eventually be necessary. The Secretary of State’s discretionary power to release on compassionate grounds (terminal illness or severe physical incapacity) under s30(1) Crimes (Sentences) Act 1997 is so narrowly constructed that anyone falling under it cannot hope to have any quality of life on the outside. Thus there is in fact no meaningful possibility of release. This state of affairs cannot be compatible with the requirement of humane treatment implicit in Article 3 ECHR.
Secondly, there has been an international shift in focus relating to the justification for incarceration. Although punishment still plays a legitimate part, there is increasing emphasis on the important rehabilitative purpose of imprisonment. In James, Wells and Lee v UK, the ECtHR established an obligation on States to show commitment to realising the rehabilitative aim of detention in their prison laws and practices. The Court in Vinter noted that there is now clear support in international law for the principle that all prisoners, even those serving life sentences, should be offered the prospect of release if rehabilitation can be achieved. For this to be possible, a review of the continued justification for detention must be available, and this is all that the Court ordered in Vinter.
Thirdly, an important development in UK law suggests that the current state of affairs is unsatisfactory. In Anderson the UK House of Lords required that control over the length of a person’s detention be entrusted to an independent and impartial tribunal rather than a member of the executive. The current law, under which release is at the discretion of the Secretary of State, is obviously out of line with this development. The Home Secretary, as a member of the government, is susceptible to populist pressure in a way that judicial authorities are not. But a particular criminal’s notoriety is not a good criterion on which to judge the justification for their continued detention. For this reason, sufficiently independent review of detention must be established. Release might eventually be granted, or clearly would not if that would endanger the public, but the point is that even those serving whole life orders must be permitted the possibility of pleading for parole.
To paraphrase dicta of Laws LJ in the UK Court of Appeal in Wellington, as the ECtHR did in Vinter: whole life sentences of imprisonment, without the possibility of parole, are a poor guarantee of proportionate punishment and run counter to respect for human dignity. The hopelessness inherent in a practically irreducible sentence cannot satisfy the obligations incumbent on civilised societies under Article 3 ECHR. ‘Throwing away the key’ contravenes the basic promise of a life with dignity, which ought to be important, not only to European human rights judges, but also to national governments and individual citizens who subscribe to the ideal of affording to everyone their basic human rights. The political backlash against a judgment which grants whole life prisoners the minimal right of a review of their detention after a very long time must not obscure the positive steps that the ECtHR has taken towards realising this ideal.
Natasha Holcroft-Emmess completed the Oxford BCL with Distinction in 2013 and is a frequent contributor to the Oxford Human Rights Hub Blog.