In Hutchinson v UK, the ECtHR again addressed the vexed question of the compatibility of whole life sentences with human rights law. This post analyses the Chamber decision, recognising the value of judicial dialogue, but also highlighting cause for concern where problematic questions remain.

The starting point is the Grand Chamber case Vinter v UK. In this decision, the highest authority in the ECtHR criticised the English law on mutability of whole life sentences. It was held that the narrow scope for reducibility of such sentences under s 30 Crimes (Sentences) Act 1997, on compassionate grounds limited primarily to terminal illness or physical incapacitation, was incompatible with Article 3 ECHR (freedom from inhuman and degrading treatment / punishment).

In McLoughlin, the Court of Appeal disagreed with the ECtHR. Despite the restrictive written policy of the Secretary of State, found in the 1997 Act and the Lifer Manual, the court held that Article 3 was adequately protected. This was because the Secretary of State was obliged to make decisions compatibly with Article 3, and this would involve a consideration of all the relevant ‘exceptional circumstances’. The effect of the Court of Appeal decision was that it did not matter that the policy on reducibility of sentences has not been reformulated. The combination of that policy with the judicial interpretation provided by the Court of Appeal made the law sufficiently clear and did not violate Article 3.

In Hutchinson, a majority of the Chamber accepted this approach. The majority relied on the practice of allowing questions of interpretation of domestic legislation to be resolved by the national authorities. This was enough to satisfy the majority that the law is now sufficiently clear.

There is a positive corollary of this vexed debate. It seems that the courts are working on the basis of a (gradually developing) consensual acceptance that reducibility of sentence is key. These cases also provide an example of judicial dialogue between the domestic and supranational courts, which should assist to cement the ECtHR as an important forum in human rights debates.

However, problems remain. It is doubtful whether this jurisprudence suffices to address the concerns of the Grand Chamber in Vinter. At [126] the Court held that it “must be concerned with the law as it presently stands on the published policies as well as in judicial dicta and as it is applied in practice to whole life prisoners. The fact remains that … the Secretary of State has not altered the terms of his explicitly stated and restrictive policy on when he will exercise his section 30 power.”Should not the published guidance of the executive be required to match the scope of the legal policy set out by the Court of Appeal? It hardly begets legal certainty that these decisions rest with the Secretary of State, who appears to have free rein over what counts as ‘exceptional circumstances’.

In a dissenting opinion, Judge Kalaydjieva questioned the assumption that the Grand Chamber was not fully informed about the scope of the Secretary of State’s discretion, and the manner of its exercise, in reaching its conclusions in Vinter. Her dicta, although cautious, appear to be quite telling: “I do not deem myself competent to determine whether the Court of Appeal expressed an ex tunc trust or an ex nunc hope that, even though to date the Secretary of State for Justice has not amended the content of the Lifers Manual after Vinter, he was, is and always will be “bound to exercise his power … in a manner compatible with Article 3” … [I]n so far as the Court of Appeal’s part in the admirable post-Vinter judicial dialogue said “Repent!”, I wonder whom it meant?”

Perhaps it is relevant that the Chamber’s acceptance of the Court of Appeal’s gloss on the UK rules comes at a time when the ECtHR is particularly vulnerable. The entire debate has been played out in the shadow of political contentions to renegotiate the UK’s relationship with the ECtHR. It is argued that good judicial dialogue and steadying relations between the UK and ECtHR are valuable. But the ECtHR must be careful not to take concessions where more could be done to ensure adequate protection for human rights, especially where rights as important as liberty may be compromised.