PAS lecture: Whole life prisoners and ‘the right to hope’
‘We’re talking about prisoners whose crimes are regarded as so exceptionally serious that they have been told that they must die in prison,’ said Ed Fitzgerald QC last week. ‘Once you create the category, you create the appetite for adding to it.’
Speaking about whole life prisoners, the leading human rights barrister addressed the Prisoners’ Advice Service (PAS) 25th anniversary debate on Thursday last. ‘In the 1940s and 50s it used to be thought unthinkable that anyone would be detained for the whole of their lives,’ he said. ‘Now we have 60 such prisoners and the categories are being added to, along with calls for more people to get life.’
Whole life prisoners include Ian Brady, Rosemary West, Jeremy Bamber, Donald Nielson (the Black Panther), and Ian McLoughlin, who killed Graham Buck while on day release from a sentence for a previous murder. Hammering home their notoriety, Fitzgerald continued his who’s who of Britain’s most infamous killers: Robert Maudsley (‘Hannibal the cannibal’), Peter Sutcliffe (‘the Yorkshire ripper’), Anthony Hardy (‘the Camden ripper’), Trevor Hardy (‘the Beast of Manchester’), Mark Martin (‘the Sneinton Strangler’), Steven Griffiths (‘the crossbow killer’) and Michael Adebolajo (who killed British soldier Lee Rigby).
In the face of a hostile media, Fitzgerald has maintained his opposition to whole life sentences. ‘Those countries that adopt a policy of life without parole create a prison system that tends to become a disease,’ Fitzgerald said. ‘There are 49,000 people serving sentences for life without parole in the United States. 8,000 are in Florida alone. And when they say life, they mean you will die in prison.’
Despite countries like the US continuing to buck the trend, Fitzgerald pointed to ‘a growing consensus throughout Europe and the world that no one should be sentenced to life meaning life.’
Yet the spectrum of international opinion also has a more compassionate pole. Many Latin American countries simply don’t have life sentences, preferring long fixed term sentences. Other systems require some sort of review, whether after 15 years in Germany or 25 in the International Criminal Court.
The PAS debate occurred in the context of continued legal wrangling over prisoners. There has been over a decade of ‘dialogue’ about prisoners between the European Court of Human Rights and the British Government. The former, which sits in Strasbourg, has consistently ruled that at least some prisoners must be given the right to vote. But following a debate in Parliament, British policy remains firmly wedded to a blanket ban on prisoner voting.
Following the 2013 case of Vinter, the European Court raised another bone of contention: whole life orders. Prisoners subject to such orders cannot be released without the Home Secretary’s discretion. That discretion will only be exercised on compassionate grounds of terminal illness or serious incapacitation.
Fitzgerald quoted from the Vinter judgment, where judges cited a ‘right to hope’ among their reasons for finding a violation of Article 3 of the European Convention: ‘hope is an important and constitutive aspect of the human person,’ The judgment reads. ‘Those who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change.’
Turning to a political context, Fitzgerald’s audience was reminded of ‘extreme cases of IRA killers who were regarded as completely without remorse at the time. They have reformed, rejected violence and spoken out against it.’ In the past Fitzgerald has represented some of those very Irish republicans at parole board reviews.
Whole life sentences have generated a debate of niche interest, yet of great legal and moral importance. The issues relate to broader questions about the changes to penal policy instituted by previous governments. Tony Blair’s Labour government doubled the UK’s prison population, leaving the country with more privatised prisons per capita than even the United States.
In recent years, Coalition and then Tory legal aid cuts have left legal advice ‘deserts’. Prisoners, many of whom are illiterate, rely on organisations like PAS to fill the breach. In a desperate sign of the times, PAS have joined forces with the Howard League for Penal Reform in trying to ‘crowd-source’ funds for a legal challenge to prisoner legal aid cuts.
In the midst of a worsening crisis for UK prisoners, debate about prisoners’ rights is more important than ever. In the ongoing dialogue, Fitzgerald’s compassionate position has sounded a hopeful note: ‘The alternative view is founded on the capacity to change for every human being.’
Franck is a pupil barrister at Garden Court Chambers