Whole life tariffs: Court of Appeal differs from, but does not defy, Strasbourg

The Court of Appeal has just given judgment in Attorney-General’s Reference No 69 of 2013 [2014] EWCA Crim 188. It has held that the whole-life-tariff regime laid down in UK primary legislation is compatible with Article 3 of the European Convention on Human Rights. In doing so, the Court of Appeal differs from the view set out in Vinter v UK by the Grand Chamber of the European Court of Human Rights. The difference between the two courts turns upon their understandings of s 30 of the Crime (Sentences) Act 1997, which authorises the Secretary of State to release life prisoners, including those serving whole-life tariffs, in “exceptional circumstances”. Here are the key paragraphs from the Court of Appeal’s judgment:

28.  The Grand Chamber therefore concluded that s.30 did not, because of the lack of certainty, provide an appropriate and adequate avenue of redress in the event an offender sought to show that his continued imprisonment was not justified. It concluded at paragraph 129:  “At the present time, it is unclear whether, in considering such an application for release under s.30 by a whole life prisoner, the Secretary of State would apply his existing, restrictive policy, as set out in the Prison Service Order, or would go beyond the apparently exhaustive terms of that Order by applying the Article 3 test set out in Bieber. Of course, any ministerial refusal to release would be amenable to judicial review and it could well be that, in the course of such proceedings, the legal position would come to be clarified, for example by the withdrawal and replacement of the Prison Service Order by the Secretary of State or its quashing by the courts. However, such possibilities are not sufficient to remedy the lack of clarity that exists at present as to the state of the applicable domestic law governing possible exceptional release of whole life prisoners.”

29.  We disagree. 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.

30.  As we understand the Grand Chamber’s view, it might have been thought that the fact that policy set out in the Lifer Manual has not been revised is of real consequence. However, as a matter of law, it is, in our view, of no consequence. It is important, therefore, that we make clear what the law of England and Wales is.

31.  First, the power of review under the section arises if there are exceptional circumstances. The offender subject to the whole life order is therefore required to demonstrate to the Secretary of State that although the whole life order was just punishment at the time the order was made, exceptional circumstances have since arisen. It is not necessary to specify what such circumstances are or specify criteria; the term “exceptional circumstances” is of itself sufficiently certain.

32.  Second, the Secretary of State must then consider whether such exceptional circumstances justify the release on compassionate grounds. The policy set out in the Lifer Manual is highly restrictive and purports to circumscribe the matters which will be considered by the Secretary of State. The Manual cannot restrict the duty of the Secretary of State to consider all circumstances relevant to release on compassionate grounds. He cannot fetter his discretion by taking into account only the matters set out in the Lifer Manual. In the passages in Hindley to which we have referred at paragraph 7 the duty of the Secretary of State was made clear; similarly the provisions of s.30 of the 1997 Act, require the Secretary of State to take in to account all exceptional circumstances relevant to the release of the prisoner on compassionate grounds.

33.  Third, the term “compassionate grounds” must be read, as the court made clear in R v Bieber, in a manner compatible with Article 3. They are not restricted to what is set  out in the Lifer Manual. It is a term with a wide meaning that can be elucidated, as is the way the common law develops, on a case by case basis.

34.  Fourth, the decision of the Secretary of State must be reasoned by reference to the circumstances of each case and is subject to scrutiny by way of judicial review.

35.  In our 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.

36.  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.

I will make just one brief comment about all of this. It is important, given the controversy presently surrounding the UK’s relationship with the ECtHR, to be clear about exactly how and why the Court of Appeal is differing from the Grand Chamber’s view. It is likely that this case will be reported as as “clash” between the two courts, or as the Court of Appeal having “defied” the ECtHR. [Update: since this post was published, The Times (£) has published a story under the headline: “Judges defy Europe to back whole-life jail terms for worst killers”.] That would, however, be to misrepresent what has happened here. The Court of Appeal has certainly disagreed with the Grand Chamber. But what the Court of Appeal has not done is to defy the Grand Chamber’s interpretation of Article 3 of the ECHR; nor has the English court rejected the European Court’s analysis of the implications of that right for the existence of whole-life tariffs from which there is no conceivable escape route.

The Court of Appeal has instead disagreed with the Grand Chamber’s understanding of UK law: whereas the latter held that it offered an escape route from whole-life tariffs insufficient to pass Article 3 muster, the Court of Appeal has now held that the s 30 escape route is adequate. This is so not least because the Secretary of State’s s 30 power to release in exceptional circumstances must – thanks to ss 3 and 6 of the Human Rights Act 1998 – be interpreted and used compatibly with Article 3 ECHR. This has the effect, in practice, of (to whatever extent is necessary) widening the s 30 escape route, so as secure consistency between Article 3 and the whole-life-tariff scheme. The discretion to release in exceptional circumstances is converted, by operation of the Human Rights Act, into an obligation to release when this is necessary to secure adherence to Article 3. Paradoxically, then, it is the Human Rights Act which has equipped a domestic court to uphold UK law in the face of an adverse Strasbourg judgment, by facilitating reliance upon the human-rights obligations that derive from that Act and which require the whole-life-tariff system to be operated compatibly with prisoners’ Convention rights.

The image that accompanies this post on the homepage is reproduced, courtesy of Anthony Majanlahti, under a Creative Commons Licence.

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