Life without parole and the prohibition on inhuman or degrading treatment

Oakes and Others v R [2012] EWCACrim 2434 (21 November 2012)

Summary

The England and Wales Court of Appeal has held that the discretionary imposition of life sentences with no possibility of parole does not necessarily violate the European Convention on Human Rights’ prohibition on inhuman and degrading treatment or punishment. The decision comes a week before the Grand Chamber of the European Court of Human Rights hears a case addressing similar questions.

Facts and relevant law

The five appellants were all men convicted of aggravated murder or rape between the years 2004–2012. Four of the men were sentenced to life imprisonment without the possibility of parole, while the fifth was sentenced to life with the possibility of release after 30 years.

In England and Wales, murder carries a mandatory life sentence while sexual crimes may attract a life sentence depending upon their gravity. When imposing a life sentence, the judge will specify a minimum period of imprisonment to be served before the prisoner will be eligible for release. For particularly serious crimes where the convicted person is at least 21 years old, this minimum period may constitute a “whole life order”, meaning that that the prisoner will never be eligible for parole. Release may occur on compassionate grounds, at the Secretary of State for Justice’s discretion, when the prisoner is either terminally ill or seriously incapacitated. According to schedule 21 of the Criminal Justice Act 2003, judges may use a whole life minimum term as a starting point for multiple murders involving: premeditation; abduction; sexual or sadistic conduct; the killing of a child with sadistic or sexual aims; or political, religious or ideological motivations.

The five appellants sought to challenge the minimum term ordered by the trial judge in their respective cases. One of the appellants submitted that schedule 21, by authorising the imposition of a whole life minimum term, violates the prohibition of inhuman and degrading treatment and punishment in article 3 of the Convention.

Decision

The Appeal Court affirmed its previous decision in R v Bieber [2009] 1 WLR 223 and the House of Lords’ decision in R (Wellington) v Home Secretary [2009] 1 AC 335.In coming to its decision, the Appeal Court examined relevant ECHR jurisprudence.

In Kafkaris v Cyprus [2008] ECHR 21906/04, the ECHR held that “irreducible” life sentences may violate article 3 of the Convention. The Court in Beiber interpreted Kafkaris to mean that “irreducible” life sentences do not violate article 3 provided that their imposition can be justified on the grounds of just punishment or deterrence. The Appeal Court further found that whole-life orders were not “irreducible” sentences because of the possibility of compassionate release by the Secretary of State.

In the 2012 decision of Vinter and Others v UK, ECHR 66069/09, 131/10, 3896/10, the ECHR’s Fourth Section held that a life sentence may be inhumane and degrading if it can be shown that:

• the prisoner’s continuing detention cannot be justified on legitimate penal grounds such as just punishment, deterrence or protection of the public, and
• there is no possibility of reviewing and reducing the sentence.

The majority did not rule on whether there the life orders imposed were “irreducible” as they found that that all sentences under consideration were still justifiable on “penological grounds”.

Three of the seven judges in Vinter dissented. They argued that the whole-life orders in the UK breached article 3 as the limited possibility of compassionate release did not “remove the hopelessness inherent in a sentence of life imprisonment from which, … there is no possibility whatsoever of release while the prisoner is still well enough to have any sort of life outside prison.”

The case has since been referred to the Grand Chamber.

Relying upon the above decisions, the Appeal Court in Oakes held that, if, after a consideration of the aggravating and mitigating factors, a court found the seriousness of the crime warranted a whole life order, this did not contravene article 3. The Appeal Court stressed that whole life orders are made only in exceptional circumstances for the gravest of crimes, as provided for in schedule 21 of the Criminal Justice Act. As schedule 21 merely permits rather than mandates a whole life order, and because such permission is generally reserved for the most serious of cases, schedule 21 does not contravene article 3 of the Convention.

Although finding no contravention of the Convention, the Appeal Court proceeded to review the five appellants’ sentences against the schedule 21 guidelines. The court substituted three of the life orders with 40, 25 and 10 year minimum sentences, and maintained the life and 30 year minimum sentence of the two other appellants.

Commentary

It is disappointing that the Appeal Court in Oakes did not consider whether the Secretary of State’s power to grant compassionate release is sufficient to classify whole life orders as “reducible”. No in-depth consideration was given to when and how compassionate relief provisions could be applied to reduce a prisoner’s life term, the extent to which these powers render a life sentence “reducible” or the impact such reducibility (or lack thereof) has on compatibility with article 3 of the Convention. While acknowledging that life without parole may constitute inhuman or degrading treatment at a future point in time when a prisoner’s continued detention can no longer be justified on “penalogical grounds”, the Appeal Court did not then take the next step and consider whether there is an adequate domestic mechanism in place to reduce sentences when reduction is appropriate.

Under the previous sentencing system whereby the Secretary of State imposed whole-life orders, an automatic review of such sentences was undertaken after 25 years. In this review, the Secretary of State would also consider if the prisoner’s progress while in jail justified a reduction of the term. This mandatory review mechanism was removed when the responsibility for granting of whole-life orders was moved from the executive to the judiciary.

This decision comes a week before the Grand Chamber of the ECHR begins its consideration of Vinter. Hopefully the ECHR will address this question of the “irreducibility” of whole-life orders in the UK.

This decision is available online at: http://www.bailii.org/ew/cases/EWCA/Crim/2012/2435.html

Naomi Kinsella is an Australian lawyer currently working with the American Bar Association Rule of Law Initiative.