Contrary to earlier decisions by domestic courts and the European Court of Human Rights (ECtHR), life sentences with whole-life tariffs were ruled to be in breach of Article 3 of the European Convention of Human Rights (ECHR) which provides for the ‘prohibition of torture and inhuman or degrading treatment or punishment’ if they do not have any review mechanism. The case of Vinter and Others v the United Kingdom App nos. 66069/09, 130/10 and 3896/10 (ECHR, 9 July 2013) explains why such tariffs are a breach of Article 3 of the ECHR if they do not have the possibility of review.
The case concerns three applicants, each serving a whole-life tariff in prisons in England. The first applicant, Mr Vinter, had his whole-life tariff set by the trial judge in 2008. The second and third applicants, Mr Bamber and Mr Moore respectively, had their whole-life tariffs set by the Secretary of State. These two tariffs were imposed prior to the commencement of the Criminal Justice Act 2003.
The case concerns three applicants, each serving a whole-life tariff in prisons in England.
Prior to 2003, the Secretary of State was able to review prisoners serving a whole-life tariff after 25 years, deciding whether incarceration was still necessary. When the Criminal Justice Act 2003 was enacted, it removed the Secretary’s power, but allowed whole-life prisoners to have their sentence reviewed by the High Court. Subsequently, the second and third applicants asked for their tariffs to be reviewed by the High Court after the commencement of the 2003 Act. However, these reviews failed to reduce their tariffs and they are still currently serving a whole-life tariff. The first applicant also had his sentence and tariff reviewed on appeal to the Court of Appeal. However, they felt no good reason to depart from the principle in Schedule 21 to the 2003 Act – that a murder committed by someone already convicted of murder should receive a whole-life tariff. All the applicants argue that a whole-life tariff is contrary to Article 3 of the ECHR.
Initially, the applicants appeal to the ECHR was heard by a Chamber of seven judges. The Chamber held by a 4-3 majority that even though whole-life tariffs were scarcely used in other Member States, they did not breach Article 3 of the ECHR. Only the minority held that the lack of review of the sentence lead to a breach of Article 3. Subsequently, the applicants appealed to the Grand Chamber for a review of the Chamber’s judgment at the first applicant’s request.
Before the Grand Chamber of the ECHR, the Government argued that the penal policy in England and Wales is long-standing, well-established, and reflected the view – both of the domestic courts and Parliament – that there were some crimes so grave that they were deserving of lifelong incarceration for the purposes of pure punishment. They also agreed that a life sentence without the possibility of parole was in principle, incompatible with Article 3 (paragraph 92).
They further submitted that the Chamber was correct to find that a discretionary life sentence with a whole-life tariff did not breach Article 3 at the imposition of the sentence. They argued that the possibility of review in a whole-life tariff gives the prisoner little but potentially false hope, something which Article 3 did not require (paragraph 93).
…a life sentence without the possibility of parole was in principle, incompatible with Article 3.
When questioned about the lack of a 25-year review, the Government said the aim of the 2003 legislation – which removed this power – was to ‘judicialise’ such decisions. Schedule 21 of the Act provides enough sentencing guidelines for judges to effectively choose tariffs for a life sentence. They also reiterated that all three applicants’ tariffs were imposed by judges, all of which were subject to a review in the Court of Appeal (paragraph 95).
The applicants submitted that their tariffs were in fact irreducible because no prisoner had been released under section 30 of the 1997 Act or any other power. However, they disagreed with the Chamber’s finding that a whole-life tariff was not contrary to Article 3 when it was issued – because this failed to address the issue of the sentence being a breach of Article 3 ab initio (from the beginning), and no review system was in place at that time (paragraphs 97 and 98).
Regarding the issue of the sentence being a breach of Article 3 ab initio, the applicants submitted that a prisoner could be kept incarcerated for the remainder of their life if there were sufficient grounds to do so. However, being kept incarcerated just for the purpose of punishment would be a breach. They also accepted that throughout a whole-life tariff, the justification of the sentence (deterrence, public protection etc.) may change over time, but argued that a review must be in place to ensure there are still sufficient grounds to justify incarceration for life. For the issue of review, they argued the Government should have included a clause for a 25-year review in the 2003 Act (paragraphs 99 and 100).
The Grand Chamber accepted that in principle, the decisions on sentence reviews and release arrangements was outside the scope of the Court, provided the Member States’ systems do not contravene rights in the ECHR. Nor is it the Court’s role to decide appropriate sentence lengths; accepting that states must be free to impose whole-life tariffs to those who have committed the most serious crimes. They also reaffirmed two points decided in Kafkaris v Cyprus App no. 21906/04 (ECHR 2008):
- A life sentence does not become irreducible by the fact in practice it may be served in full, and no issues arise under Article 3 if a life sentence is in fact, and in law, reducible
- In determining whether a life sentence is irreducible, the Court must ascertain whether a prisoner has a prospect of release.
Thus, for a life sentence to remain compatible with Article 3, it must be capable of being reviewed, and there must be a prospect of release (paragraphs 108–10).
However, the Grand Chamber declined to comment on when this review should take place as it is up to the Member State.
In paragraph 111, the Grand Chamber states that a prisoner cannot be detained without legitimate penological grounds. Thus, to ensure this does not happen, the sentence must be reviewed to ensure that the correct penological grounds for detention are present, as they may change throughout the duration of the sentence. They also highlighted that there is support in European and international law for those serving life sentences to have a prospect of rehabilitation and release (paragraph 114).
The Grand Chamber concluded that in the context of a life sentence, Article 3 of the ECHR must be interpreted as requiring the sentence to be reducible if there is no longer legitimate penological grounds for the lifelong incarceration of the prisoner. They submitted this should be through a review of the sentence after a certain time period. However, the Grand Chamber declined to comment on when this review should take place as it is up to the Member State. Instead, they submitted evidence that 25 years is an acceptable time for reviewing the sentence based on comparative and international laws (paragraphs 119–121).
In paragraph 122, the Grand Chamber stated that a whole life prisoner is to know at the beginning of his sentence what he must do for the prospect of release, as well as when a review of his sentence will occur. Subsequently, if domestic law does not provide for a review of the whole-life tariff, it will be a breach of Article 3 of the ECHR from the outset of the sentence. Therefore, the UK’s current legislation surrounding whole-life tariffs is in breach of Article 3 of the ECHR as it does not have any review mechanism in place.
What now for the UK?
The decision of the ECHR does not automatically entitle the applicants and other life prisoners in the UK to be released. The UK parliament will have to change the legislation on whole-life tariffs to include a review system after a specified period of time to ensure any future whole-life tariffs are compatible with the ECHR.