The European Court of Human Rights reverses its position on the UK’s life-sentencing regime.
Hutchinson v. the United Kingdom (application no. 57592/08) [2016] ECHR 021 (January 2017)
Summary
Four years after its decision in Vinter, the Grand Chamber of the European Court of Human Rights has revisited the UK’s life-sentencing regime, reversing its earlier position and holding that the regime does not contravene the European Convention on Human Rights.
Facts
In 1983, Hutchinson broke into a family home, murdered a husband and wife and their adult son, and repeatedly raped their 18-year-old daughter. He was sentenced to life imprisonment, and was later informed by the Secretary of State that he would serve a whole-life term.
Before the Grand Chamber of the European Court of Human Rights, Hutchinson alleged that his sentence violated Article 3 of the European Convention on Human Rights. This provides that ‘[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment’.
The central issue concerned the circumstances in which a prisoner serving a whole-life term might be released. Section 30(1) of the Crimes (Sentences) Act 1997 (UK) provided that ‘[t]he Secretary of State may at any time release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds’. The Ministry of Justice’s ‘Lifer Manual’ then provided that the Secretary of State will be satisfied that ‘exceptional circumstances’ exist when the following criteria are met:
- the prisoner is suffering from a terminal illness and death is likely to occur very shortly …, or the [prisoner] is bedridden or similarly incapacitated; and
- the risk of re-offending (particularly of a sexual or violent nature) is minimal; and
- further imprisonment would reduce the prisoner’s life expectancy; and
- there are adequate arrangements for the prisoner’s care and treatment outside prison; and
- early release will bring some significant benefit to the prisoner or his/her family.
This regime had previously been considered by the Grand Chamber in Vinter v United Kingdom [2016] III ECHR 317 (9 July 2013) (see the HRLC case note here). In that case, the Grand Chamber held that the regime contravened Article 3 because it did not give life prisoners any real hope of release and thus denied prisoners ‘a fundamental aspect of their humanity’ (concurring opinion of Judge Power-Forde). However, one year later, in R v McLoughlin [2014] 1 WLR 3964, the Court of Appeal of England and Wales held that Vinter had misconstrued the effect of the section 30(1) and the Lifer Manual.
In McLoughlin, the Court of Appeal held that although the Lifer Manual was ‘highly restrictive’ (at [11]) the Manual could not fetter the Secretary of State’s discretion under section 30(1) — in other words, the Manual was not an exhaustive statement of the circumstances in which a life prisoner might be released. Further, section 6(1) of the Human Rights Act 1998 (UK) required that the Secretary of State exercise his discretion in a manner compatible with Article 3 of the Convention. The phrase ‘exceptional circumstances’ in section 30(1) of the Crimes (Sentences) Act was, therefore, to be given a broad interpretation which encompassed matters going to rehabilitation. Accordingly, Article 3 of the Convention was not contravened.
In Hutchinson, the Grand Chamber was asked to reconsider the UK’s sentencing regime in light of McLoughlin.
Decision
The Grand Chamber held 14:3 that the UK’s sentencing regime did not contravene Article 3 of the Convention. In coming to this conclusion, the Grand Chamber did not depart from the principles enunciated in Vinter. Thus, under the European Convention on Human Rights, life prisoners still have a ‘right to hope’ that they will be released, and they ‘are entitled to know from the outset what they must do in order to be considered for release’ (at [44]). Further, rehabilitation remains the predominant justification for incarceration, and so it is not enough for a state to allow for the review of life sentences on compassionate grounds. However, the Grand Chamber considered that UK law complied with these principles for two principal reasons.
First, the Grand Chamber accepted that the Lifer Manual did not restrict the discretion of the Secretary of State, when reviewing life sentences, to consideration of humanitarian concerns. McLoughlin had made clear both that the Lifer Manual did not restrict the circumstances in which the Secretary of State might exercise the power of release and that progress toward rehabilitation can provide an occasion for the exercise of that power.
Second, the Grand Chamber considered that section 30(1) provided sufficiently clear guidance to life prisoners as to the circumstances under which they might be released. Although the Grand Chamber reiterated the need for ‘objective, pre-established criteria of which the prisoner had precise cognisance at the time of imposition of the life sentence’ (at [59]), it considered ‘that the concrete meaning of the terms used in section 30 will continue to be further fleshed out in practice’ (in accordance with the common law method). In addition, the fact that the exercise of the discretion in section 30 is subject to judicial review provided certainty and clarity.
Commentary
Hutchinson has affirmed the principle laid down in Vinter: life imprisonment without the possibility of parole (or with the possibility of parole limited to release on humanitarian grounds) constitutes inhumane or degrading treatment. The decision therefore provides an occasion to reflect on Australia’s sentencing laws, and to note — soberly — that this is another area in which Australia is out of step with international human rights norms.
Non-parole life sentences are available in all states and territories in Australia. In the absence of a bill of rights, it is unlikely that this raises any legal issues. However, the judgment in Hutchinson has reiterated international commitment to the principle that imprisonment should serve legitimate penal purposes, and that life imprisonment without the possibility of parole does not serve a legitimate penal purpose. The judgment may, therefore, encourage people in Australia to reassess the desirability of whole-life sentences.
Turning to Europe, we can see that a striking feature of this case is how easily the Grand Chamber appeared to resile from its position in Vinter, decided less than four years before. The Court did not admit that its approach to the relevant Convention rights had changed. Rather, it suggested that UK law had changed — or had, at least, been clarified — after McLoughlin. This is doubtful.
McLoughlin did not lay down any new principles of law; it merely restated general principles of administrative law — namely, that a decision-maker upon whom a discretionary power is conferred by statute cannot fetter that discretion in a manner incompatible with the grant of power. The sections of the Human Rights Act requiring that discretionary powers be exercised in accordance with Convention rights were in force at the time of decision in Vinter. Further, whatever the legal position, there had been no change in practice in the release of life prisoners since Vinter (that is, none had been released in the intervening period).
Judge Pinto de Albuquerque delivered a scathing dissent, in which he rejected ‘the majority’s ingenious effort to reconcile the letter and spirit of Vinter with McLoughlin’ (at [1]) and warned of ‘the seismic consequences for the European human-rights protection system’ of adopting an approach where ‘the impact of national law on the Convention should be maximised, whereas the impact of the Convention on the domestic law should be minimised, if not downright rejected’ (at [38], [40]). The majority’s decision, he suggested, owed much to the ‘current political environment, which shows an increasing hostility to the Court’ (at [38]). If Pinto is right, we should expect further conservative decisions from the Court in the future.
Marcus Roberts is an Editor of the Melbourne University Law Review and a Research Assistant at Melbourne Law School