Strasbourg law does not prevent the imposition of whole life orders for “heinous” crimes
18 February 2014
McLoughlin, R v  EWCA Crim 188 (18 February 2014) – read judgment
The Court of Appeal has today ruled that judges can continue to impose whole life orders in accordance with Schedule 21 of the Criminal Justice Act 2003.
On the facts of two individual cases, the Court increased the sentence of Ian McLaughlin to one of a whole life term for the murder of Graham Buck. The Court dismissed an appeal by Lee Newell against his whole life order for the murder of Subhan Anwar.
The following is based on the Court of Appeal’s press summary.
At the outset the Lord Chief Justice (Lord Thomas) explained that, as a result of the decision of the 2012 Strasbourg case of Vinter v UK, a specially constituted court was set up to hear three applications for permission to appeal their whole life terms (Mark Bridger, Matthew Thomas and Lee Newell) and a reference by the Attorney General under s36 of the Criminal Justice Act (CJA) 1986 in the case of Ian McLoughlin. Mark Bridger abandoned his application prior to the hearing and at the start of the hearing it was confirmed that Matthew Thomas had not received a whole life term. The hearing therefore proceeded as an appeal by Newell and a reference by the Attorney General in the case of McLoughlin. (paras 1– 4)
The arguments of the parties
The question before the Court was whether the statutory regime established by Parliament was compatible with Article 3.
The AG and the Crown contended that the Grand Chamber’s decision in Vintner did not hold that the statutory regime relating to the imposition of a whole life order under s.269 of the CJA 2003 was incompatible with Article 3. That Chamber had drawn a clear distinction between the regime which governed the imposition of the sentence and the regime for the reducibility of that sentence through review and release. The imposition of a whole life order was just punishment and was compatible with the Convention.
The Grand Chamber they said was mistaken in concluding that the statutory regime for the reducibility of the sentence by review and release was insufficiently certain; and that uncertainty gave rise to a breach of Article 3. As a matter of analysis of the law of England and Wales, the Human Rights Act required the Secretary of State to act compatibly with Convention Rights. When the Secretary of State considered review and release, the Secretary of State had to exercise his powers under s.30 of the 1997 Act compatibly with Convention Rights. The policy set out in the Lifer Manual (to which we referred at paragraph 11) did not represent the whole of the circumstances in which the power of release might be exercised.
The Court discussed this in paragraphs 14 – 36 by reference to three questions:
a) Can a court impose a whole life order as just punishment?
The answer was yes.
Lord Thomas, on behalf of the Court, said:
Although there may be debate in a democratic society as to whether a judge should have the power to make a whole life order, in our view, it is evident, as reflected in Schedule 21, that there are some crimes that are so heinous that Parliament was entitled to proscribe, compatibly with the Convention, that the requirements of just punishment encompass passing a sentence which includes a whole life order. (para 15)
He went on to say:
We do not read the judgment of the Grand Chamber in Vinter as in any way casting doubt on the fact that there are crimes that are so heinous that just punishment may require imprisonment for life. …. In Vinter the Grand Chamber accepted that, because what constitutes a just and proportionate punishment is the subject of debate and disagreement, States have a margin of appreciation. Under our constitution it is for Parliament to decide whether there are such crimes and to set the framework under which the judge decides in an individual case whether a whole life order is the just punishment.
We therefore conclude that no specific passage in the judgment nor the judgment read as a whole in any way seek to impugn the provisions of the CJA 2003 (as enacted by Parliament) which entitle a judge to make at the time of sentence a whole life order as a sentence reflecting just punishment. (paras 17 – 18)
b) Does the regime which provides for reducibility have to be in place at the time the whole life order is imposed?
The European Court of Human Rights had decided in 2008 and again in Vinter that a sentence of life imprisonment which was irreducible – that is to say gave the offender no possibility or hope or prospect of release – was incompatible with Article 3.
The Court of Appeal proceeded on the assumption that it should adopt that interpretation as if the law of England and Wales provided for reducibility, the question could be dealt with in this way. (paras 19 – 24)
c) Does the regime established by Parliament provide for reducibility?
The answer to the question was: Yes
The Court went on to consider whether s. 30 of the Crime (Sentences) Act 1997 is a regime for reducibility which is in fact compliant with Article 3 (paras 25 – 36).
The Grand Chamber had reached a conclusion in Vinter that the law of England and Wales did not clearly provide for reducibility as the conditions set out in the lifer manual was too restrictive. The court held that the Grand Chamber was wrong on this point. The law of England and Wales clearly provided for such a regime through s.30 of the Crime (Sentences) Act 1997 and the lifer manual could not restrict the power under s.30 given to the Secretary of State by Parliament. Lord Thomas said:
In our view, the domestic law of England and Wales is clear as to “possible exceptional release of whole life prisoners”. As is set out in R v Bieber the Secretary of State is bound to exercise his power under s.30 of the 1997 Act in a manner compatible with principles of domestic administrative law and with Article 3. (para 29)
He then went on to conclude that in the Court’s judgment, the law of England and Wales therefore does provide to an offender “hope” or the “possibility” of release in exceptional circumstances which render the just punishment originally imposed no longer justifiable.
It is entirely consistent with the rule of law that such requests are considered on an individual basis against the criteria that circumstances have exceptionally changed so as to render the original punishment which was justifiable no longer justifiable. We find it difficult to specify in advance what such circumstances might be, given that the heinous nature of the original crime justly required punishment by imprisonment for life. But circumstances can and do change in exceptional cases. The interpretation of s.30 we have set out provides for that possibility and hence gives to each such prisoner the possibility of exceptional release. (paras 35 – 36)
Judges should continue to apply the statutory scheme in the CJA 2003 and in exceptional cases, likely to be rare, impose whole life orders in accordance with Schedule 21.
The reference by the Attorney General in the case of Ian McLoughlin
On 21 October 2013 McLoughlin pleaded guilty to murder and to robbery committed whilst he was on day release from prison. He had a previous history of serious offending, including previous convictions for manslaughter and murder. McLoughlin was sentenced by Mr Justice Sweeney at the Central Criminal Court to life imprisonment for the offence of murder. A sentence of eight years imprisonment concurrent with that sentence was passed for the robbery. The judge fixed a minimum period of 40 years under s.269 (2) of the CJA 2003. (para 39 – 42)
In deciding whether to impose a whole life order the judge referred to the decision in Vinter and said that it was incumbent on him to pass a sentence which was compliant with the Convention if he could. It was not appropriate to impose a whole life term, but even for a man of 55 years of age, “the minimum term of years must be a very long one indeed” (para 45)
In Lord Thomas’s view, the judge had been in error, and that the Court of Appeal had therefore to consider the matter afresh.
In our judgment this was a case where the seriousness was exceptionally high and just punishment required a whole life order. A fixed minimum term of 40 years was for that reason unduly lenient. We therefore quash the minimum term of 40 years and make a whole life order. (47 – 50)
The appeal by Lee Newell
On 19 September 2013 Mr Justice Jeremy Baker, sitting at the Crown Court at Leamington Spa, sentenced Lee Newell, to imprisonment for life with a whole life order following his conviction for the murder of Subhan Anwar at HMP Long Lartin. Newell was already serving a life sentence for murder at the time of Anwar’s murder. (para 51 -52)
Lord Thomas observed that because this was a second murder, the starting point would normally be a whole life order.
The murder was premeditated and involved the use of an improvised weapon. It occurred in prison whilst Newell continued to serve a life sentence. The deceased took a significant time to die. There was no mitigation. This was a murder where the seriousness of the offence was exceptionally high. The judge was right in making a whole life order. This appeal is accordingly dismissed.(para 58)
Lord Thomas, on behalf of Court, concluded:
“These two cases are exceptional and rare cases of second murders committed by persons serving the custodial part of a life sentence. The making of a whole life order requires detailed consideration of the individual circumstances of each case. It is likely to be rare that the circumstances will be such that a whole life order is required. Our decision on each case turns on its specific facts and cannot be seen as a guide to any similar case.” (para 59)
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What effect will this decision have on IPP prisoners who are not classed as whole life but in reality are serving life sentences with no release date. They are in a limbo land with no release date available to them, The prison sentence can no longer be handed out as it is inhumane. There appears to be no concern over these prisoners who were on tariffs of 2 years in many cases and are still there 6 or 7 years later. It is quite shocking to be a final year law student and realize that all the academics you speak to have never heard of the sentence. This is totally unacceptable, and nothing is being done about it, Those prisoners with poor academic skills are not put on the courses that will facilitate their release as it is seen as a waste of time, yet without completing the courses they can never be released. Imagine the mental anguish of these prisoners, and there are thousands of them and then ask yourself if we are any more civilized than any other oppressive state.
All of this sits extermely uncomfortably. (1) It cannot be sensibly said that Strasbourg got it wrong with regard to the Prison Order. Quite the reverse. Their reading of it is perfectly understandable. The relevant Order is even headed “Compassionate release on medical grounds.” This plainly shows what section 30 was really intended for and how it has been interpreted and applied by government. (2) to interpret “compassionate grounds” as including grounds based on the lack of continuing penological grounds for on-going detention is a far from natural reading of the word “compassionate” (3) the Prison Order cannot be allowed to remain in its present form and, in truth, section 30 ought to be amended.
Even if the Supreme Court agrees to an appeal, I don’t really expect to see that court disagreeing with the Court of Appeal. (As you say, an appeal by McLoughlin would surely be a non-starter). As and when the matter returns to Strasbourg, the story may well be different but I doubt that by such time the present Prison Order will be there. It will have been redrafted entirely. As another commentator said – “such is politics”
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