Case Watch: ECHR and UK Find a Compromise on “Whole Life” Sentences

Should a life sentence actually mean a life sentence, without a chance of ever getting out?

On February 3, the European Court of Human Rights (ECHR) made a U-turn on the issue of whole life sentences in the United Kingdom, after accepting the UK Court of Appeal’s explanation clarifying the national law. This case is an interesting example of constructive dialogue between the ECHR and a national court over the course of several cases, resulting in a compromise that should satisfy both sides. 

But first, some background to this divisive issue. In July 2013, the European court unleashed a storm of controversy in the UK by holding that “whole life” sentences with no real possibility for review and release were inhuman and degrading treatment under article 3 of the European Convention on Human Rights. The case was Vinter v UK, and it caused a significant backlash in the UK, with renewed calls for the UK to pull out of the convention all together.

I wrote a blog piece at the time on Vinter, arguing that the court made the right decision and that yes, it should be considered to be inhuman and degrading treatment to lock someone up and throw away the key without any real chance of review. A crucial fact that is easily overlooked is that the European court is not requiring the release of prisoners but only that there must be a clear system in place to review their sentences. Imprisoning someone for life does not breach the convention, but imprisoning someone for life without a chance of review leaves prisoners without any prospects for atonement or rehabilitation; in a word, without hope. This strikes to the heart of human dignity, to deprive a person of freedom without providing a chance to regain that freedom.

And now, eighteen months of stormy weather later, the ECHR and the UK Court of Appeal appear to have negotiated a compromise, with the case of Hutchinson v UK.

The new case was brought by Arthur Hutchinson, a triple-murderer and rapist who was sentenced to life imprisonment in 1983 and is currently detained in Her Majesty’s Prison Durham.

Under UK law, Hutchinson and other “whole lifers” can only be released from prison if the Justice Secretary is satisfied that exceptional circumstances exist which justify release on compassionate grounds. Criteria for exercising this discretion are set out in a policy issued by the Secretary of State known as the “Lifer Manual.” The Lifer Manual is extremely restrictive, stating that compassionate grounds only apply in two narrow situations: if the prisoner has a terminal illness and death is likely to occur very shortly; or if they are bedridden or similarly incapacitated. In blunt terms, under the policy in the Lifer Manual, a prisoner can only apply for compassionate release in order to die at home or in a hospice rather than behind prison walls—hardly a “release” at all.

What wasn’t clear until now was whether the Justice Secretary was bound to apply the restrictive policy in the Lifer Manual or if he was allowed to consider other exceptional circumstances that could arise. And this is where the UK Court of Appeal stepped in to offer a compromise by way of clarification.

In February 2014, the UK Court of Appeal released a judgment directly addressing the concerns of the European Court and clarifying that the Justice Secretary is not limited to the restrictive policy in the Lifer Manual. Instead, the Justice Secretary must take into account any and all exceptional circumstances that could be relevant to the release of a prisoner on compassionate grounds. The Lifer Manual cannot fetter this wide discretion. The UK court stated that it would be difficult to specify in advance what kind of circumstances could be considered exceptional, and that the interpretation of “compassionate grounds” would need to be developed on a case-by-case basis.

The ECHR examined the judgment of the UK Court of Appeal closely, and quoted it heavily in its judgment in Hutchinson. The European judges appeared to appreciate the fact that the UK Court of Appeal had specifically addressed their doubts over the clarity of the UK law and set out an unequivocal statement of the legal position. In the end, the European court accepted that the Justice Secretary’s discretion to review whole life sentences, as clarified by the UK Court of Appeal, is compliant with Article 3 of the European Convention as it gives prisoners hope of the possibility of release in exceptional circumstances.

So after 18 months, two ECHR decisions, and one UK Court of Appeal Decision, a compromise has been reached. The UK law on whole life sentences has been clarified and, through that clarification, has avoiding being characterised as inhuman and degrading treatment. And the European court listened carefully when a UK court spoke and accepted its interpretation of national law. Even if it doesn’t succeed in totally calming the waters between the UK and the ECHR, it at least demonstrates the power of dialogue and avoided whipping up more storms.