I’m here today to talk about the decision
of the European Court of Human Rights in Vinter
which was handed down on 9 July 2013.
It has had quite a lot of press coverage:
we were told that the Prime Minister "profoundly
disagrees" with the decision.
The Minister of Justice Chris Grayling also
criticised the ruling.
He said that “the authors of the human rights
convention would be turning in their graves".
As I shall try to explain I strongly disagree
with that analysis.
The case is about whether it is lawful to
tell a murderer at the time that they are
sentenced that they will never be considered
for release, what we call a ‘whole life
tariff’.
Some people (Mr Cameron, Mr Grayling it would
appear) argue that some people commit crimes
so heinous that they forfeit the right ever
to be considered for release.
They say that these people themselves are
‘so evil’ (whatever that actually means
in legal terms), that they forfeit the right
to be considered for release.
The starting point for the European Court
of Human Rights is of course the Convention
itself.
Normally in prison release cases we are concerned
with Article 5(4) which provides that everyone
who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings
by which the lawfulness of his detention shall
be decided speedily by a court, and his release
ordered if the detention is not lawful.
But here the focus of the challenge to the
lawfulness of the sentence is Article 3.
Now Article 3 provides “No one shall be
subjected to torture or to inhuman or degrading
treatment or punishment.”
So, what is it about a whole life term that
makes it inhuman?
Perhaps what is most crucial in the decision
of the European Court of Human Rights in Vinter
is the point they make at paragraph 122, where
they focus on the concept of “legal certainty”
and I’ll read a few sentences from what
the Court says at paragraph 122.
Where the sentence, on imposition, is irreducible
under domestic law, it would be capricious
to expect the prisoner to work towards his
own rehabilitation without knowing whether,
at an unspecified, future date, a mechanism
might be introduced which would allow him,
on the basis of that rehabilitation, to be
considered for release.
A whole life prisoner is entitled to know,
at the outset of his sentence, what he must
do to be considered for release and under
what conditions, including when a review of
his sentence will take place or may be sought.
Consequently, where domestic law does not
provide any mechanism or possibility for review
of a whole life sentence, the incompatibility
with Article 3 on this ground already arises
at the moment of the imposition of the whole
life sentence and not at a later stage of
incarceration.
Now it seems to me quite appropriate to say
that even a ‘whole life’ prisoner is entitled
to know, at the outset of his sentence, what
he must do to be considered for release and
under what conditions, including when and
where a review of his sentence will take place
or might be sought.
There is one partially dissenting judge, Judge
Villiger (the judge from Liechtenstein) who
disagrees with this point.
In his opinion, it was too early to say that
Article 3 comes into play as regards these
particular applicants – one had served just
over 5 years, another nearly 17 years, and
the other, perhaps the most famous, Mr Bamber
had served 27 years.
Judge Villiger said that he thought he was
approaching a borderline situation.
To quote again, what Judge Villiger says is
“bearing in mind the reasons for his conviction
and sentence, i.e., multiple murders, I would
consider that the justifications for detention
have not (yet) shifted and that the primary
justification for his detention, namely punishment,
remains decisive”.
But even this one dissenting judge agreed
that a time would come when their sentences
should be reviewable.
I agree with the majority – 16 majority
judges, that the law, legality, certainty
requires that the system is known at the beginning.
Saying that these prisoners have a right to
have their sentence reviewed is a million
miles from saying that they should or would
ever be released.
I would encourage people who are worried that
lifers come out too easily to study the Parole
Board’s annual reports.
Only a very small number of even those who
have served the whole of the minimum term
which the sentencing court has fixed are released
every year.
The Parole Board is very cautious when they
take decisions to release.
If a lifer hasn’t been tested in an open
prison, if he or she isn’t supported by
what might be called a robust release plan
supported by his or her probation officer
(or offender mangers as they are often described
today), he won’t get out.
Those who are released remain on license forever,
and those who seriously worry their supervisors
are swiftly recalled to prison, whether or
not they are thought to be involved in re-offending.
In fact to my mind, more interesting in many
ways than the decision in Vinter last week
was the decision of the Supreme Court in Sturnham,
also last week.
That case is reported at [2013] UKSC 47 decision
handed down on the 3rd July.
This I think was a more difficult case: I
think the Supreme Court was right to hold
that the law allows a different test to be
applied to the release of a prisoner than
that which justified their life sentence in
the first place.
This case – the Sturnham Case - concerned
a prisoner who got life or an indeterminate
sentence, not because he was convicted of
murder, but because he was deemed to be dangerous
under the notorious Imprisonment for Public
Protection IPP laws.
No lifer is to be released until the Parole
Board is satisfied that it is “no longer
necessary for the protection of the public
that the prisoner should be confined.”
This meant that in Mr Sturnham’s case, even
long after he had completed his minimum term,
and the Parole Board had concluded that he
had made significant progress, but still presented
a low risk of re-offending and a medium risk
of serious harm, the Parole Board was right
not to direct his release.
This is I think correct on the law as it is
today.
But I would take issue with Lord Mance’s
statement in the Supreme Court that “I see
no inconsistency or incongruity in a scheme
involving a higher initial threshold of risk
for the imposition of a life sentence or a
sentence of IPP, but requiring a somewhat
lower risk to be established in order for
the convicted offender to be eligible for
release.”
I would say that I see plenty of inconsistency
and incongruity in the way the system actually
works today.
I would argue that the Prison and probation
system should be able to do a very great deal
more to help prisoners reduce their risk of
reconviction.
I’d argue that there should be a clear burden
of proof imposed on the state to establish
that it is still necessary for the protection
of the public that the post-tariff prisoner
should be detained.
We are actually about to have a further decision
of the Supreme Court in the cases of Osborn
and Booth which will decide whether the Parole
Board reaches the high standard necessary
to constitute an independent court for the
purposes of Article 5(4) of the European Convention.
Again, I think the prisoners should win in
that case: surely a prisoner should be entitled
to an oral hearing before an independent court
once they have served the punishment part
of their sentence and are being detained simply
because of the risk that they present to the
public?
My view is that it would also be cheaper in
the long run to provide an effective review
system.
But let’s go back to the Vinter decision,
where the prisoners have been told that their
crimes are so heinous that they will never
complete the punishment part of their sentence.
The politicians seem to think that the public
are dismayed by the decision.
Doubtless some are, some aren’t – especially
not, if I may say so, the well-informed public.
I would urge the politicians to listen and
to lead a more informed debate.
Why are they not interested in practice in
other democratic civilized socieities, so
well described by the European Court of Human
Rights?
One might add that the Government would have
saved a lot of money if they had been prepared
to allow for some form of review.
Let’s go back to what Chris Grayling said
about the European Convention on Human Rights
authors turning in their graves.
The founding fathers drew up some basic rules:
The European Convention on Human Rights provides
only the very basic, lowest common denominator,
of human rights.
The founding fathers in the aftermath of the
second world war well understood the vital
importance of respect for the rights of everyone,
even the most unattractive or those at the
margins of society.
The European Court of Human Rights is most
definitely not saying that people who have
committed the most horrible crimes should
be released after a certain amount of time.
They are simply saying that the system should
allow some form of review.
I would say that should apply not only to
those with whole life tariffs but those facing
any very long tariff.
Take the case of Nicola Edgington, who earlier
this year was given a minimum term of 37 years
for murder and attempted murder.
Of course she is dangerous: she had in 2005
killed her mother, but she’d been released
from hospital in 2009.
At the time of the murder, she had begged
the police and medical services to detain
her as she felt that she was dangerous, was
having a breakdown; and that she was being
ignored.
I am not saying when and if she should be
released but I find it astonishing that a
woman in her early thirties with a hugely
complex background can be told that no-one
will even review her case until she is 70
years old.
What is wrong with regular reviews by a court
to check that she is being progressed appropriately
through the system with a view to possible
reintegration into free society?
The same goes to my mind with the three men
in the Vinter case – surely a humane system
allows for some form of possible review of
their cases?
