When does life mean life?

28 February 2011 by Adam Wagner

Peter Sutcliffe

Three convicted murderers are challenging their sentences in the European Court of Human Rights. They claim that the rare “whole life” tariffs which have been imposed in their cases is contrary to their human rights.

Jeremy Bamber, Peter Moore and Douglas Vinter were all convicted for murder and therefore sentenced to life imprisonment, which is the mandatory sentence for the crime. It has been so since death penalty was abolished in 1969.  However, as is well-known, life does not always mean life, and when a judge passes sentence he also sets a tariff, which is the number of years before which the prisoner will be eligible to be considered for early release on licence. The rules have already been altered to make them compatible with fair trial rights. Will they have to be altered again?

The “whole life” tariff is only set in a limited number of cases. As stated in the European Court of Human Rights’s statement of facts:

Since the abolition of the death penalty in England and Wales, the sentence for murder has been a mandatory sentence of life imprisonment. When such a sentence is imposed, it is the current practice, in the majority of cases, for the trial judge to set a minimum term of imprisonment which must be served before the prisoner is eligible for release on licence. Exceptionally, however, “a whole life order” may be imposed by the trial judge instead of a minimum term.

That is not the end of the story. Even a whole life tariff does not necessarily mean “whole life”. In fact, the secretary of state has a discretion to release even a prisoner under whole life tariff under s.30(1) of the Crime (Sentences) Act 1997 if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds.

For example, that is what the secretary of state recently refused to do in the case of Peter Coonan (formerly Sutcliffe), the so-called “Yorkshire Ripper” who was convicted for killing 13 women in 1981 and attacked several others. In that case, in 1996 the Home Secretary asked for a recommendation from the Lord Chief Justice, Lord Bingham, as to the minimum tariff. He responded:

I have no doubt that this is one of the rare cases where the offences were so heinous and the perpetrator so dangerous that life should mean life.

Despite this statement, and taking account Sutcliffe’s disturbed mental state, he recommended a 35-year minimum tariff. But ultimately no tariff was set. It was for the Home Secretary to decide, not the trial judge.

But the law then changed in 2003 after the House of Lords (now the Supreme Court) held that it should be judges, not the Home Secretary, who decide the length of the tariff. It held that for a sentence of a substantial term of imprisonment to be set by the executive constitutes a breach of article 6 fair trial rights. As Lord Bingham held:

The European Court was right to describe the complete functional separation of the judiciary from the executive as “fundamental”, since the rule of law depends on it.

Therefore,

it must now be held that the Home Secretary should play no part in fixing the tariff of a convicted murderer, even if he does no more than confirm what the judges have recommended

Despite this point of principle, it is still the Home Secretary’s decision, in whole life tariff cases, as to whether they can be released. The discretion will only be exercised on compassionate grounds when the prisoner is terminally ill or seriously incapacitated, as was the reasoning behind the controversial release of the Lockerbie bomber.

This system has recently been held by the court of appeal to be compatible with fair trial rights, but the House of Lords has itself expressed doubts.

The current claim before the European court is that the imposition of whole life orders means their sentences are, in effect, irreducible and in violation of Article 3 of the Convention (protection against inhuman and degrading punishment). They maintain that, once imposed, a whole life order is not subject to review by the courts and the Secretary of State’s discretion to release on compassionate grounds, when a prisoner is terminally ill or incapacitated, is not sufficient to make that sentence de facto reducible.

As the Law and Lawyers blog suggests, this case would be an early Christmas gift for detractors of the Strasbourg court if it rules in their favour (and, indeed, if the court rules before then):

It would be hard to think of any issue more likely to bring the present U.K. government on to a collision course with Strasbourg and there is little doubt that, for the very worst murder cases, the British public would side with the government in opposition to any decision to rule out the whole life tariff. Such a schism might well prove to be injurious to longer term human rights protection in the U.K.

The court may find that the system is generally fair, and that the secretary of state can have some role as long as it is reviewable by a court. However, it may equally extend the principle already approved by the House of Lords in 2003, that the executive should have no role in setting long terms of imprisonment. If it does the latter, given that those affected are amongst society’s most hated criminals, this could be a very unpopular decision indeed.

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