Convicted murderers win Article 3 case against whole life sentences in Strasbourg
9 July 2013
Vinter and Others v. the United Kingdom (Grand Chamber: application nos. 66069/09, 130/10 and 3896/10) – read judgment
The Strasbourg Court has upheld three applicants’ complaint that their imprisonment for life amounted to inhuman and degrading treatment as they have no hope of release.
The following is a very brief summary of the judgment. A full analysis of the case will follow shortly.
Principal facts
The applicants, Douglas Gary Vinter, Jeremy Neville Bamber and Peter Howard Moore, are British nationals who were born in 1969, 1961 and 1946 respectively. All three men are currently serving sentences of life imprisonment for murder. Bamber murdered five members of his family brought the case along with serial killer Peter Moore and double murderer Douglas Vinter.
The applicants have been given whole life orders, meaning they cannot be released other than at the discretion of the Secretary of State on compassionate grounds (for example, if they are terminally ill or seriously incapacitated). They argued their sentences were “inhuman and degrading” and that being denied any prospect of release was a violation of Article 3 of the European Convention on Human Rights.
The Grand Chamber upheld their claim. They found, by 16 votes to 1, that for a life sentence to remain compatible with the European Convention on Human Rights there had to be both a possibility of release and a possibility of review. UK law concerning the justice secretary’s power to release a whole life prisoner was “unclear”, and, given this lack of clarity
and the absence of a dedicated review mechanism for whole life orders, the Court was not persuaded that, at the present time, the applicants’ life sentences were compatible with Article 3.
The Court fund the circumstances for compassionate release were “highly restrictive”,
Even assuming that they could be met by a prisoner serving a whole life order, the Court considers that the Chamber was correct to doubt whether compassionate release for the terminally ill or physically incapacitated could really be considered release at all, if all it meant was that a prisoner died at home or in a hospice rather behind prison walls.
The judges said it was up to the national authorities to decide when such a review should take place, but said it was “not persuaded” by the reasons adduced by the Government for the decision not to include a twenty-five year review in the current legislation on life sentences in England and Wales, the situation in the UK prior to 2003.
The Court did note that the applicants had not sought to argue that, in their individual cases, there are no longer any legitimate penological grounds for their continued detention.
The applicants have also accepted that, even if the requirements of punishment and deterrence were to be fulfilled, it would still be possible that they could continue to be detained on grounds of dangerousness.
Their victory under Article 3 in the Grand Chamber cannot therefore be understood as giving them the prospect of imminent release.
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The Court says “… issues relating to just and proportionate punishment are the subject of rational debate and civilised disagreement. Accordingly, Contracting States must be allowed a margin of appreciation …”, but this case again points up the dangers of the current ECHR system.
In 1950 the democratically elected governments signed up to Art 2 as “No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” In 1957 they started looking at whether they should outlaw the death penalty. After long discussion and negotiation, in 1983 they signed up to Protocol 6 to ban it in peace-time, and then in 2002 to Protocol 13 to ban it in war-time too. Or rather they agreed on each of those dates to open those Protocols for the governments individually to decide whether to consent to sign up.
As countries have moved away from the death penalty, a full life sentence has generally been seen as the alternative, at least at first. In UK legislation if one thing is expressly prohibited and its obvious alternative has no express treatment, then you are driven to take it that the alternative is not prohibited, and you cannot use another vague prohibition elsewhere to read in a prohibition of the alternative by the back door. So it would look as if death sentences are prohibited by ECHR but whole life sentences are not – until you wander into the idea that the ECtHR has been given a free hand to decide what human dignity requires, with the Articles and Protocols just forming background guidance.
This judgment recognises that there have been democratic debates within and among the governments about whole life sentences, and that the Council of Europe has gone as far as to issue recommendations and reports. But instead of following what happened on the death penalty, and leaving it to the Council to decide whether or not to take that process further and introduce a new Protocol barring whole life sentences, the Court has stumbled into thinking it can do the job itself (bearing in mind that it is then almost impossible for the member states to row back on that decision). It has done so on the back of the vague wording of Art 3 (supplemented by the even vaguer concept of human dignity, not mentioned in the Convention), and as the dissenting opinion points out it has not even bothered with the usual analysis of which part of Art 3 is in play and whether the treatment crosses the necessary threshold. But if Art 3 is strong enough to ground a prohibition of whole life sentences, then logically it must all the more so have been enough to bar the death penalty, leaving redundant the whole process of negotiating, agreeing and signing up to Protocols 6 and 13.
The lipservice paid to subsidiarity & margin of appreciation has worn extremely thin where it is trotted out in this judgment, and there is a distinct absence of proper analysis, legal or philosophical – the positions are set out extensively, but the justification for picking one over another is treated with cavalier brevity. The judgment quotes without criticism the principle from the UK case-law that there is “no reason, in principle, why a crime or crimes, if sufficiently heinous should not be regarded as deserving lifelong incarceration for purposes of pure punishment”, and then later examines German case-law based on the provisions on human dignity in their constitution, holding that dignity requires rehabilitation. But instead of analysing the relative strengths of these positions, and the crucial question of whether it is for national courts or ECtHR to decide on them, the Court merely tackles it with one sentence claiming “similar considerations must apply” in ECHR as in Germany because “the very essence of” ECHR “is respect for human dignity”. It then immediately moves on to an analysis of developing policy in Europe which assumes the Court can and should develop the policy further, ignoring the questions of whether all states must be in line with each other and of whether the development should be allowed to take its course and end up in a new Protocol or just stop at recommendations.
This all points not so much to an activist court as to a muddled court that has just lost its bearings and forgotten what it is meant to be doing. Democracy may not mean giving politicians a completely free hand, but it must be a problem for democracy when effective power to legislate is given to a court which gives up on the job of distinguishing its role from the role of elected representatives.
Why is this news? The courts decision is entirely predictable and there is a long line of case law supporting the basic premise that where a punishment is imposed indefinitely that there must be a review mechanism. The ‘if the Home Secretary feels like it’ was never going to be sufficient and quite frankly any sensible democracy would have provided a statutory review system even if the body continued to endorse the application of the whole of life punishment. We can now expect European sceptics to queue up and denounce this decision for their own anti-Europe agendas -sigh.
Presumably a crime of the gravity of murder is committed in contemplation of the prevailing prescribed sentence. These appellants were seeking to vary the sentence after the event. The consenting judgement is flawed in that specific.
actually how can it be inhuman and degrading treatment until the moment their request to be released is refused and even then it cannot be inhuman and degrading to tell them that their crimes means they cannot be released back into society?
It is the distortion of HR that the government (and the Great British Public = “lynch mob” [see above]) objects to – not HR per se!
I am appalled that I live in a country where our government sees human rights as a curse imposed upon them rather than something to be celebrated.
A poor decision by a court full of 3rd rate academics and obscure foreign ex-civil service judges. Pull out now – it is an activist political organisation. You do not have to read the tabloids to see how the original founders would be dismayed.There is always too much sentiment about offenders, never those they rob of life. Perhaps that is why there are more offender charities than victim support groups?
Lifers can opt for euthanasia in Belgium now…one wonders whether Falconer envisages introducing this option into his bill? Rather worrying, given the sheer volume of unsafe convictions in the UK…
http://www.mercatornet.com/careful/view/11252
Why would it be worrying if convicted murderers could “opt” for euthanasia? (A sort of self-imposed death-penalty: merely a more palatable iteration of the said sentence for the touchy-feely misguided Europeans and a little less costly for society as a whole in the long-run).
If you are not guilty – then don’t “opt” for it…..
What a great idea Lord Falconer – if it be so…..
“If you are not guilty – then don’t “opt” for it…..”
I’m going to assume for my own sanity that you are being sarcastic.
Concerns =unsafe convictions (huge number – flawed Appeals procedure)…incidence of depression ..plain coercion……total lack of scrutiny…
‘…The Court did note that the applicants had not sought to argue that, in their individual cases, there are no longer any legitimate penological grounds for their continued detention…’.
So what was the point in issuing the claim?
just greedy lawyers ?
Because there’s a matter of law that’s clearly in the public interest to be sorted.
I mean, like, duh.
The law was clear and well respected. It did not require “interference” from the unelected, and broadly unsupported ECtHR.
I do hope we get a clearly drafted Bill of Rights soon!
I think you mean in the interests of ‘prisoners’ not ‘public’.
The death penalty is gone. Now “life” sentences are arguably being undermined.
By definition a “life sentence” should be quite simply that! Even the use of the term “life sentence” to denote something other than; that an individual remains in custody for the remainder of their biological life, is disingenuous. The ECtHR does nothing to endear itself to the majority of the British public. (But as an unelected super-quango it doesn’t need to care a damn what the public think. It may make law (!) but it has little or no true democratic legitimacy with authority derived from the people to do so). No wonder our continued subscription to the ECHR is under question – a British Bill of Rights has something to commend it in the face of this sort of judgment.
If you doubt the premise of my argument – ask, how would the public vote in an in/out referendum concerning the ECHR?
Take drummer Lee Rigby for instance – unless the defendants are found criminally insane (which seems doubtful given there were two of them….and they spoke lucidly about their actions and motivations….) then a perfectly reasonable sentence (assuming a verdict of guilty…) would be the death penalty. As it stands – they may get a pseudo-“life”-sentence. If the judgment today has any future influence – these defendants will get review after review of their pseudo-“life” sentences (again, assuming they are guilty… “those blood red hands” conveniently put aside for the moment….) until in the end they get another chance (?) at living amongst us. How does this provide justice for the family and community? All those affected will remain on a roller-coaster of “will they – won’t they?” get released. Just as is the case for the family of James Bulger right now over the release “again” of one of the murderers of their son. This is a judgement with potentially deeply unpleasant and unacceptable consequences for the families of victims of the worst possible crimes.
The criminal (yes) justice (no) system appears to me to be increasingly distorted and divorced from common sense. We forget the victims and somehow wallow in pity over the rights of deeply dangerous criminals.
P Walker wrote:
/”If you doubt the premise of my argument – ask, how would the public vote in an in/out referendum concerning the ECHR?”/
The very reason we need human rights is to protect us from the lynch mob of public opinion you support.
Gosh yes! Why not do away with that inconvenient thing called democracy (= the lynch mob of “public opinion”)? A democratic mandate which can command the respect and support of the population is clearly wildly over-valued!
In fact, why not just have a dictator or a “people’s party” to run the show? That usually works out so much better! (Two legs good, four legs bad…..)
No wonder that contemptible “mob” of plebs you so despise (= the Great British Public) are starting to get sick and tired of the gibberish emanating from Europe!
This is incomprehensible gibberish. Democracy has since its earliest days relied on legal protections from overbearing and unfair government, and your attempt to belittle human rights as symbolic of dictatorship is both farcical, and historically ignorant.
As for “gibberish”, are you properly aware of the contents of the court’s ruling? It sounds quite sensible to me.
Of course democracy only exists as a stable entity because of the courts (=legal protections)!! (not).
Obviously and self-evidently – the courts (= legal protections) have never enforced laws which supported slavery, reinforced the exploitation of the working class, categorised women as mere property and never, ever did they impose the death penalty for minor law breaking! Clearly – my sceptical position concerning the courts and human rights is farcical and historically ignorant!
Obviously…. the courts have an unblemished record of respect for human rights and for passing humanitarian judgments!
OK – so historically inaccurate gibberish to one side – not all government is overbearing and unfair – that is just paranoid nonsense.
Democracy exists because of decent far thinking politicians, the rule of law and the will of the people. It might suit your world view to exclude the perspective of the “mob” (as another contributor characterised the British Public) but that is foolish and ignorant (if I may say!!).
The ECHR as it is currently interpreted does not enjoy widespread or even majority support. It is not a system of rules the British have warmed to or want to see continue. You don’t like it – but unless you find a more productive way to engage beyond the shrill – you may find it is swept away altogether.
There is no need to give whole-life tariff prisoners a “review” – despite the ruling of the ECtHR – this is not a ruling which was necessary or welcome.
The ruling may sound sensible to you – but I would suggest you could be an overpaid HR lawyer who benefits from the legal argy-bargy! Good for you.
Personally – I think this is an affront to British values and I hope the government gives it very short shrift.
9 July 2013
Dear Ms English
Thank you very much for your thought-provoking article regarding Human Rights of convicted prisoners given a “life sentence”.
The question I have to ask is how many prisoners who have killed are insane at the time of the killing? And how many convicted prisoners become insane when inside prison? And therein lies the rub – is any murderer by its very definition an aberration against normal social intercourse and therefore mad?
I await Mr Brady’s Appeal against decision to hold him against his will in a mental hospital rather than allow him back into prison.
I believe that this could well set the tone for Strasbourg.
With my grateful thanks for your excellent blogs.
Rosemary Cantwell