“Murder most foul”: whole life imprisonment not a human rights breach

22 November 2012 by Rosalind English

Oakes and others v R [2012] EWCA Crim 2435 – read judgment

The imposition of whole life orders for extremely serious crimes does not violate the prohibition on inhuman and degrading treatment under Article 3.

Until relatively recently, the Secretary of State decided the minimum term to be served by a “lifer” – a defendant who subjected to a sentence of life imprisonment. This is now a matter for the sentencing judge whose jurisdiction is conferred by the 2003 Criminal Justice Act. Schedule 21 para 4 allows judges to order a whole life minimum term,  a jurisdiction of last resort in cases of exceptional criminality.

It was submitted in these conjoined appeals that this provision contravenes Article 3 of the European Convention of Human Rights. Not so, said the Court of Appeal, Criminal Division.

Background facts

Three out of five of the appellants had been convicted of murder and two of rape. In four of the cases whole life terms were ordered, and one of the cases of murder the minimum term was assessed at 30 years. All these cases had involved extreme violence perpetrated by dangerous individuals. One of the appellants had burgled four women, raping three of them. The other had been convicted of rape following a number of previous convictions; the judge imposed a life sentence and did not specify a minimum term.

The appellants all argued that a whole life order could never be appropriate; alternatively, that the sentence imposed had been inappropriate in their cases.

Appeals allowed in part.

The first section of the judgment concerns the compatibility of the whole life discretion with Article 3. The second part relates to the individual appeals.

The court’s reasoning

Every civilised country … embraces the principle that just punishment is appropriate for those convicted of criminal offences.

For this reason the Strasbourg Court has allowed for different answers to the question of what constitutes a just and proportionate punishment. Provided that the sentencing court has reflected on mitigation properly available to the defendant, a whole life order imposed as a matter of judicial discretion as to the appropriate level of punishment and deterrence following conviction for a crime of utmost seriousness does not constitute “inhuman or degrading punishment” for the purposes of Article 3. In Harkins v United Kingdom (9146/07) (2012) 55 EHRR 19 – a case involving

extradition to a jurisdiction where a life sentence might be imposed without the possibility of parole – the Court concluded that an Article 3 issue would only arise if it could be demonstrated that the continued incarceration could no longer be justified on any legitimate penological grounds, such as punishment, deterrence, public protection or rehabilitation. See our post on Harkins here.

The Court of Appeal itself had said in R v Bieber [2009] 1 WLR 223 that

… Schedule 21 of the 2003 Act proceeds on the premise that some crimes are so heinous that they justify imprisoning the offender for the rest of his life, however long that may be.

and Lord Hoffmann, commenting on the decision in Bieber, observed that

Article 3 was prescribing the minimum standard, not a norm. It must be open to individual states to decide for themselves what, if any, higher standards they would set for themselves.

Furthermore, the courts have emphasised “time without number” that the language of this provision is not prescriptive. It does not require a judge to impose the order if the interests of justice did not require it, Accordingly, the whole life order was reserved for the few exceptionally serious offences in which, after reflecting on all aggravation and mitigation, the judge was satisfied that just punishment required the imposition of a whole life order.

As for the individual appeals:-

There was not a “shred” of mitigating evidence in the case of O, who had planned and carried out his intention to make the death of his former partner a terrifying and agonising ordeal, and had then deliberately executed their daughter.  There was no reason to interfere with the sentence.

In the case of KS, a young man who had committed a “random” killing, the sentencing judge had been aware of his personality disorder. KS had revelled in his crime and there was no reason to interfere with the sentence.

DR was “a cold, depraved, calculated killer” who murdered his victim “to satisfy a sadistic sexual appetite”. The mutilation of the body of the victim was “shocking”. Taking all these features into account, together with a previous killing of which he had not been convicted, the judge had been driven to the conclusion that a starting point of 30 years imprisonment as the minimum term would not be appropriate. The order would be a whole life order. Nevertheless the Court of Appeal considered that the judge had not been at liberty increase the sentence as retribution and deterrence for the other murder of which DR had not been convicted. The whole life term would be quashed, but in view of the “exceptional brutality” of the crime the minimum term should be fixed at 40 years.

The court acknowledged the seriousness of the rape carried out by MR in the course of his burglaries. But these sexual assaults, though dreadful, had not been followed by murder, and the whole life order was reserved for the most exceptional cases. Although the statutory provision does not prevent the sentencing judge from making an order unless the defendant had been convicted of a murder, such an order would be very rare indeed. A minimum term of 25 years was imposed; it seemed highly improbable that MR would ever be safe for release.

Similarly in DS’s case, profoundly disturbing though the offence of rape had been, it was not of the extreme level of seriousness to justify a whole life order. The appropriate minimum term was 10 years. However, his release was most unlikely.

This judgment may not address the disquiet felt by some about the irreversibility of a life sentence, expressed by Laws LJ in R (Wellington) v Secretary of State for the Home Department [2007]

… 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. However he may use incarceration as time for amendment of life, his punishment is only exhausted by his last breath

But the positions taken in this debate, as in many others, are probably irreconcilable. No amount of judicial and philosophical soul searching will lead everybody to a compromise, and the human rights Convention is arguably the last place to find this solution. The Strasbourg Court has wisely held off, as this judgment quite emphatically reminds us.

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• “Murder most foul” – the right to life and the investigation of homicide
• “Whole life” sentences not in breach of the Convention
• Other posts on Article 3