Strasbourg judges have dismissed an appeal from, Jeremy Bamber, Douglas Vintner and Peter Moore, that their ‘whole-life’ sentences should be struck down because they have no hope of release.

The three – some of the 46 prisoners in the UK for whom ‘life’ will literally mean ‘life’ – were told that the sentences were neither grossly disproportionate nor amounted to inhuman or degrading treatment. The European Court noted that their judicial brothers in the London High Court had relatively recently– and after a ‘fair and detailed consideration’ – decided whole-life sentences were required in each of the cases.

Bamber has protested his innocence for 26 years and whose innocence – if proved – would qualify as surely one of the most serious miscarriages of justice in British legal history. He said: ‘If the state wishes to have a death penalty, then they should be honest and re-introduce hanging. Instead this political decision that I must die in jail is the death penalty using old age or infirmity as the method.’

The Ministry Of Justice welcomed the verdict – a novelty for a European Court judgment – on the grounds that certain crimes were so appalling that their perpetrators should never become eligible for parole and as confirmation of whole life terms being a legitimate sentence in British courts.

Potted Horrible Histories
No aspect of the criminal justice system provokes more controversy than sentencing.

Until the enactment of the Homicide Act 1957 the only sentence for murder was death – mitigated by a rarely used power of the Home Secretary to commute the sentence to one of life imprisonment – traditionally after receiving a private letter from the trial judge drawing attention to any features of the case which he (it was always a ‘he’) considered relevant. The 1957 Act created the category of non-capital murder and prescribed a mandatory sentence of life imprisonment.

In 1983 the then Home Secretary, Leon Brittan made a series of overtly political changes to the existing policies. Not only was it for him to decide on release in the case of mandatory life sentence prisoners but he could also set the minimum term (then called tariffs) they would have to serve –it was a move intended to forestall any excessive leniency by judges, the Parole Board or both and explicitly it made clear that release should always be the sole preserve of politicians.

The policy was adopted wholesale – as any keen political scientists amongst you will have guessed  – by Jack Straw a political invertebrate when he was a Home Secretary – he declared an ‘openness’ to reviewing whole tariff lifers after 25 years and to reduce (possibly) tariffs in cases of ‘exceptional progress’ – presumably, winning a Nobel prize or saving the lives of several dozen prison officers.

However a series of legal challenges made over a decade or so chipped away at the politicising of the sentencing process – culminating in the House or Lords holding that the fixing of the tariff was – for the purpose of Article 6 of Convention – a sentencing exercise and as such a matter for the courts not Home Secretary (R v SSHD ex parte Anderson (2003) 1 AC 837).

The Current Position
Since 18 December 2003, the Criminal Justice Act 2003 s269 has required the sentencing court in the case of murder to either specify a minimum period to be served before the person convicted can be considered for release by the Parole Board or to order that they must serve the rest of their life in prison (section 269(4))

Under Paragraph 4 of Schedule 21 to the 2003 Act – a whole life sentence can be imposed on someone who – was over 21 at the time the crime was committed – and the crime involved: the murder of two or more people or a child in circumstances where there was premeditation, abduction, sexual or sadistic conduct – or the murder was committed for political, religious or ideological reasons – or finally – where the person had previously been convicted of another murder

It is now for the sentencing judge – rather than the Home Secretary – to determine sentence in light of aggravating and mitigating circumstances (R v Jones ((2006) 2 Cr App R (S) 19)

In respect of the lawfulness of such sentences the writing – it has to be said – was already on the wall. A number of Western countries have whole life terms in their sentencing armoury and – as recently as 2008 – their use was upheld by the European Court in the case of Kafkaris v Cyprus (ECHR App No 21906/04) and closer to home in a case brought by David Bieber – though his own whole life sentence was replaced with a minumum term of 37 years.

In all the judgments one thing stands out – as long as the sentence is not completely irreducible it is unlikely to amount to inhuman and degrading treatment under article 3.

In England and Wales, Ken Clarke as Secretary of State for Justice retains a limited power to release on compassionate grounds under section 30 of the Crime (Sentences) Act 1997 – political suicide, of course. The fact that the chances of it happening are roughly the same as Peter Hitchens winning an Elie Wiesel foundation award for Humanity – seems also largely irrelevant to the courts. However it also makes it unlikely that a successful legal challenge to ‘whole life’ sentences, will happen any time soon.