Case Watch: European Court Ruling on Life Sentences Sets New Standard
By Marion Isobel
In “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to our work to advance human rights law around the world.
Should a life sentence actually mean a life sentence? Today the European Court of Human Rights answered that question. The Grand Chamber held that “whole life” sentences with no possibility of review and no prospect of release were inhuman and degrading treatment in breach of Article 3 of the European Convention on Human Rights.
The case was brought by three men in the United Kingdom who are currently serving life sentences for murder. Jeremy Bamber was convicted for killing his adoptive parents, his sister and her two young children in 1985, Peter Moore was convicted for killing four men in 1995, and Douglas Vinter was convicted for murdering his wife in 2008, having already been convicted of killing a work colleague in 1996.
Under UK law, the applicants were each given a “whole life tariff,” meaning that they could only be freed at the discretion of the Justice Secretary on compassionate grounds if they became terminally ill or seriously incapacitated. The applicants submitted that the lack of any regular review of their progress in prison amounted to inhuman or degrading treatment under Article 3, as they had essentially been condemned to die in prison without any chance of ever being released.
The European Court has long accepted that people can be imprisoned for life. States have a duty under the European Convention to take measures to protect the public from violent crime, and a life sentence in itself is not contrary to the convention. But the question here was whether a life sentence was still acceptable if there was no real possibility of a review or release—in other words, no hope.
In January last year, the lower chamber of the European Court ruled that life sentences without possibility of review or release did not amount to inhuman treatment. Today the Grand Chamber of the European Court reversed that decision by a majority of 16 to 1. The court held that because there was no dedicated review mechanism in the UK guaranteeing a review of those life sentences after a set period, it violated Article 3 of the ECHR.
The court was at pains to emphasize that this does not mean the applicants or others serving life sentences should be released. The right to have a sentence reviewed is quite different from a right to be released. The court stated, “Whether or not they should be released would depend, for example, on whether there were still legitimate penological grounds for their continued detention and whether they should continue to be detained on grounds of dangerousness.” The court also stressed that it is up to the UK authorities to decide how and when this review will occur.
This has done little to calm the outraged response in the UK.
The judgment has unleashed a storm of controversy, with renewed calls for the UK to pull out of the European Convention on Human Rights. Justice Secretary Chris Grayling reportedly said that it renewed his determination to limit the role of the European Court in the UK, remarking that the judgment would have the original authors of the convention “turning in their graves.” Prime Minister David Cameron weighed in, reportedly saying that he “profoundly disagrees with the court’s ruling,” and that he is a “strong supporter of whole-life tariffs.” Some newspapers have reported scathing criticisms of the judgment, and an opinion piece from the Guardian has foreshadowed a significant backlash from the public, warning that a majority of people in the UK “still support the death penalty for the most serious offences, decades after its abolition.”
People who have committed crimes serious enough to warrant life sentences are never going to attract much public sympathy, and politicians are loathe to be seen as soft on crime. But those commenting on this issue should take the time to reflect on the judgment as a whole. The 65 pages are a fascinating read, offering an in-depth analysis of how countries around the world deal with prison sentences for their most serious criminals.
The court combed through the laws of the EU member states in painstaking detail, and found that the UK’s system is quite uncommon. Nine EU countries do not even permit life sentences to be imposed by the courts. Of those that do, the vast majority have a dedicated mechanism for reviewing a life sentence after the prisoner has served a certain number of years. Only a handful of countries have a system like the UK, where there is no real prospect of review. The court held that all prisoners should be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved. The core reasoning underpinning the judgment is that prisoners—no matter how serious or terrible their crimes were—should not be deprived of all hope of release.
The issue of hope is an interesting one. The court delved into this further, saying that “if such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence.”
One argument that is often overlooked by proponents of whole life sentences is that detaining people with no hope of release can also create very real management problems inside prisons, with the prisoner having no incentives to cooperate or behave. One of the applicants in this case, Douglas Vinter, proved this point with disturbing clarity several years ago. While corresponding with the Guardian about what his sentence means to him, he reportedly wrote in a letter:
I am sitting in the segregation unit and have been for a number of weeks. I was involved in a stabbing (not fatal) on the wing. You see how I can admit in a letter to an offence as serious as that. It’s because the judge when he sentenced me to natural life gave me an invisible licence that said that I can breach any laws I want, no matter how serious, and the law can’t touch me. I’m above the law. I said to the governor, don’t waste any money on investigations, just give me another life sentence for my collection. They don’t mean anything anymore.
Nobody can argue that all people serving life sentence will always remain dangerous to society. And it’s possible that the UK system as it stands is creating prisoners who are more dangerous; people who have no incentive to cooperate, no prospect for atonement, and no hope for the future.
Although this judgment may be unpopular, I believe it is the right one from a legal, moral, and practical standpoint. Sentencing someone to life without prospect of review might satisfy a desire for punishment and retribution, but it also strikes to the heart of human dignity. It is inhuman and degrading treatment to lock someone up and throw away the key.
Until September 2017, Marion Isobel was a legal officer with the Open Society Justice Initiative.