Do whole life sentences amount to torture, inhuman or degrading treatment or punishment?

Vinter & Ors v United Kingdom [2012] ECHR 61 (17 January 2012)

Summary

The applicants, Douglas Vinter, Jeremy Bamber and Peter Moore, are currently serving life sentences for murder in the United Kingdom. Each has received a whole life order meaning that they will never be released from prison, other than at the discretion of the Secretary of State on compassionate grounds (such as terminal illness or serious disability). The three appealed their sentences to the European Court of Human Rights alleging violations of articles 3 (prohibition on torture, inhuman and degrading treatment and punishment), 5(4) (the right to speedy court proceedings to determine the lawfulness of detention), 6 (the right to a fair trial) and 7 (the prohibition of retrospective criminalisation) of the Convention for the Protection of Human rights and Fundamental Freedoms. The Court rejected each of these claims.

Facts

The applicants were each sentenced to life imprisonment for murder. Vinter stabbed his wife to death in 2008, whilst on parole for a previous conviction for murder. Bamber was convicted in 1986 for shooting and killing his adopted sister and her two children, allegedly for financial gain.  Moore was convicted in 1996 of stabbing to death four men, allegedly for his own sexual gratification.

Sentencing practices in force when Bamber and Moore were sentenced conferred upon the Secretary of State the discretion to impose a whole life tariff, to be reviewed after twenty-five years. With the passage of the Criminal Justice Act 2003 (UK) the recipients of whole life tariffs could apply for High Court review. Both Bamber and Moore made such applications and had their whole life tariffs confirmed. Subsequent applications for appeal to the House of Lords (as it then was) were refused.

Vinter was sentenced according to the principles set out in Schedule 1 to the Criminal Justice Act for determining the minimum term of a mandatory life sentence. Confirming the sentence which Vinter had received at trial, the Court of Appeal based its judgment on the principle that, bearing in mind the goals of punishment and deterrence, a whole life order is appropriate for an individual convicted of murder twice.

The applicants were joined in a case before the ECHR, alleging in particular a breach of article 3 of the Convention which prohibits torture and inhuman and degrading treatment or punishment. Further claims were made under articles 5(4) (the right to speedy court proceedings to determine the lawfulness of detention), 6 (the right to a fair trial) and 7 (the prohibition of retrospective criminalisation).

Decision

The case centred upon the applicants' claim under article 3 of the Convention. The Court began by examining the legislation of England and Wales, noting that the release of prisoners who have been given whole life orders is contingent on the existence of compassionate grounds and that such releases are rare. The Court considered English case law from before and after the Criminal Justice Act came into force, noting in particular the House of Lords' contention that the European Court of Human Rights:

would not regard even an irreducible life sentence…as violating article 3 unless and until the time comes when further imprisonment would no longer be justified on any ground – whether for reasons of punishment, deterrence or public protection (see R(Wellington) v Secretary of State for the Home Department [2008] UKHL 72.

The Court examined international and comparative legal materials, including texts of the Council of Europe, the Rome Statute of the International Criminal Court and a European Union decision relating to the execution of arrest warrants. The theme to these materials was that a life sentence ought never to be final, conclusive and not subject to some degree of review to determine whether it ought to be reduced.  The Court noted in this context that within the European Union, only the criminal justice systems of the Netherlands and England and Wales provide for irreducible life sentences. With this in mind, the Court then proceeded to examine the laws of Germany, Canada, South Africa, the United States of America, Belize, Mauritius, Namibia, Hong Kong and New Zealand, noting in each safeguards against "gross disproportionality" in sentencing.

The Courts' analysis of international materials revealed a general requirement that a sentence should not be grossly disproportionate and that this principle is applicable to three categories of life sentence:

• a life sentence with eligibility for release after a minimum period has been served;
• a discretionary life sentence of life imprisonment without the possibility of parole; and
• a mandatory sentence of life imprisonment without the possibility of parole.

The Court considered the first of these to be wholly unproblematic. With respect to the second, the Court agreed with the House of Lords in Wellington that an article 3 issue will only arise when the applicant's imprisonment is not longer justifiable on penological grounds and the sentence is practically (de facto) and legally (de iure) irreducible. As regards mandatory life sentences without the possibility of parole, the Court considered that these would not be per se incompatible with the Convention, however such sentences would be more likely to be grossly disproportionate than other types of life sentence, particularly if mitigating factors were not considered. On this basis, the Court concluded that an article 3 issue would arise with respect to a mandatory life sentence in the same circumstances as those applicable to discretionary life sentences.

In this case, the Court observed that the applicants had not sought to argue gross disproportionality and had not demonstrated that their continued incarceration served no legitimate penological purpose. The Court noted that Vinter had only served three years of his sentence and so his continued incarceration continued to serve a legitimate purpose. With respect to Bamber and Moore, the Court highlighted that each was "effectively re-sentenced in 2009" upon application for High Court review of their sentences. Importantly, the High Court had found that "the requirements of punishment and deterrence could only be satisfied by a whole life order" and the European Court was prepared to accept this judgment. Consequently, the Court found no violation of article 3 of the Convention.

The Court also rejected the alleged breaches of articles 5(4) and 7, expressing its satisfaction that "the lawfulness of the applicants' detention required under article 5(4) was incorporated in the whole life orders", and determining the applicants' complaints under article 7 to be "manifestly ill-founded." The Court rejected the alleged breach of article 6 without discussion.

Relevance to the Victorian Charter

Section 10 of the Human Rights and Responsibilities Act 2006 (Vic) contains a prohibition on torture and cruel, inhuman or degrading punishment or treatment which mirrors that found in the Convention.  Under s11(1) of the Sentencing Act 1991 (Vic) a court which sentences an offender to be imprisoned for the term of his or her natural life must fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate. This legislation effectively permits non-discretionary whole life orders, where a sentencing court chooses not to specify a non-parole period.

Though s13 of the Sentencing Act outlines the circumstances in which the Court of Appeal, County Court or Supreme Court may fix a non-parole period where a trial court has chosen not to, the possibility nevertheless remains that a Victorian prisoner may be subjected in essence to a whole life sentence without provision for a discretionary release on compassionate grounds, as contained in the equivalent United Kingdom legislation. With this in mind, the Vinter case may provide guidance on the interaction between Victorian human rights and sentencing legislation, particularly in relation to the circumstances in which sentencing may impinge upon prisoners' human rights.

The decision can be found online at: http://www.bailii.org/eu/cases/ECHR/2012/61.html

Elliot Luke is a Lawyer and Duncan Travis is a Partner at Allens Arthur Robinson