When does life mean life?

28 February 2011 by

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 BamberPeter 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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech game birds Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Harkins and Edwards Health HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holocaust Home Office Home Office v Tariq Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity India Indonesia Infrastructure Planning Committee Inhuman and degrading treatment injunction Inquest Inquests insurance insurmountable obstacles intelligence services act intercept evidence interception interim remedies international international criminal court international law international treaty obligations internet internet service providers internship inuit investigation investigative duty Iran Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Kerry McCarthy Kettling Kings College koran burning Labour Lady Hale LASPO Law Pod UK Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberty library closures Libya licence conditions licence to shoot life sentence lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome London Legal Walk London Probation Trust Lord Bingham Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Taylor luftur rahman MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation Maria Gallastegui marriage material support maternity pay Matthew Woods Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical negligence medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental illness MGN v UK michael gove Midwives migrant crisis military Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder music Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience news new Supreme Court President NHS NHS Risk Register Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London Offensive Speech oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden paramountcy principle parental rights parenthood parliamentary expenses parliamentary expenses scandal Parliament square parole board pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution Personal Injury personality rights perversity PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning system plebgate POCA podcast points Poland Police police investigations police liability police powers police state police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope portal possession proceedings post office power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radicalisation Radmacher Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg sumption super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: