Whole-life tariffs ruling: criticism misunderstands the law

‘Calls grow for Britain to boycott "toxic" Court of Human Rights’ screams the headline in The Telegraph, whilst the Sun calls this a ‘victory for evil’. So what injustice have the European judges done this week to infringe the liberties of the people of Great Britain? What has so inflamed the media and indeed our politicians is their decision in the matter of Vinter and Others v UK.

There are two things to know.

First, before 2003, the home secretary set the minimum tariff for a ‘mandatory life sentence’ and would then review the minimum tariff for a prisoner after they had served 25 years.

Second, after 2003, as part of a dismantling of the home secretary’s powers, that ‘review’ was abolished. The judiciary selected the minimum number of years a prisoner must serve before the parole board could review the case. If the judge set it at a ‘whole-life’ term level, then the length of the prisoner’s sentence was never reviewed. There was no hope of parole.

The issue in Vinter and Others v UK was whether in the post-2003 regime a ‘whole-life’ tariff amounted to ‘inhuman and degrading punishment’ contrary to article 3 of the European Convention on Human Rights.

On 9th July 2013, the Grand Chamber of the European Court of Human Rights decided that the complete absence of any review of such a whole-life tariff violated article 3.

The decision has been met with rabid political apoplexy and commentary. In this article we strip out the vitriol and rhetoric.

The decision

The European court has not decided that article 3 is violated by the imposition of a whole-life tariff upon the perpetrator of the most serious and heinous crimes.

What the European court has decided is that if a whole-life sentence is imposed then somewhere down the track there must be a ‘review’ of that sentence. Very simplistically, what in a nutshell the European court has said, is that since the UK pre-2003 had a ‘25-year review’ for even its most heinous offenders, there’s no rhyme or reason to abandon that review post-2003. Indeed it’s a safeguard to secure that a prisoner’s detention does not become ‘inhuman and degrading’.

On one view, the political indignation with the European court’s decision is all a ‘storm in a tea cup’, because the European court is doing little more than hold the government to a standard the UK had not only previously adopted but rigorously applied.

As the court noted even in R v Secretary of State for the Home Department, ex parte Hindley [2001] 1 AC 417A: ‘… The secretary of state’s policy [was]… that he was open to the possibility that, in exceptional circumstances, including for example, exceptional progress by the prisoner whilst in custody, a review and reduction of the tariff may be appropriate…. [He] indicated that he would have this possibility in mind when reviewing at the 25-year point the cases of prisoners given a whole-life tariff and in that respect would consider issues beyond the sole criteria of retribution and deterrence… .’

Nevertheless, the ECtHR decision does go further and its juridical basis merits a more thorough analysis.

The reasons

There are several strands to the European court’s reasoning. Some aspects are ontological, but find their roots in observations from the UK’s own judiciary; the European court cites Laws LJ in Wellington [2007] EWHC 1109 (Admin):

‘…A prisoner’s incarceration without hope of release is in many respects in like case to a sentence of death. He can never atone for his offence… his punishment is only exhausted by his last breath. Like the death sentence the whole-life tariff is lex talionis… It is therefore liable to be disproportionate – the very vice which is condemned on article 3 grounds… the supposed inalienable value of the prisoner’s life is reduced, merely, to his survival… That is to pay lip‑service to the value of life; not to vouchsafe it.’

Yet at its core the European court’s reason proceeds on accepted rational models of ‘proportionality’ relating to article 3. In a deft political move it cites Lord Bingham in R v Lichniak and R v Pyrah [2003] 1 AC 903: ‘If the House had concluded that on imposition of a mandatory life sentence for murder the convicted murderer forfeited his liberty to the state for the rest of his days, to remain in custody until (if ever) the home secretary concluded that the public interest would be better served by his release than by his continued detention, I would have little doubt that such a sentence would be found to violate article 3… of the European Convention on Human Rights ... as being arbitrary and disproportionate.’

The ECtHR’s reasoning is that the very issues raised in Vinter and Others v UK slot into the irresistible logic of Lord Bingham’s paradigm. Quietly, the ECtHR makes the sophisticated argument that rather than import its distant European interpretation of the law, it is doing no more than apply the expressed views of some of the UK’s most celebrated jurists.

But then again, therein lies the problem which the British government faces in this rather (dare we say it?) confused debate about the Human Rights Act. The government (and indeed the previous government’s) complaints are based on a misunderstanding both of the law and its purpose, and indeed now it would seem its own process. It is a piece of legislation framed by lawyers. British lawyers. It both defends and protects a sensible, liberal interpretation of the law and people’s rights under the law.

Craig Barlow is a barrister at Ely Place Chambers, London and Jason M Hadden MBE is a barrister at St Ives Chambers, Birmingham