Written by: Lucy Mair
Death by incarceration
Last week Europe’s highest human rights court found that the UK’s ‘whole life’ tariff did not constitute inhuman or degrading punishment contrary to article 3 of the European Convention on Human Rights (by a narrow 4-3 majority). While the media and the government hailed the European Court of Human Rights judgment in the cases of Vinter and Others v the United Kingdom as a victory for the often-embattled UK in Strasbourg, a closer reading of the judgment reveals that the victory may not have been as great as the government hoped for.
Vinter concerned three prisoners (Douglas Vinter, Jeremy Bamber and Peter Moore), convicted of separate murders, all of whom were sentenced to mandatory sentences of life imprisonment with whole life orders.
These sentences, currently provided for in the Criminal Justice Act 2003, were previously imposed by the Secretary of State, who reviewed a whole life tariff after twenty-five years to determine whether it was still justified. The provision for review has vanished under the new regime and the only avenue for release is for the Secretary of State to exercise his discretion on compassionate grounds where the person is terminally ill or seriously incapacitated. Since 2000, no prisoner serving a whole life term has been released on compassionate grounds.
Researchers and campaigners refer to sentences of life imprisonment without the possibility of parole (LWOP) as ‘death by incarceration’. They contend that the feelings of hopelessness that arise upon being sentenced to spend the rest of one’s life behind bars, condemned to die in custody, are akin to the type of mental suffering imposed by a death sentence. Lord Justice Laws reached the same conclusion in the High Court case of Wellington ( EWHC 1109 (Admin)) when he held that ‘…a prisoner’s incarceration without hope of release is in many respects in like case to a sentence of death’. Yet while every country in Europe has abolished the death penalty in recognition of its inherent cruelty, two countries in Europe still sentence prisoners to LWOP: the UK and the Netherlands.
In Vinter the Court confirmed that the trend in Europe is away from irreducible life sentences and that a grossly disproportionate sentence could amount to ill treatment contrary to article 3 at the moment of its imposition. But in the vast majority of cases they held that article 3 would only be engaged where continued imprisonment could no longer be justified.
The Court found much to criticize in the UK’s current regime citing the ‘narrowness’ of the Secretary of State’s policy on compassionate release (much narrower than the Cypriot policy on release considered in the previous Strasbourg case of Kafkaris). They found that the current policy meant that a prisoner would remain in prison even if his continued imprisonment could not be justified on prison policy grounds (since the sentence is never reviewed) and that releasing a prisoner simply to die at home or in a hospice rather than in prison could hardly be considered release.
Despite these criticisms, the Court avoided reaching the logical conclusion and issuing a statement of principled finding against the UK by posing themselves the narrow question of when in the course of a life sentence an article 3 issue might arise. On this basis they could find that none of the applicants in Vinter had reached a stage in their imprisonment where article 3 was engaged, either because they had served a relatively short period of their sentences (Vinter) or that they had had their sentences reviewed by the High Court in 2009 when they transitioned from the older regime to the 2003 Act (Bamber and Moore).
Disapproval for this narrow position came from the court’s own minority who issued a separate judgment. They condemned the majority for holding that an irreducible life sentence ‘may’ violate article 3, claiming that ‘the court used the word “may” in order to avoid a categorical general statement which went beyond the needs of the case’. The minority held that the Article 3 problem ‘does not consist merely in keeping the prisoner in detention longer than would be justified…it consists, equally importantly, of depriving him of any hope for the future, however tenuous that hope may be’. With more than 40% of the court finding that the UK’s LWOP regime is a violation of article 3, it may not be long before the court reflects the almost total consensus in Europe against LWOP. Their next opportunity to consider the UK regime may come when the applicants’ legal teams appeal to the Grand Chamber.
Even if the Grand Chamber does not overturn the judgment, the UK must ultimately decide who they want to keep global company with. Even China and Pakistan provide for the review of life sentences after 25 years. The UK can continue to follow the US where there is an increasing use of LWOP at great public expense and no demonstrable public benefit or they can decide to move in the same penal direction as much of the world and abolish LWOP.